Bighorn Beverage

National Labor Relations Board - Board Decisions

Jun 7, 1978

236 N.L.R.B. 736 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bighorn Beverage and Teamsters Local No. 45, affili-
ated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America,
Ind. Case 19-CA-9223
June 7, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS PENEI.LO
AND TRUESDALE
On November 15, 1977, Administrative Law Judge
Roger B. Holmes issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief. Both the General Counsel
and the Charging Party filed briefs in support of the
Administrative Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and had decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modified
herein, and hereby orders that the Respondent, Big-
horn Beverage, Helena, Montana, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order, as so modified:
1. Substitute January 3, 1977, for January 6, 1977,
in paragraph 2(d).
2. Substitute the attached notice for that of the
Administrative Law Judge.
"Respondent has excepted to certain credibility findings made hs the
Administrative Law Judge It is the Board's established policy not to over-
rule an Administrative Law Judge's resolutions with respect to credibilitD
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect. Standard Dry Wall Products, In(, 91
NLRB 544 (1950). enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
2 The Administrative Law Judge found that Respondent embarked on its
course of unlawful conduct with the discharge of Mortensen and dated the
bargaining order from the day of that discharge. We, however, find that
Respondent's course of conduct started with its previous violations of Sec.
8(a)( ) of the Act. Since that unlawful conduct took place before the tInion
had achieved majority support in the unit, the bargaining order should he
dated from the date that the Union finally obtained a majority. JanuarN 3,
1977. Bandag. Incorporated. 288 NLRB 1045 (1977). see Beaole\, Energy,
Inc., Peaker Run Co/al Compant. Ohio Division #1. 288 NL.RB 93 (1977).
Accordingly, this Decision so modifies the recommended Order and notice.
In the absence of a bargaining demand, Chairman Fanning vwould issue a
prospective bargaining order only.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had the opportu-
nity to present evidence, it has been found that we
violated the National Labor Relations Act, and we
have been ordered to post this notice.
WE WILL NOT interrogate our applicants for
employment concerning their union member-
ship and sympathies.
WE WILL NOT utilize application for employ-
ment forms, in which the applicant for employ-
ment is requested to disclose whether or not he
is a member of a union, and, if he is a union
member, the local number and location of his
union.
WE WILL NOT discharge an employee because
of his activities in behalf of Teamsters Local No.
45, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen &
Helpers of America, Ind., or any other labor or-
ganization.
WE WILL NOT discharge an employee because
of his protected concerted activity under the Na-
tional Labor Relations Act of making a com-
plaint to an agency of the State of Montana re-
garding safety conditions at our facility.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of the rights guaranteed them by Sec-
tion 7 of the National Labor Relations Act.
WE WILL offer Barry M. Mortensen immediate
and full reinstatement to his former job or, if
that job no longer exists, to a substantially
equivalent position, without prejudice to his se-
niority or other rights and privileges.
WE WILL pay to Barry M. Mortensen the
amount of his loss of earnings, with appropriate
interest thereon, which resulted from out termi-
nation of him.
WE WILL recognize and, upon request, bargain
collectively with Teamsters Local No. 45, affili-
ated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen & Helpers of
America, Ind., as the exclusive collective-bar-
gaining representative since January 3, 1977, of
our employees in the appropriate unit described
below:
236 NLRB No. 85
736
BIGHORN BEVERAGE
All warehousemen and driver-salesmen em-
ployed by Bighorn Beverage at our Helena.
Montana, location, but excluding all other
employees, guards, and supervisors as defined
in the Act.
BIGHORN BEVERAGE
DECISION
STATEMENT OF THE CASE
ROGER B HOLMES. Administrative Law Judge: The origi-
nal unfair labor practice charge in this case was filed on
February 7, 1977, by Teamsters Local No. 45, affiliated
with International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, Ind., herein called
the Union. The amended unfair labor practice charge was
filed on March 28, 1977, by the Union. The complaint was
issued on March 30, 1977, on behalf of the General Coun-
sel of the National Labor Relations Board, herein called
the Board, by the Regional Director for Region 19.
The General Counsel's complaint, as amended at the
hearing, alleges that Bighorn Beverage, herein called the
Respondent, has engaged in unfair labor practices within
the meaning of Section 8(a)(1) and (3) of the National La-
bor Relations Act, as amended, herein called the Act. The
Respondent filed an answer to the complaint and denied
the commission of the alleged unfair labor practices.
The hearing was held before me on June 21 and 22,
1977, at Helena, Montana. Counsel for the General Coun-
sel, the attorney for the Charging Party, and the attorney
for the Respondent each filed a timely brief by the due
date of August 15, 1977. Those briefs have been read and
considered.
In the posthearing brief filed by counsel for the General
Counsel there is a request for permission to amend the
General Counsel's complaint to add an additional allega-
tion of a violation of Section 8(a)(l) of the Act. In view of
that request, attorney for the Respondent additionally filed
"Respondent's Brief in Opposition to General Counsel's
Motion to Amend the Complaint," which was received on
September 12, 1977. That matter raised by the parties has
also been considered and will be discussed later herein.
Upon the entire record in this proceeding and based
upon my observation of the demeanor of the witnesses, I
make the following findings of fact.
FINDINGS OF FACT
I. JURISDICTION
Since June 1977, the Respondent has been a Montana
corporation. Prior thereto, the Respondent was a sole pro-
prietorship of Gerald Stephen Maykuth. The Respondent
has an office and place of business in Helena, Montana,
where it is engaged in the wholesale distribution of beer.
During the year 1977, the Respondent purchased and
caused to be transferred and delivered to its Helena, Mon-
tana, facility goods and materials valued in excess of
$50,000, which were transported to Montana directly from
States other than the State of Montana.
Upon the foregoing facts and the entire record in this
proceeding, I find that the Respondent has been at all
times material herein an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II THE LABOR ORGANIZATION INVOLVED
It was admitted in the pleadings that the Union has been
at all times material herein a labor organization within the
meaning of Section 2(5) of the Act. Accordingly, I find that
fact to be so.
III. THE ALILEGED UNFAIR LABOR PRACTICES
A. The Issues
The principal issues raised by the pleadings are:
1. Whether the Respondent in November 1976 interro-
gated applicants for employment regarding their union
membership and sympathies, and whether the Respondent
thereby violated Section 8(a)(l) of the Act?
2. Whether the Respondent on January 6, 1977, dis-
charged Barry M. Mortensen because of his union activi-
ties, and/or because of his protected concerted activities-
specifically, his making a complaint to an agency of the
State of Montana regarding safety conditions at the Re-
spondent's facility. If the Respondent did so, did the Re-
spondent thereby violate Section 8(a)(I) and/or (3) of the
Act?
3. If the Respondent did engage in the unfair labor
practices alleged by the General Counsel to have taken
place, should the Respondent be required to recognize and
bargain with the Union in an appropriate unit, as one of
the remedies to be imposed because of the unfair labor
practices?
4. If the entry of a bargaining order as a remedy is war-
ranted by the nature of the unfair labor practices, whether
the Union represented a majority of the employees of the
Respondent in an appropriate unit?
5. Whether the General Counsel should be permitted to
amend the complaint by adding still another unfair labor
practice allegation after the hearing has been concluded?
6. If the General Counsel's request is granted, whether
the Respondent's use in November 1976 of application
forms from an agency of the State of Montana, in which a
question was asked regarding the applicant's union mem-
bership, violated Section 8(a)(1) of the Act?
B. The Witnesses
Barry M. Mortensen worked for the Respondent for
only I month's time, from December 6, 1976, to January 6,
1977. He was hired by the Respondent in the job classifica-
tion of driver-salesman.
Mortensen is the alleged discriminatee in this proceeding
and that fact has been weighed in assessing his credibility
since he has an obvious interest in the outcome of the liti-
gation. Nevertheless, Mortensen was an impressive witness
737
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on the stand, and he seemed to be telling the truth to the
best of his ability to recall these events. He gave the im-
pression of being a witness who was honestly relating the
facts.
Accordingly, I have credited Mortensen's testimony
throughout this Decision and have based findings of fact
upon his versions of the events. Where the testimony of
other witnesses is in conflict with Mortensen's version, I
have accepted his account of the events as being the more
reliable and accurate recitation. However, I have also
based findings of fact upon the testimony given by other
witnesses, and also upon documentary evidence which was
introduced at the hearing.
Gerald Stephen Maykuth was president of the Respon-
dent at the time of the hearing. On June 11, 1976, Maykuth
was appointed by Coors Brewing Company as the distribu-
tor of its products in Helena, Montana. While some find-
ings of fact herein are based on Maykuth's testimony,
where there are conflicts between his versions and the ver-
sions given by Mortensen I have credited Mortensen's ver-
sions.
Thomas Winans Ager worked for the Respondent from
December 6. 1976, until February 18, 1977. Until April 19,
1977, his last name had been Edie, but it was changed at
that point in time for personal reasons. While the witnesses
in this proceeding generally referred to him by his former
name because that was the name familiar to them, I have
attempted in this Decision to use his correct name.
After Ager had resigned from employment with the Re-
spondent, some people asked him why he was no longer
working at Bighorn Beverage. Ager testified on cross-ex-
amination by the attorney for the Respondent:
Q. [By Mr. Waite] But you admit that you have had
one or more conversations with various people in
which you may have said that you do not like Jerry
Maykuth, is that true?
A. I think that's a little misleading.
Q. Well, explain your answer then.
A. I've seen several---one or two people that have
asked me why I'm not working at Bighorn Beverage
any more. If I was, how things are going. And, I told
them I had another job, and I was very pleased with
my job--a job that I had been promised prior to work-
ing for Bighorn Beverage. And, I said at the time that
I didn't particularly like the way Mr. Maykuth ran his
operation, and I didn't like him personally. That's
true.
Q. But you do admit you said those things?
A. That's correct. That's a personal opinion, Mr.
Waite.
In weighing the credibility of Ager, I have considered the
foregoing expression of his personal opinion as well as the
fact that Ager and Mortensen became friends after their
employment by the Respondent. Both of them had previ-
ously attended at the same time the University of Mon-
tana, which is located at Missoula, Montana. While they
had met each other prior to their employment by the Re-
spondent, they had not been personal friends. Notwith-
standing his personal viewpoints, it did not appear that
Ager was biased against the Respondent to the extent that
he would fabricate his testimony in this hearing. Accord-
ingly, some of the findings of fact have also been based
upon his credited account.
Wayne Eugene Helmbrecht has worked for the Respon-
dent since December 6, 1976. At the time of the hearing,
his job classification was that of draft manager for the Re-
spondent. Helmbrecht was the only witness in this pro-
ceeding who was called as a witness both by counsel for
the General Counsel and by the attorney for the Respon-
dent. As will be indicated later, certain findings of fact
have been based on his credited testimony.
Charles D. Phelps was not employed at the time of the
hearing. Phelps had previously been employed by the Re-
spondent from December 6, 1976, to April 15, 1977.
Phelps had the title of warehouse manager although he
was not told that he had the authority to hire, fire, or in
any other way oversee the work of any employees, nor was
he told that he was a supervisor. His duties while working
for the Respondent involved maintaining the orderliness of
the warehouse, keeping a running inventory of the prod-
ucts, working as a forklift operator and a mechanic, and
doing anything else that needed to be done in the ware-
house.
Gary Douglas Drosten is an advertising representative
for radio station KMTX in Helena, Montana. He recalled
having a conversation with Phelps, whom he recognized at
the hearing, sometime in April 1977 at a lounge for dining
and dancing, known as the Black Sands.
Drosten was seated at a table with Phelps and a lady
while they were drinking alcoholic beverages. Drosten said
that he recognized Phelps as being a person whom he had
previously seen wearing a Coors shirt, so he brought up the
subject of how Coors was selling. Drosten testified on di-
rect examination by Respondent's attorney:
Q. [by Mr. Waite] And who brought up the subject
of Bighorn Beverage and Mr. Maykuth?
A. I did. I asked how Coors was selling.
Q. What did he say?
A. He said he didn't know. As far as he was con-
cerned, the whole thing was a big mess, and this and
that, and he was being mistreated. He had helped start
the company, and he felt he wasn't getting a fair deal
out of the thing, and as far as he was concerned
"pffft" on the company.
Q. Did he indicate whether he was still employed
by the company?
A. I think he mentioned that he just quit, or got
fired or something like that-mutual agreement.
Q. Did he say anything else about-did he say any-
thing further?
A. No. He just said that he was a crook and this
and that and etcetera, you know, that the whole thing
was a mess basically.
Q. Did he use the word "he," or did he indicate
who he was referring to when he said "he."
A. He didn't give any names. He just said "he," and
I'm assuming when someone says "he" it's either in
general as a corporation or, you know, looking at an
individual as a corporation.
738
BIGHORN BEVERAGE
Q. Did he mention the name Bighorn Beverage in
the conversation?
A. If he did, I don't remember.
Q. Was there any discussion about his separation
pay?
A. No.
Q. Can you tell me anything further about that con-
versation?
A. That's about it.
The foregoing is based on the testimony of Drosten. Al-
though Phelps was recalled as the next witness after Dros-
ten had testified, Phelps did not contradict nor dispute the
foregoing testimony of Drosten. Phelps acknowledged that
he went to the Black Sands regularly and, while he said
that he had never heard of Gary' Drosten, he acknowledged
that it was possible that he had spoken to someone at the
Black Sands in April 1977 regarding Coors, Bighorn Bever-
age, or Maykuth.
In these circumstances, I have accepted Drosten's un-
contradicted testimony as being factual, and I have credit-
ed Drosten's version of the conversation. While Phelps'
personal opinions regarding the Respondent have been
considered in evaluating the credibility of Phelps, his man-
ner in testifying at the hearing did not exhibit such bias or
hostility towards the Respondent as would indicate that he
was not telling the truth. That, of course, does not indicate
approval or disapproval of Phelps' personal opinions, or
whether he is correct or incorrect in his views. The point is
that his personal views toward the Respondent are matters
which have been considered in testing the reliability of his
testimony regarding the Respondent. As will be indicated
later, certain findings of fact have been based on his credit-
ed testimony.
C. A. Christofferson has been a self-employed construc-
tion contractor since 1958. He described himself as being a
friend of Maykuth in addition to their business relation-
ship. Christofferson has been a preacher for about 30
years, and at the time of the hearing he was the pastor of
the Faith Tabernacle.
Paul Christofferson is a son of C. A. Christofferson and
has worked for his father as a journeyman carpenter. He is
a member of the Carpenter's Union.
Roger Barry has been a carpenter's apprentice for Chris-
tofferson Construction since October 1976. He was still
employed by Christofferson at the time of the hearing.
Certain findings of fact have been based on portions of
the testimony of the three witnesses named above.
C. The Interviews
Mortensen said, "I was working with the State Employ-
ment Service-the same people who were handling the ap-
plications for Bighorn Beverage--and found out about the
position, received an application. and sent it directly to Mr.
Maykuth."
Mortensen had two interviews with Maykuth during the
week before Thanksgiving at Maykuth's house. During the
interviews, Maykuth inquired as to why Mortensen wanted
the job and they discussed his physical fitness for that type
of work. In addition, they talked about his interests in
hunting and fishing.
In one of those interviews Maykuth asked Mortensen
whether he was in favor of the Union. Mortensen respond-
ed, "I do not need a Union on this job."
Maykuth testified that Mortensen volunteered that he
did not need a union on that job, but that he did not ask
Mortensen.
Ager was interviewed twice by Maykuth in mid-Novem-
ber 1976 after Ager had gone to the State Employment
Office where his application and others were sent to May-
kuth. With regard to his interviews by Maykuth, Ager said,
"I was asked questions relating to religion, drinking habits,
political leanings. and if I had ever been a member of any
Union." Ager testified that his reply was no.
Helmbrecht recalled being interviewed on two occasions
by Maykuth. One was before Thanksgiving in 1976 and the
other one was just before he was hired. He said that, while
Ma)kuth was going through the application, Maykuth
asked him if he was a member of a union, and Helmbrecht
replied no.
At the time that the Respondent's warehouse was being
constructed, Phelps was employed by the Helena Sand and
Gravel Company, which was furnishing the dirt fill for the
ground on which the warehouse was to be built. One day
while Phelps was making delivery there, he talked to May-
kuth. who told him that the Montana Job Service was han-
dling the applications. Therefore, Phelps went to that agen-
cy and submitted an employment application through
them.
After Phelps' employment application had been submit-
ted, he had two interviews with Maykuth at his house in
the valley. The first interview was on November 17, 1976,
and the second interview was about 7 or 8 days later.
WVhile Phelps recalled that many things were discussed
during the first interveiw with Maykuth. he could pinpoint
only two topics. He testified: "One was my social affilia-
tions with the various groups in the community, and anoth-
er was my feelings toward unions."
Phelps stated that Maykuth asked him what his feelings
were toward unions, and that Phelps told him that he was
a member of the Teamsters Union, but Phelps said that
would present no problem with regard to his going to work
for the Respondent because he could get a withdrawal
card. Phelps testified that he also told Maykuth: "I could
go either way, either union or non-union, providing the
money was right." Phelps said during cross-examination at
the hearing that he was certain that Maykuth was the one
who brought up the subject of the Union.
With regard to Phelps, Maykuth testified that he did not
ask him if he was for the Union. According to Maykuth, all
that was said regarding a union was that Maykuth in-
formed him that in his contract with Coors there was a
clause which stipulated that Maykuth must deliver beer to
every account once a week, and that refusal to cross picket
lines was no excuse for denying service to an account.
After considering all of the foregoing, I have decided to
base the findings of fact in this section on the testimony
given by Mortensen, Ager, Helmbrecht, and Phelps, whose
versions have been credited for the reasons discussed previ-
ously concerning the witnesses in this proceeding.
739
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. The Application Forms
Phelps gave the following testimony during cross-exami-
nation by the attorney for the Respondent with regard to
his application for employment form, which was thereafter
introduced .in evidence as Respondent's Exhibit 1:
Q. [By Mr. Waite] I'm going to hand you what has
been marked as Respondent's Exhibit I and ask you if
you can identify it. Now, have you seen that document
before?
A. I haven't seen this one before because it's a du-
plicate.
Q. Does this appear to be a copy of a document
you have seen before?
A. This appears to be a copy of the original that I
filled out, yes, sir.
Q. Is that your handwriting or printing?
A. Yes, sir, it is.
Q. Can you tell us what it is?
A. It's an application for employment.
Q. And whose application is it, or from whom did
you get the application?
A. From the Montana Job Service.
Q. This is from a State Employment Agency then?
A. Yes, sir.
Q. And does that application contain a question as
to your affiliation with a Labor organization? I direct
your attention to the lower, lefthand portion.
A. I don't see it, sir.
Q. I direct your attention to the middle of the docu-
ment. Does it contain a question and your answer to
whether you belong to any labor organization?
A. Yes, sir. Block 32 does.
Q. And what does it indicate?
A. It infers as to whether you are a member of a
Union or not.
Q. And what was your answer?
A. Yes.
Q. And does it indicate the name of the Union?
A. Local 45.
Q. Teamsters Local 45?
A. Right. It's not indicated as Teamsters on there,
sir, but 45.
Q. Now, at the time-You filled out this applica-
tion I take it?
A. Yes, I did.
Q. And what did you do with it thereafter?
A. Returned it to the Montana Job Service.
Q. Did Maykuth, to your knowledge-Did you
ever see Mr. Maykuth with a copy of this, or the origi-
nal of this application?
A. Yes, sir. He had a copy of it, whether it was the
original, I don't know. He had a copy in his possession
the night I was interviewed.
Q. This would have been the 17th of November?
A. Either the 17th or the week thereafter.
The application form is two pages long and contains 34
specific inquiries as well as space for listing specific details
regarding the applicant's "Important Civilian and Military
Experience" starting with his most recent job. ,
Item 32 is the one on which counsel for the General
Counsel predicates his request to amend the complaint to
allege that the Respondent's use of the application form
constitutes a violation of Section 8(a)(1) of the Act. Item 32
has a "yes" box and a "no" box to check whether or not
the applicant is a union member, with blanks for the num-
ber and location of the local.
The foregoing findings of fact are based on the testi-
mony given by Phelps and documentary evidence (see
Resp. Exhs. 1 and 6).
Maykuth testified that he interviewed 50 - 60 people for
employment, including Mortensen, Phelps, Ager, and
Helmbrecht, in November 1976. He said that he used ap-
plications supplied to him by the Montana Job Service.
The forms were generally the same as Respondent's Ex-
hibit I, except for Ager's application form. Maykuth testi-
fied on direct examination:
Q. [By Mr. Waite] Directing your attention to No-
vember of 1976, did you seek applicants for work as
account representatives or driver-salesmen?
A. Yes. I began interviewing people some time
probably before the middle of November.
Q. Okay. How did you seek applicants?
A. Well, there was a few people stopped off at the
site, like Charlie Phelps, Wayne Helmbrecht and
others, and I referred them to the Montana Job Ser-
vice because Mr. Mickey Hines had approached me
and offered the services of the Montana Job Service.
He told me they would take a lot of work off my
hands, they would furnish forms, do initial screening,
and it sounded like a good idea. It wasn't going to cost
me anything, and I was very busy at the time, so I told
them "fine," and I referred everybody to Montana Job
Service.
Q. For the benefit of the non-Montanans in the
room, what is the Montana Job Service?
A. What is it?
Q. Yes.
A. Well, it is a division of the State of Montana to
find jobs for people.
The foregoing findings are based on documentary evi-
dence and on the testimony given by Maykuth.
E. The Respondent's New Business
Maykuth hired four employees in the latter part of No-
vember 1976 to begin work on December 6, 1976. He iden-
tified them as Mortensen, Helmbrecht, Ager, and Phelps.
Later on, Maykuth also hired William Plank as office man-
ager.
Maykuth described the training of the four employees as
follows on direct examination:
Q. [By Mr. Waite] Did they undergo training with
respect to the products you would be selling?
A. They did.
Q. Would you briefly describe the training they un-
derwent?
A. Yes. For three and a half or four days they had
a training seminar at my home, and our brewery rep-
740
BIGHORN BEVERAGE
resentative from Montana came in with a slide presen-
tation and documents and put on a seminar for us.
and then a little bit later date I sent all of the men to
Bozeman to a distributorship which is operating so
they could get some on-the-job training. And we also
had some training in the aspect that they took the
trucks to get used to driving the trucks. They went out
to learn the routes and to meet the account, and to
explain to people what our target date was for intro-
ducing beer into the area. All told, they spent nearly
two weeks in training.
Site preparation for the facility to be constructed for the
Respondent had begun in September 1976. Maykuth first
anticipated that construction would be completed by
Thanksgiving in 1976, but later he hoped to introduce
Coors beer in the area the week before Christmas in 1976.
Due to various problems, however, the Respondent did not
actually begin selling beer until January 26, 1977. Maykuth
pointed out that the facility was still not complete by the
time of the hearing in this proceeding.
Maykuth made an attempt to obtain beer from other
warehouses so that business could commence, but just
shortly before Christmas his efforts were denied at the vice
president level of Coors. Maykuth gave compassionate rea-
sons for not laying off his employees at that time. He testi-
fied on direct examination:
They had served notice and quit their jobs. They
couldn't go back. I didn't know if they could qualify
for unemployment compensation. I felt a commitment
to the people. I didn't feel they were qualified or had
the experience to work on the construction job. but I
felt an obligation to see that they had money to live on
until they could start the work they were hired to ful-
fill.
Maykuth functioned as his own general contractor and
material supplier. He entered into verbal agreements with
various subcontractors to construct a masonry block build-
ing of 15,300 square feet. One of those subcontractors was
C. A. Christofferson, whose crew performed the carpentry'
work on the building. Maykuth paid Christofferson on an
hourly basis for work performed.
Maykuth said that he told Christofferson to keep them
busy when he needed help, and that he told the employees
that they were to comply with everything that Christoffer-
son asked them to do. Maykuth said that Christofferson
offered to put the employees on his own payroll but, for
economic reasons, Maykuth declined that offer since May-
kuth had agreed to pay Christofferson 25 percent above the
hourly wages to cover his insurance.
During his I month's employment by' the Respondent,
Mortensen spent about 3-1,'2 days of that period in train-
ing. The majority of that time was spent in general con-
struction work at the Respondent's facility. but Mortensen
said that he did some visiting of the accounts. He said that
the Respondent did not begin distributing beer until after
his termination by the Respondent.
Mortensen acknowledged that on occasions he did work
under Christofferson for specific jobs, but that he was nev-
er instructed by Maykuth that Christofferson was to super-
vise his work. He said that Christofferson had six to seven
people in his own crew.
Although Mortensen liked construction work, he admit-
ted that on various occasions he complained that he want-
ed to get on with the job of driving trucks, rather than
construction work. However, he said that he did not tell
Maykuth that he did not like construction work.
During cross-examination by the attorney for the Re-
spondent, Mortensen was confronted with his affidavit,
which was described by counsel for the General Counsel
on the record as being a nine-page, handwritten affidavit
dated March 7, 1977. Mortensen acknowledged that, in the
affidavit, he had stated: "it was in the second week that we
began to get slowly dragged into doing construction work
on the warehouse building." Mortensen said that the state-
ment was true in his affidavit but, nevertheless, he said that
he did enjoy performing construction work.
His employment application form was introduced in evi-
dence as Respondent's Exhibit 6. An examination of that
document indicates that his most recent employment at
that time had been with the State of Montana Employment
Service as an interviewer for 6 weeks and later for about 8
months as a job developer in the WIN program. However,
his previous jobs indicate ones where more physical work
would have been likely to be required. For example, "Ser-
vice Station Manager in Yellowstone Park" for 5 months:
"Interregional and District Firefighter" with the U.S. For-
est Service for 3 months; "Cleanup man on a rock crushing
operation" for a construction company for 3 months, and
"pulled green chain and picked edgings in a lumber pro-
cessing mill" for a lumber company for 1-1/2 years.
Ager said that after he began working for the Respon-
dent on December 6. 1976, that the first 4 to 4-1/2 days
were spent in training. Then the employees performed con-
struction work at the Respondent's facility until about a
week or a week and a half prior to January 24, 1977. At
that time, he said that they went out and hung up advertis-
ing. The beer arrived on January 24. 1977.
At the State Employment Service, Ager had been told
that the job was that of a driver-salesman. He also heard
Maykuth use that term. However, he acknowledged that
the term "account representative" was printed on the busi-
ness cards for their use.
During his first 4 days of employment. Phelps attended
training sessions at Maykuth's house. Afterwards, he
worked on the general construction of the warehouse. He
stated that Maykuth told him that they would be working
in conjunction with Christofferson and his crew, but May-
kuth did not say that Christofferson was to be their super-
visor. During a few days in that period of time, he said that
he made calls on prospective customers to inform them as
to the progress being made.
Phelps said that there were a total of four employees of
the Respondent working during the construction phase,
and a total of five full-time employees and one part-time
employee after the construction was completed. He said
that beer deliveries began on January 24, 1977.
Christofferson said that he began work on the Respon-
dent's building in October 1976: that he had a crew of five
or six employees. He estimated that the building was only
three-fourths completed by the time of the hearing in June
1977.
741
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With regard to Maykuth, Christofferson said that "He
was there practically all of the time, too." However, at least
a half dozen times Maykuth would have to go to other
places, so he asked Christofferson, "Would you keep my
crew busy while I'm gone?"
When the employees of Maykuth began work, Christof-
ferson offered to have them put on his own payroll, "but he
didn't want to do that because they were his truck drivers,
and he had already given them their initial training, or
indoctrination I guess you'd call it."
Paul Christofferson said that Maykuth "on a couple of
occasions, told my Dad to keep them busy because he was
going to be gone."
Barry recalled that I day Maykuth told his employees
that he had to do something, so that they were going to
work with Christofferson's crew.
The findings of fact in this section have been derived
from the testimony of Maykuth, Mortensen, Ager, Phelps,
C. A. Christofferson, Paul Christofferson, and Barry.
There are some variations in the recollections of the wit-
nesses on some matters; for example, the number of days
spent in training and the date for selling beer by the Re-
spondent. These variations do not seem to be particularly
significant in determining the issues raised by the pleadings
in this case. It seems clear, and I find, that the employees
did spend several days in training for the driver-salesmen
jobs, and that beer sales from the Respondent's facility did
not commence until January 24 or 26, 1977.
A more significant matter involves the instruction which
Maykuth asserted that he gave to the employees that they
were to comply with anything Christofferson asked them to
do. For the reasons discussed under the section entitled,
"The Witnesses," I have accepted Mortensen's version that
he worked on occasion under Christofferson for specific
jobs, but that he was not told by Maykuth that Christoffer-
son was to supervise his work.
F. Comments on the Job Performance of Mortensen
Mortensen acknowledged at the hearing that he had left
the Respondent's building a lot because of the fumes in the
building and in order to go to the bathroom. There was no
bathroom in the Respondent's facility at that time, but the
Helena airport was nearby within 2 or 3 minutes' walk.
There were occasions during Mortensen's employment
when Maykuth came looking for him and sent him back to
work. Mortensen did not complain to Maykuth on those
occasions about the fumes in the building.
Mortensen described only one occasion when he had re-
ceived a warning from Maykuth. That occurred I day prior
to Christmas 1976 when Mortensen was ill and did not
report for work until 1 p.m. on that day. Maykuth inquired
where Mortensen had been, and Mortensen told him that
he had been sick. Maykuth said something to the effect
that he did not know where Mortensen was, or that he
wanted to know when Mortensen was going to be absent.
Maykuth told him to call in the next time.
At the hearing, Mortensen explained that he had tried to
contact Maykuth by telephone between 8:30 and 8:45 that
day. However, there was no answer at Maykuth's house
when Mortensen called. At that point in time, there was no
telephone at the Respondent's facility, which was still un-
der construction.
On one occasion Mortensen and Ager took the truck to
dump lumber. First, they unloaded some two-by-four's at
Helmbrecht's house, and then they unloaded the rest of the
truck at Ager's house. Mortensen said that there was a
hydraulic lift on that truck, but that they had not been
instructed on how to operate it.
On a day sometime prior to Christmas 1976, Ager took a
long lunch hour. He estimated that he took approximately
20 minutes longer than previously. After he returned to
work, Ager explained to Maykuth the reasons for his long
lunch hour. That evening, Maykuth requested that Ager
come over to his house to fill out a W-2 form which
Maykuth's accountant wanted by the next morning. When
Ager went to Maykuth's house, Maykuth asked him why
he had taken a long lunch hour that day. Ager explained
about his meeting his wife for lunch that day and his hav-
ing to go to the bank at noon.
Maykuth told Ager that was not acceptable and that
Maykuth wanted to know about it in the future. Ager ex-
plained that it was a last-minute situation, and Maykuth
accepted that explanation.
In that same conversation, Maykuth also told Ager that
Mortensen had not shown up for work that day until after
lunch, and that Mortensen had claimed he was sick. May-
kuth told Ager that he was unhappy about that, and that it
was not acceptable.
Ager said that he told Maykuth during their conversa-
tion that he was disappointed that they were still not deliv-
ering beer, and that he was really looking forward to doing
so, and was disappointed that they had not started. Ager
also inquired about signing the W-2 form, which Ager
signed at the end of the conversation.
Maykuth's version is that he called Ager and asked him
to come to his house that evening to sign his W-2 form.
While Ager was there, Maykuth said that he questioned
him regarding Ager's extended lunch hour that day. May-
kuth stated that Ager was gone for 2 hours and that he had
been left at the jobsite by himself. Ager offered him the
explanation that he had run some errands for his wife.
Maykuth described Ager as being "hostile" regarding
their conversation. Maykuth was of the opinion that Ager's
performance "improved dramatically" after Mortensen's
termination.
According to Maykuth, Mortensen would disappear
from the job. He gave this description on direct examina-
tion:
Q. [By Mr. Waite] Starting-we'll try to do this
chronologically, if I can. Starting with mid-December,
were there occasions when you observed that he was
absent from work?
A. He started disappearing from the job very soon
after we got working down there.
Q. Would you explain-Can you give me any spe-
cific examples at this point of what you are talking
about?
A. Yes. I would assign the people work, and there
weren't that many people in the building, and I would
742
BIGHORN BEVERAGE
periodically make a round of the building to see how
things were going, and very soon I would discover that
Mr. Mortensen was gone. Often times both he and
Mr. Edie were gone. On some occasions I would ob-
serve the two of them strolling over to the airport ter-
minal. That was the only bathroom facility there. but I
would notice they would take quite extended bath-
room breaks running up to a half hour or so. T here
were coke machines and that type of thing over there.
but there were also occasions when he had been as-
signed to help Christofferson, and Christofferson
would come to me and ask where Barr) was and/or
Tom, and I would say, "I thought he was with you."
One particular occasion we searched the entire build-
ing. Christofferson went around the outside of the
building in one direction. I went the other. We met
head-on, and I couldn't find them, so I climbed on top
of the roof to see if they were doing something up
there, and they weren't up there. I walked over the
airport terminal. They weren't in the "John," so I
walked over to Morrison Flying Service and checked.
They were no place on the site.
Q. How far is the airport from the building?
A. Three or four hundred feet, a city block.
Q. How far is the Morrison Flying Service?
A. About the same distance across the street.
Q. Now, is it your testimony there was one occa-
sion, or more than one occasion, that they were ab-
sent?
A. That's correct. There were even times I started
finding Barry's car would be gone, so I would get in
my truck and I would drive the whole area looking for
him.
Maykuth said that when Mortensen did not arrive until
I p.m. on December 22, 1976, he asked him what had hap-
pened. Maykuth said that Mortensen told him that he was
sick. Maykuth stated that he told Mortensen he would ap-
preciate being advised when he was not coming in. and if
there was ever any reason for Mortensen to be off of the
jobsite, Maykuth wanted to know about it.
Maykuth related another incident which he said took
place after Christmas. He stated that Mortensen was not
performing his assigned task, but instead he was straighten-
ing up a pile of lumber. Maykuth said that he told Morten-
sen that job was not what he had told Mortensen to do. On
still another occasion, Maykuth said that Mortensen and
Ager took 2-1/2 days to accomplish a 3-hour task of in-
stalling an extension on a door.
Helmbrecht was the one who informed Maykuth of a
conversation with Ager regarding the unloading of a truck-
load of scrap. In Maykuth's view, the job should have tak-
en 30 - 45 minutes, rather than the 3 hours that Mortensen
and Ager spent.
According to Maykuth, Helmbrecht told him that he
had talked with Ager, who said that they had unloaded the
truck by hand because "it was such a nice day . . . " and
they did not have to come back to the warehouse and do
any more work. Maykuth said at the hearing that it was
after the foregoing conversation with Helmbrecht that he
made up his mind to terminate Mortensen "if there was
another incident. . " because Maykuth felt that he could
not carrv Mortensen until thev got into business.
Helmbrecht said that on a couple of occasions Christof-
ferson asked him if he had seen Mortensen, and that Helm-
brecht had said that he did not know where he was. In
Helmbrecht's opinion, Mortensen and Ager were "talking
together all of the time" while the)y were employed by the
Respondent. Helmbrecht said that all of the employees
were unhappy because they were not yet in business, but he
felt that Mortensen was unhappy with the construction
work. He said Mortensen would get mad and kick a board
or something.
Barry worked on the construction of the Respondent's
warehouse. During that time, he worked with Mortensen
on two occasions, but he saw him on other occasions on
the job. He expressed the view at the hearing that Morten-
sen "would be gone when I really needed him, or wouldn't
be there to work. He didn't stick around very much." Barry
said that Mortensen complained to him several times that
Mortensen was being paid to be a truckdriver, not for
being a laborer.
C. A. Christofferson stated that he observed Mortensen
talking with Ager about a dozen times. Sometimes he said
that he said nothing to them because they were under
Maykuth's jurisdiction, but on other occasions he told
them to "get on the ball and help." He recalled one inci-
dent when they were gone for a couple of hours while they
were hauling a load of scrap in his GMC truck with a hoist.
He said that took place prior to Christmas. Christofferson
said that he talked to Maykuth two or three times and
expressed his opinion that Mortensen and Ager were not
doing their work properly. Fie was of the view that after
Mortensen's termination Ager improved by working hard-
er.
Paul C'hristofferson began working on the Respondent's
building in September 1976. After Mortensen began work-
ing there. Paul Christofferson did not work with him per-
sonally: however, he saw Mortensen at the building. "Just
in passing. Probably four or five times a day, you know. It
was a big building." In Paul Christofferson's opinion, Mor-
tensen was not a good employee: "Well, because he-he
just didn't work. I mean, he didn't even really try to work."
With regard to Ager, Paul Christofferson was of the
opinion that his work was all right, but that Ager did not
work very hard. He said that Ager and Mortensen were
absent from the building "many times." However, after
Mortensen was terminated by the Respondent, Paul Chris-
tofferson was of the view that Ager worked harder. He
explained: "Hle didn't go over to the airport and spend
time there. He did not stand around and talk to other peo-
ple."
The foregoing comes from testimony given by Morten-
sen. Ager. Maykuth, Helmbrecht, Barry, C. A. Christoffer-
son, and Paul Christofferson. Clearly, much of this repre-
sents personal opinions and conclusions drawn by the
individual person involved. Some of the differences among
the viewpoints of the witnesses can be attributed to their
different viewpoints, perspectives, and subjective feel-
ings. Nevertheless. there is no question that Mortensen was
away from the facilitv on various occasions because of the
funies there and in order to use the bathroom facilities at
743
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the nearby Helena airport. Mortensen readily acknowl-
edged that. He also acknowledged reporting for work at I
p.m. I day, but he explained to Maykuth that he was ill.
Maykuth acknowledged that was the reason given to him
by Mortensen on that occasion. Ager's taking a longer
lunch hour to run errands for his wife appears to be a mere
coincidence.
With regard to the truck incident, it seemed to me that
Mortensen offered a plausible explanation for that unload-
ing task to take as long as it did. I have credited his testi-
mony for the reasons previously stated, and I do so again
here. I have based the findings of fact in this section on
Mortensen's testimony and, to the extent that the other
testimony does not conflict with his recital, I have also
based findings of fact on the testimony given by the other
witnesses named above.
G. The Conversations Among Maykuth and the
Christoffersons
Maykuth recalled that he had a conversation with C. A.
Christofferson and Paul Christofferson while they were in
their vehicle. Maykuth was in his truck at the time. He said
at the hearing that he had been looking for Mortensen for
about an hour and a half, and had gotten in his truck to
drive around the area. As Maykuth was returning to the
facility, he saw the Christoffersons leaving. He stopped and
asked them if Mortensen was back, or if they knew his
whereabouts. They said that they did not.
Maykuth said that he told Christofferson, "I've just
about had it with this guy. I'm going to have to let him go
if things don't improve."
C. A. Christofferson gave a different version of that
conversation which he said took place on December 23,
1976. According to his version, Maykuth did not ask only
about Mortensen but, instead, Maykuth asked if they had
seen both Ager and Mortensen. After he and Paul Chris-
tofferson said that they had not seen them, he said that
Maykuth told them, "I've about had it. I'm just going to
have to let them go because I can't afford to lose two truck
drivers simultaneously, so I don't know what I'm going to
do." C. A. Christofferson also related another conversa-
tion with Maykuth in mid-December 1976 in which May-
kuth asked him about Mortensen, and Christofferson said
that Mortensen would not work for him more than I day.
At that time, Christofferson said that Maykuth told him
that Maykuth was thinking about terminating both Ager
and Mortensen.
Maykuth testified that on another occasion he was also
in his truck and was looking for Mortensen when he saw
Paul Christofferson. Maykuth asked him if he had seen
Mortensen, and Christofferson replied that he had not seen
Mortensen all morning. Maykuth stated to him, "Well, it
don't look like things have been getting any better, does it'?
. I'm not going to have much choice but to let him go."
Paul Christofferson also gave a different version of that
conversation with Maykuth. Paul Christofferson placed the
conversation as having occurred sometime prior to Christ-
mas 1976. In Christofferson's version, Maykuth did not
just ask about Mortensen's whereabouts but, instead, Mav-
kuth asked him where both Ager and Mortensen were at
that time. Christofferson replied that they were not back
yet. According to Paul Christofferson, Maykuth then said,
"Well, I'll just have to get rid of them; let them go, or
something like that."
In resolving the conflicts in the testimony between C. A.
Christofferson and Maykuth, and also between Paul Chris-
tofferson and Maykuth, I have decided to credit and ac-
cept the versions related by the Christoffersons. They
seemed to be positive in their testimony that Maykuth on
both occasions referred to both Ager and Mortensen. May-
kuth only mentioned Mortensen in his versions of these
conversations.
Paul Christofferson did not testify with regard to the first
conversation mentioned above where he and his father
were in the vehicle at the same time. Paul Christofferson
only related the second conversation mentioned above
when he was alone in the vehicle. For the reasons stated
above. I have based the findings of fact on the testimony
given by C. A. Christofferson and Paul Christofferson.
H. The Union Activities and the Representation Petitions
About the second week of Mortensen's employment by
the Respondent, Mortensen and Phelps talked about the
possibility of having a union represent them. Phelps said
that he had talked with a Teamsters representative.
Thereafter, Mortensen also spoke with a Teamsters rep-
resentative and obtained union cards from him. Mortensen
said that the Teamsters representative told him that the
purpose of the cards was to apply for membership in the
Union, and also that the card would authorize the Union
to be their bargaining agent.
Mortensen distributed the union cards to the other em-
ployees. There were four employees of the Respondent at
that point in time. They were: Mortensen; Thomas Winans
Ager, whose last name at that time was Edie; Charles D.
Phelps, and Wayne Eugene Helmbrecht.
Three of those four employees of the Respondent signed
union cards. Mortensen and Ager signed cards which are
dated December 23, 1976 (see G.C. Exhs. 3 and 4). Mor-
tensen said that Ager signed the card in his presence and
that Ager gave the card to him. Ager also testified that he
read and signed the card on the date indicated. Ager said
that Mortensen had given the card to him. Mortensen
mailed both of the cards to the Union at that time.
Phelps testified that he received a union card from Mor-
tensen. Phelps read the wording on the card, signed the
card on the date indicated on the card, which was January
3, 1977, personally filled out the information requested on
the card, and mailed the card to the Union in Great Falls,
Montana (see G.C. Exh. 2). Phelps said that he had been a
union member previously, but at the time he was an inac-
tive member with a withdrawal card from the Union.
The union cards state, inter alia (see G.C. Exhs. 2, 3, and
4):
1, the undersigned, hereby apply for admission to
membership in the above Union and voluntarily
choose and designate it as my representative for pur-
poses of collective bargaining, hereby revoking any
contrary designation. If admitted to membership, I
744
BIGHORN BEVERAGE
agree to abide by the Constitution of the International
as well as the Local Union Bylaws which are not in
conflict with the International laws.
A representation petition was filed by the Union on De-
cember 29, 1976, in Case 19-RC-8265 seeking an election
among the following employees of the Respondent: All
warehousemen and driver-salesmen, excluding guards, sup-
ervisors as defined in the Act and all other employees. (See
Resp. Exh. 3.)
On January 3, 1977, Maykuth received the representa-
tion petition from Region 19 of the Board. He said that he
did not have an opportunity to post it that day. However,
that evening Helmbrecht came by Maykuth's office, in-
quired how things were going, and asked when Maykuth
thought he would get into business. Maykuth said that it
looked like around the end of that month. Helmbrecht fur-
ther asked how things were going, and Maykuth mentioned
the petition which was on his desk. Helmbrecht asked him
what it was about, and Maykuth explained that it was from
the Union, but that Maykuth could not talk with him
about it. Maykuth said that he had to see an attorney and
he would advise the employees as soon as he found out
what he was supposed to tell them.
About 6 p.m. on January 3. 1977, Maykuth received a
telephone call at his house from Sam Kabanuck, a field
examiner from Region 19 of the Board. Kabanuck told
Maykuth that he would be coming out to talk with him
regarding the petition.
Maykuth told Kabanuck that he could see a problem.
Maykuth explained that he had been having a problem
with a couple of his employees, and he had made up his
mind to fire one of them, Mortensen. Maykuth said that he
had been reading the petition that he was not supposed to
let anyone go. Kabanuck replied that was correct only if it
related to union matters. Maykuth told Kabanuck that it
had absolutely nothing to do with the petition, and that he
had no idea who had initiated this or was involved in this.
Maykuth stated that, "This is strictly related to job perfor-
mance.
Kabanuck replied that was a "different matter." May-
kuth said that he wanted Kabanuck to be aware of it "be-
cause I expect repercussion from this." Kabanuck said that
he would contact Maykuth.
At the hearing, Maykuth acknowledged that in his state-
ment of position letter dated February 14, 1977, there was
no mention of his telling Kabanuck on January 3. 1977. of
his intention at that time to fire Mortensen. He also said at
the hearing that he did not recall whether or not he in-
formed Zane Lumbley, an agent from Region 19 of the
Board, that he had already made up his mind on January
3, 1977, to fire Mortensen.
Kabanuck did not testify and, therefore, Maykuth's tes-
timony regarding his conversation with Kabanuck is un-
contradicted and has been accepted as factual. (In a some-
what different context, compare the Board's comments in
an earlier case before me regarding the revocation of a
subpoena ad testificandum served on a field examiner in an-
other Region of the Board with regard to his testifying
concerning the contents of a union's business records
which he had investigated and his comments to an attorney
for the respondent in that case regarding the anticipated
dismissal of the unfair labor practice charge. Finally, Inc.,
d/b. a Palace Club, 229 NLRB 1128, fn. 3 (1977).
Around January 4 or 5, 1977, Maykuth handed the peti-
tion to Phelps and told him to post it in a conspicuous
place in compliance with the instructions. He told him that
it involved a petition to have a Union election.
On January 11, 1977, the representation petition in Case
19 RC-8265 was withdrawn.
Another representation petition was filed by the Union
on February 1, 1977, in Case 19-RC-8299 seeking an elec-
tion in the same unit of the Respondent's employees (see
Resp. Exh. 4). Both of the petitions were docketed and
served on the parties in the normal course of the mail.
The findings of fact in this section have been based on
the testimony given by Mortensen, Ager, Phelps, and May-
kuth, as well as on documentary evidence and stipulations
bN the parties.
1. The Carbon Monoxide Fumes Become a Problem
The weather was cold during the last part of December
1976 in Helena, Montana, with the temperature at times
going to 20 degrees below zero.
Mortensen said that carbon monoxide became a prob-
lem at the facility about the third week in December 1976.
He began opening doors and opening skylights, but he said
that Maykuth closed them several times afterwards. He
said that some of the employees began talking among
themselves regarding their headaches, but he never talked
to Maykuth about the problem. He overheard Phelps say
to Maykuth about the end of December that Phelps felt
"light headed." He also recalled that Ager, Phelps, and
Helmbrecht left work early on January 5, 1977, but he said
that he did not do so. Mortensen also said that Ager had
gotten sick after lunch on January 5, 1977.
Mortensen worked until 5 p.m. on January 5, 1977, and
he did not observe any hoses attached to the machines at
that time.
Mavkuth acknowledged at the hearing that he did close
the roof hatch because the weather was so cold. He said
that it was 20 degrees below zero that week. In his view,
leaving the roof hatch open merely let the warm air escape
off the ceiling, rather than the carbon monoxide fumes
near the floor.
Maykuth stated that five or six persons, who were either
his employees or who were from Christofferson's crew,
came to him on January 5, 1977, and told him that they
were not feeling well. Maykuth excused them from work.
He said that Mortensen was not one of those persons.
Later that day. Maykuth said that they tried to connect
some hosing to carry out the fumes, but the gases were too
hot and started to ignite the rubber hoses.
Ager recalled that he had discussed the carbon monox-
ide problem with Mortensen and also with Phelps.
Ager said that he became so ill at work about 1:30 p.m.
on January 5. 1977, that he went to the Helena Medical
Clinic and saw Dr. Hoopes. His physician informed Ager
that he was going to call regarding the problem.
A memorandum to the files by Bill Hooper of the State
Department of Health and Environmental Sciences was in-
745
DECISIONS OF NATIONAL L ABOR RELATIONS BOARD
troduced in evidence as Respondent's Exhibit 5. The memo
indicates that Dr. Hoopes did make a complaint to that
agency at 2:45 p.m. on January 5, 1977. Attached to the
office memo was a complaint form (see Resp. Exh. 5.1
which in pertinent part states:
COMPLAINT
Air Quality Bureau (
Water Quality Bureau (
Food & Consumer Safety Bur. (
Occupational Health Bureau (x)
Subdivision Bureau (
Solid Waste Management Bur. (
DATE: Jan. 15, 1977 TIME 2:45 pm
RE(CEIVED BY Bill Hooper (OMPLAINANT: Dr. Hoopes
ADDRESS
PHONI. NO 422 9523
NATURE OF (OMPLAINI: WHO: Patient treated for CO
poisoning
WHAl CO from concrete trucks--enclosed
WHEN: i/5/77
WHERE: Coors Big. (construction) on Airport Rd.
WHY: Close doors to keep concrete from freezing
REFERRED TO: Bill Hooper FOR ACTION
SUGGESTED ACTION: Measure with ecolyzer
In pertinent part, the memo to the files states:
TO Files
FROM: Bill Hooper
DATE 1/20/ 77
suBJEc-r Trip Report to the New Coors Warehouse,
Helena, on January 6, 7. and 8.
January 5--2:45 p.m.. Dr. Hoopes reported a case
of possible CO poisoning at the Coors warehouse con-
struction project.
January 6--10:00 a.m., Hoopes contacted owner
and construction contractor, Mr. Jerry Maykuth. Con-
crete was being poured. CO concentrations:
30 to 40 ppm-start
40 ppm after two trucks
Doors were open and two fans were being used. Mr.
Maykuth promised that the exhaust from the trucks
would be piped outside.
January 6-2:00 to 3:00 p.m., CO range-0-10-100'
ppm averaged under TLV.
January 6 4: 15 p.m., front end loader and back-
hoe being operated: CO-30 ppm increasing to 50-70
ppm. Mr. Maykuth ordered equipment stopped.
January 7-2:00 p.m., Hooper and Lloyd measured
60 to 70 ppm CO door opened-space heater placed in
door-CO decreased to 10-15 ppm.
January 8--Lloyd again inspected the premises.
During the evening of January 5, 1977, Mortensen tele-
phoned the Department of Health and Environmental Sci-
ences and talked with Benjamin Wake, whom Mortensen
described as being an administrator of that state agency.
Mortensen testified on direct examination by counsel for
the General Counsel:
I told Mr. Wake that there was numerous pieces of
equipment running in the building, the carbon monox-
ide was bad, and also Tom Edie had been poisoned by
carbon monoxide, and he said he would send an in-
spector out the next morning.
Following his conversation with Wake, Mortensen had
separate telephone conversations that evening with Phelps
and Ager, in which he told each one of his telephone call to
the Department of Health and Environmental Sciences
and that an inspector was going to come out to the build-
ing.
Helmbrecht said that he left work on January 5. 1977,
because he was kind of sick and had a headache. Helm-
brecht said that previously Maykuth had told the employ-
ees to take turns and rotate working inside the building.
C. A. Christofferson said that he was not bothered at all
by the fumes, but he knew that Ager became sick and that
Roger Barry did not feel good.
Christofferson said that he had a conversation with Mor-
tensen on the day after Ager and Barry got sick. He said
that he found Mortensen cleaning up some materials in
another room, and that Mortensen told him that he would
not work where there were fumes. Christofferson said that
he replied, "Well, that's fine. Just go ahead and do this."
According to Paul Christofferson, the carbon monoxide
fumes were bad I day when he had a headache and did not
feel good, but that, on the second day, the hoses were at-
tached to the truck. He said that he complained regarding
the fumes and that the employees talked about it.
In Barry's opinion, carbon monoxide was a problem at
the warehouse on only I day when they were pouring con-
crete in the room which was to be used as the cooler. He
said that everybody had headaches and nausea from the
fumes, but that the situation improved the next day after
hoses were installed.
Phelps said that the carbon monoxide became a problem
at the facility during the later part of December 1976 and
continued for about 8 days. He testified on direct examina-
tion by counsel for the Genral Counsel:
Well, I would go home each evening, for approxi-
mately an eight-day period there, ending, I think, it
was on the 5th of January. I would go home each
evening with a violent headache, I'd be flushed in the
face, feel lightheaded, and at times sick.
On cross-examination, Phelps related a specific incident
which had occurred on New Year's Eve. Phelps testified:
Q. [by Mr. Waite] Now, at any time, did you tell
Mr. Maykuth during the period of the first week of
January, the time you were pouring concrete, did you
ever tell Mr. Maykuth that you felt lightheaded or ill
from the effects of the monoxide?
A. Well, we all developed headaches, severe head-
aches, and New Year's Eve at 5 o'clock, when it was
time to quit, I went out and I had been working in an
area by myself, spreading gravel for the rail-loading
dock, and when I came out I told Mr. Maykuth, I said,
"I feel awfully dizzy and lightheaded." He said, "Yes,
your face is quite red," and I sat down for a few min-
utes in the area where he and the other three men were
746
BIGHORN BEVERAI(;
working. And I sat there for a few minutes, and I told
him, I said, "I'm going to go home. I'm not feeling
very well."
Q. Did you hear other employees complain about
the effects of the carbon monoxide?
A. Periodically they) would all remark that they had
headaches.
Q. Did you hear them complain to Mr. Mavkuth?
A. I can't say that I ever did, sir.
In addition to the foregoing, Phelps recalled that he left
work early on January 5, 1977, about 3 p.m. after telling
Maykuth that he was feeling bad. had a headache and
wanted to go home.
The findings of fact set forth above in this section have
been based on the testimony of Mortensen, Maykuth,
Ager, Helmbrecht, C. A. Christofferson. Paul Christoffer-
son, Barry', and Phelps, as well as documentary evidence.
J. The Accident Involving ,Ager on January 5. 1977
On January 5, 1977, Ager had an accident at the Re-
spondent's facility. A 2- by 6-inch board snapped and hit
Ager on the head. Ager was not wearing a hardhat at the
time, and it appeared to Mortensen that the blow dazed
Ager. Christofferson asked Mortensen twice to take Aver's
place, but Mortensen did not say anything or do anything.
He was thinking that Helmbrecht was closer than he was.
and he was also thinking about the injury to Ager, but he
did not communicate those feelings. Mortensen then per-
formed the work requested by Christofferson.
Helmbrecht said that Christofferson asked Mortensen
three times to help him before Mortensen did so.
Barry) recalled the accident where Ager was hit on the
head when a board broke. but he mistakenly placed the
date of that event as occurring on January 3, rather than
January 5, 1977. He said that Christofferson asked Mor-
tensen three times to help before Mortensen did so.
C. A. Christofferson testified on direct examination bs
the attorney for the Respondent:
Q. [by Mr. Waitel All right. Tell me what prog-
ressed that morning? I-ell me what happened?
A. Well, I had to give them explicit instructions. It
seemed that they were a little hesitant to really (lo very
much, and I told Tom to take the 2 x 6 and prt the
form up while we pulled on it on the one end. It was
sandwiched in between, and dirt had piled in back
there, and it was a difficult situation. He broke the 2 x
6 doing it and hit himself on the head with it. so I told
Tom, "Well, you just stand over there until your head
clears," and I told Barry to come and help me. Tom
was working on this side, and I told Barry to help me
on the other side, and Barry wouldn't. He just stood
there.
Q. Then what happened?
A. So I told him, "Barry, I told you to come up here
and help me with this," and he just stood there, and I
told him three times, and finally he came up and start-
ed to help me.
Q. How many times did you have to ask him'?
A. I asked him three times.
Q. Did you raise your voice on each of those three
times''?
A. No, I didn't raise my voice, but I was very per-
sistent. I just said, "Barry. I want you to come up here
and help me do this." It's just the way I said it. and
I'm not used to- When I say 'jump" I want them to
ask me "five feet in the air," "which way," and it just
didn't work out.
Q. You asked him the first time, and did he give
you any response'?
A. No. he didn't. I he third time he did.
Christofferson said that about 6 p.m. on January 5, 1977.
NlMaykutli telephoned him and asked him what had hap-
pened between Mortensen anid him. Maykuth said that
Wayiie ilelmbrecht had told him about it. Christofferson
told MaNkuth what had happened, and NMaykuth replied:
"Well. l've had it. I'm going to let Barry go." Christoffer-
son said. "Well, that would certainly be my consensus of
opinion. too, but it isn't m,, affair."
lelnmbrecht was the one who informed Maykuth of the
incident that day. NIMaskuth testified on direct examina-
tion:
Q [hb Mr. WVaite] Where did that conversation take
place, or how did it take place?
A. Well. it took place because right about quitting
time. 5 o'clock. Wane Helmbrecht came to me and
told me about an altercation between Mr. Christoffer-
son and Mr. Mortensen that day.
Q. Okay. So, how did the conversation, you
know Where or how did the conversation with Mr.
('hristofferson take place?
A.. When I got home I called him at home.
Q. Tell us about the conversation?
A. Well, I told him that Wayne had told me there
had been a problem on stripping some forms. I told
him I wanted to hear his side of it, and he told me
ahbout the fact that Tom Fdie had gotten hurt, gotten
himself hit when a board broke. and he had asked
Barry for some help. and Barry had refused to help
him. And he told me he had to ask him three times.
and I said. "Chris. this is absolutely as far as I can go
with that man. I can't carrt him any longer. I'm going
to terminate him tomorrow."
Q. What was Mr. ('hristofferson's response?
A. He said. "I don't see where you have any other
choice."
The preceding findings of fact have been taken from the
testimons given by Mortensen. tlelmbrecht, Barry, C. A
('hristofferson, and Maskuth. As he did with other mat-
ters. Moriensen acknowredged that he did not perform the
work requested by ( hristofferson immediately. Hovveser.
his expla;nation for his momentary hesitancy was consinc-
ing under the circumstances of the accident just ha ing
happened to Ager. and I credit Mortensen's explanation.
K. i'The Fic.-i ,oi Janluarv 6. 19 T
Mortensen reported for work at X o'clock on the morn-
Ing of Jilnuails h. 1977. lie noticed that the main doom to
747
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the warehouse was open instead of being closed as it had
been in the past except when trucks were coming in. He
also overheard Maykuth discussing venting any carbon
monoxide that was inside the building out of the building.
Mortensen spoke with Ager in the warehouse area about
8:15 that morning. They talked about the inspector coming
out to the facility and the carbon monoxide situation in the
building.
Mortensen also had a conversation with Phelps that
morning in which Mortensen asked Phelps if he had told
Maykuth about the inspector coming out, and Phelps told
him no.
Mortensen resumed the task of leveling the gravel, and
then he went over to the Helena airport terminal to use the
restroom there.
About 15 minutes later, Mortensen walked back to the
Respondent's building. He observed that the cement truck
was running in the building and, even though the door was
open, it appeared to him that carbon monoxide was accu-
mulating in the building. Therefore, for the next 15 to 30
minutes, Mortensen stood outside the building. He said
that concrete was not being poured at that time, and that
others were still putting down steel in preparation for the
pour of concrete.
While Mortensen was waiting outside the building, he
noticed that a man got out of a small truck in front of the
building, put on a blue hardhat, got something out of his
truck, and then walked into the building. Mortensen did
not know who the person was at that time, but he assumed
that he was the inspector whom he had been expecting to
see that day. Later, in a telephone conversation with \Wake
from the Department of Health and Environmental Sci-
ences, he was told that the man was Bill Hooper.
Mortensen walked into the Respondent's building about
50 feet behind the inspector. Mortensen testified on direct
examination by counsel for the General Counsel:
Q. [by Mr. Omata] Now, after you walked into the
building behind this fellow. Would you describe what
took place?
A. Yes. I went over and became ready to pour ce-
ment with the rest of the people, and everybody was
kind of milling around waiting for the pour and to
wheel the cement into the building into the back part
of the cooler. And at that time I noticed-and, of
course, I was watching the inspector and he walked
over to a group of people, I'm not sure who they were.
There were quite a few people with the carpenters and
our crew there, and he was asking them some ques-
tions. That's all I observed, and the)' directed him to
Mr. Maykuth, and he went over, and I could see him
shake hands with Jerry and just overheard some
words, but I really couldn't make out the words.
Q. What happened next?
A. Well, they probably talked for a minute to two
minutes. And after they were done talking, Mr. May-
kuth walked over to me and said, "I want to talk to
you.
Q. Would you relate what was said?
A. Well, we walked to the head of the cement truck,
and I was kind of screening out the rest of the people
from us, and at that time he said-seemed to be pre-
cise-He said, "I don't think we'll need you around
here any more." That was his first statement, and I
made a statement, "Jerry, if you get the carbon mon-
oxide out of this building, I'll work for you," and then
he said, "I can't trust you to drive one of my beer
trucks. I don't think we'll need you any more," or
something to that effect. And after that I said, "fine"
and walked out of the building.
Q. Where did you go after you walked out of the
building?
A. I walked directly to my car and left the job site.
One other thing he said, "You can get your pay check
tomorrow." He also said that before I left.
Ager gave the following description of other events dur-
ing the morning of January 6, 1977, on direct examination
by counsel for the General Counsel:
Q. [By Mr. Omata] Would you describe the type of
work that was performed that morning starting at 8:00
a.m.?
A. We were involved in leveling a pile of gravel in
what is now the cooler area, getting it ready to lay the
steel for the concrete.
Q. That morning, after you had arrived at work and
work had commenced, did you have any conversa-
tions with any of the other employees regarding the
carbon-monoxide problem?
A. Well, Charlie Phelps came in a little after-He
came in approximately a quarter after 8:00, and I said,
"Boy, it must be nice to come in late to work." I said,
"I wish we could all do that."
Q. Excuse me. Was anyone else there?
A. Barry Mortensen, I and some of the carpenters
were working to level this pile of gravel.
Q. Please go on with the conversation.
A. He said-He says, "No. I've been here since be-
fore 7:00." He says, "I've been up at Helena Sand and
Gravel trying to get some piping to get the carbon
monoxide out of here before the inspector comes."
Q. Did you say anything in reply?
A. I walked over-No, I didn't.
Q. Did you talk to any other employees that morn-
ing about the carbon-monoxide problem?
A. After Charlie Phelps told me what he had been
doing, I walked over to Barry Mortensen and said, "I
think Charlie told Jerry that you called the inspector."
Q. And what was Mr. Mortensen's response to
that?
A. He couldn't believe it, and he walked over to
Charlie and said, "Is that right. Did you tell Jerry?"
Q. Were you there?
A. Yes, I was approximately six feet away, and
Charlie looked down at the ground and said, "No,
man, I didn't do that," and he walked away.
Phelps testified that he had a conversation with May-
kuth in which Maykuth informed him that Maykuth had
fired Mortensen. In addition, Phelps testified on direct ex-
amination by counsel for the General Counsel:
And he said that he didn't want a man like that-
748
BIGHORN BEVERAGE
with an attitude like he had, he didn't want him work-
ing for him, and he thought it was best to get rid of
him before he got out on the trucks meeting the pub-
lic. And he said that Mr. Christofferson also tried to
get him to fire Tom Edie.
Maykuth's version is that he did not terminate Morten-
sen at 8 a.m. that morning, as he had planned to do, be-
cause he was preoccupied with construction problems and
getting the 25 feet of flexible steel cable installed on the
trucks to carry out the fumes. He said that he did see Mor-
tensen that morning, but later Mortensen had left: and he
searched the building and the parking lot for Mortensen.
He said that he finally saw him again shortly after 10 a.m.
According to Maykuth, he called Mortensen outside and
told him that he did not have any more work for him
around there. He said that Mortensen asked him what the
reason was, and Maykuth replied. "Your performance
around here has just been totally unsatisfactory . . . I'm
not happy with the way you've been working." Mavkuith
said that he related a couple of instances where Mortensen
had refused to cooperate with Christofferson and was in-
subordinate. Mortensen replied that he did not work for
Christofferson, and Maykuth responded that Christoffler-
son was his general superintendent and that he had told
Mortensen to take orders from him. Maykuth stated. "As
far as I'm concerned, you work for whoever I say as long is
I'm signing your check."
Maykuth said that Mortensen asked when he could get
his paycheck and Maykuth responded that he could have it
later in the day. He reminded Mortensen to bring in his
uniform.
Either at that time or the next day. Maykuth said that
Mortensen said something to him about "cleaning up the
environment." Maykuth said that he told Mortensen that
he had been working on it for a couple of days.
At the hearing, Maykuth specifically denied that he had
any knowledge at that time whether Mlortensen supported
the Union, or was active on behalf of the Union. He like-
wise denied having an)y' knowledge that NMortensen had
made any complaints regarding the fumes in the building.
Maykuth gave the following explanaiion on direct exam-
ination as to why he did not discharge Mortensen for ah-
senteeism and talking when Ma kuth first observed it:
Q. {By Mr. Waite] Now. my question to you is wh:
sou didn't fire him when the absenteeism and the talk-
ing---when you first observed it?
A. Well, I observed this, as I said. before ('hrist-
mas-right after he came on the job. I only had two
driver-salesmen, or route account representatives ls I
prefer to call them. I had already put 10 da's of trai-
ing into them. It cost me a lot of money. I had bought
their uniforms. That cost me a lot of money. I was
trying to promote something with the brewer? to haul
beer out of Bozeman, and I figured. okax, 1 xc only
got to put up with these guns on this construction .ob
maybe for a week or so. If the brewery will let us go.
then they can get to driing heel, delivering beer, and
we'll see how things go. So I spoke to him on the 22nd
of December, and I think it sas the following da', the
23rd, the brewery came dorlwn and said there is no ,was
we're going to let you go ahead and deliver beer. We
see too many problems, and they were right. I can
look now, back now, and see that would have been a
mistake. Guys couldn't have worked all day and back-
hauled all the way to Bozeman and driven trucks in
the middle of the night and driven back, so the follow-
ing week after the incident when I couldn't find him
on the roof and Wayne had told me what had hap-
pened, I just felt I couldn't carry him any longer, be-
cause I knew it was going to be close to the first of
February before we'd get in business, and I didn't
have the funds to pay people who didn't want to pro-
duce something for their efforts. So, I made up my
mind that week that the next time anything happened;
that is, after I talked to Wayne about the incident in
the truck, or the next time something happened like
that that was uncalled for and for which there was no
good explanation, I would have to let him go.
After considering the foregoing and for the reasons pre-
viousls discussed concerning the witnesses, I have based
the findings of fact on the testimony given by Mortensen,
Ager, and Phelps, rather than the version of Maykuth's
which contradicts Mortensen.
I have read Paul Christofferson's testimony in which he
indicates that he formed the belief that Mortensen was the
one who had brought in the safety inspector. However, it
was established on redirect examination by the attorney for
the Respondent that Paul Christofferson's belief was mere
conjecture on his part. Moreover, the evidence does not
show that Paul Christofferson played any role in the deci-
sion to terminate Mortensen, nor that he even expressed
his opinion to anyone prior to the termination of Morten-
sen. In these circumstances, I place no reliance on Paul
Christofferson's testimony on this point.
i. The Events on January 7, 1977
On January 7. 1977, Mortensen returned to get his pay-
check. At that time Maykuth said to Mortensen: "You've
been talking a lot around the job." Mortensen replied that
he and the men (lid not like the way that Ma)kuth had
been conducting the job. Mortensen stated at the hearing
that he did not make that statement in anger.
Mavkuth then called Christofferson into the conversa-
tion. At irsl. Mortensen indicated that Mavkuth had asked
('hristofferson whether he thought Mortensen was a good
employee. and that Christofferson's reply was positive,
'lThat I had done a good job." At that point, Mortensen
Ais, once agalin confronted w ith hits earlier affidavit on
cross-examination hb the attorne) for the Respondent, and
the following took place:
Q,. [B Mr. Waite] My question to .ou is, in ,our
statement to the Board, Respondent's Exhibit 2, did
o)u s,i i Mlvkuthl then turned to Christofferson and
aiskd.(, :Chris, do )ou feel that Barry xwas doing a poor
job aroiund here'?"' The onlx thing (Christofferson said
"was, nio.
A. That's phrased another way. you know, the way
that we discussed.
Q. Okas. So. what you're saying is that what I have
749
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
read you is true and correct'
A. Yes.
Q. And that was what was said?
A. Yes.
Q. Okay. And at the same time, if I understand
your testimony, you're saying that Mr.
Christofferson's response was positive, that you
were had been a good enlployee, "yes" or "no."
A. Well, it was phrased another way, you know.
Jerry asked whether I had done a poor job. Chris said,
"no," which meant to me I must have done an all-right
job, but he did not criticize my work.
Q. What you're saving is that Mr. Christofferson
did not say anything negative about your work?
A. Yes.
Maykuth recalled the conversation on January 7, 1977.
differently. According to his version. Mortensen asked him
again why he was discharged, and Maykuth responded that
his job performance was unsatisfactory. Maykuth added
that Christofferson agreed with him. At that point, Mor-
tensen started arguing that he was a good worker, so May-
kuth called ('hristofferson in the office and told him that
Mortensen was triing to tell him that he was a pretty good
worker. Maykuth said that he asked Christofferson. "Chris.
Ido you feel he's been carrying his share of the work around
here?" Christofferson replied, "No, I don't."
Maykuth then testified on direct examination regarding
Mortensen:
He got real up tight, belligerent and loud, and get-
ting argumentative, and he said the only thing I real-
ly remember is He said. "Jerry, you're just doing a
lousy job of running this project," or something to that
effect, and I said, "Barry, I'm too busy to listen to
trivia like this." I just turned around and walked off.
In the opinion of C'. A. ('hristofferson, Mortensen was
antagonistic, disturbed, and a little angry, and he raised his
voice and ridiculed Mavkuth about the way he ran the job
during their conversation when Mortensen picked up his
check. Christofferson said that Maykuth just asked him.
"Do you think that Barry has been carrying his end of the
load so far as work is coliceried," to which Christofferson
repledl, "No."
f:or the reasons previously mentioned, I found Morten
sen to be a credible witness, ami I have based the findings
of fact in this section on Moriensen's credited testimony,
rather than on the Iestilnioni offe'red by Maykuth and
('hiistoffer,:;n.
M. Su[. seq'iue't I'tents
Sonmetline dftec the Res.pondent began distributing heer.
Phelp,; si'as ill the iArchou ;e area with some other employ-
ees of the Respondent, whoin he could not identify. Phclps
recalled that Ma)kuthl made what he described as being "a
general ,!.ticnt ent." Phelps testified on diiect examinatin
by counsc For the Geneliral C'oansel:
lie made a 'eneral istalement. It wasn't directed to
anyone in particular, as I recall, and he said he had no
use for Unli('llns nd he didn't want a shop steward in
his plate of builess telling him what to do
Maykuth denied saying that he did not want a shop
steward around who might tell him how to run his busi-
ness.
Phelps also recalled a conversation with Maykuth and
his mother about 2:30 or 3 p.m. I day sometime prior to
Maykuth's birthday. Phelps was unable to state what time
of year the conversation took place. However, he did state
that it took place in the truck parking portion of the ware-
house area, and he recalled being invited to Maykuth's
house for a birthday dinner.
Although the time period is vague, I find that the conver-
sation took place sometime during the time that Phelps was
employed by the Respondent, in view of the circumstances
of the conversation taking place at the Respondent's prem-
ises during the hour of the day that Phelps would normally
be working.
Phelps gave the following account of this conversation
on direct examination by counsel for the General Counsel:
Q. [By Mr. Omata] Would you relate what was said
during that conversation and by whom?
A. We discussed a number of subjects, and I do
remember that his mother asked me how the operation
was going, how sales were and everything, and I told
her I thought rather well. We were meeting some op-
positions from some Union buyers, and she made the
remark that she hated Unions, and that she had had
experience with them. She had absolutely no use for
them.
Q. Did Mr. Maykuth participate?-Well, I think
you already stated that he did participate in the con-
versation on and off.
A. I remember him making one remark that he
couldn't understand why employees would want to go
Union, because in so many instances they lost mone-
tary gains and benefits more so than they gained by
joining the Unions.
On cross-examination, Phelps stated that within his
knowledge Ms. Maykuth did not have any role in the oper-
ation of the business, and that Maykuth had never indi-
cated that Ms. Maykuth was the owner or had any finan-
cial interest in the business. Phelps further acknowledged
that he had no reason to believe that Ms. Maykuth was
employed by the Respondent in any' capacity.
Maykuth said that his birthday was on February 4, but
he did not recall having any conversation with Phelps
where his mother was present.
Ilelmbrecht also related a conversation with Maykuth in
March 1977 in which Mavkuth stated that he could not
afford to pay the wages and retirement and health benefits
which the Union wanted. This occurred in the context of
either Helmbrecht or employee Beaver suggesting that it
might help if they went union because sales were down,
and 21 accounts in the area were not taking beer deliveries
because they were nonunion drivers.
Maykuth recalled that in March 1977 Helmbrecht and
Beaver did ask him somne questions as to whether Maykuth
thought it would help the business if they went Union.
Hlowever, Maykuth indicated that his reply was that the
distributor in Butte, Montana, had gone union, and that
750
BIGHORN BEVERAGE
the man there had told Maykuth that his sales had not
increased.
After considering the foregoing conflicting versions, and
as discussed previously herein in the section concerning
"The Witnesses," I have decided to accept the versions giv-
en by Phelps and Helmbrecht. Accordingly, I have based
the findings of fact in this section on their testimony.
N. Conclusions
1. The interviews
Based on the credited testimony, I conclude that May-
kuth in November 1976 did interrogate applicants for em-
ployment with the Respondent concerning their union
membership and sympathies. The interrogations took place
in the context of job application interviews, and the Board,
in those circumstances, has found such interrogations to be
"inherently coercive."
In Rochester Cadet Cleaners, Inc., 205 NLRB 773 (1973).
the Board stated:
The Board has held that questions concerning for-
mer union membership and union preference, in the
context of a job application interview, are inherently
coercive, without accompanying threats, and are
therefore violative of Section 8(a)(1) of the Act, even
when the interviewee is subsequently hired. Bendir-
Westinghouse Automative Air Brake Co., 161 NLRB
789, 791-792. As the facts here are substantively the
same as in Bendix with respect to the inherently coer-
cive nature of Lochnicht's questions, we find Respon-
dent has thereby violated Section 8(a)( ) of the Act.
Furthermore, the Board held in P. B. and S. Chemical
Company, 224 NLRB 1, 2 (1976): "[W]e first note that the
basic premise in situations involving the questioning of em-
ployees by their employer about union activities is that
such questions are inherently coercive by their very na-
ture." See also Crown Zellerhach Corporation, 225 NLRB
91 1, 912, fn. 6 (1976), where the Board reiterated its adher-
ence to that legal principle.
With the foregoing Board precedents in mind, I con-
clude that the Respondent's interrogation of applicants for
employment concerning their union membership and sym-
pathies violated Section 8(a)(l) of the Act.
2. The General Counsel's motion to amend the complaint
We turn now to the issue of whether the General Coun-
sel should be permitted to amend the complaint by adding
still another unfair labor practice allegation after the hear-
ing has been concluded. That allegation which the General
Counsel seeks to have added to the complaint involves the
Respondent's use in November of 1976 of application
forms in which a question is asked regarding the
applicant's union membership. Counsel for the General
Counsel cites a Board decision which has many similarities
to the instant situation: Rochester Cadet Cleaners, Inc.. su-
pra. In that case, the Board stated 1205 NLRB at 773]:
I. The Administrative Law Judge made a finding,
which is unchallenged by Respondent, that at the time
Kuhlt was hired she filled out a job application form
which requested, among other things, information re-
garding whether her former employers were unionized
and whether she was a union member. The Judge
failed to find this a violation of the Act, inasmuch as
the complaint did not specifically allege that the ques-
tions on the form constituted an independent violation
of Section 8(a)(1). We disagree.
The complaint, in one of its allegations, lists various
alleged incidents of unlawful interrogation. At the
hearing this allegation was amended to change the
date of the first incident alleged therein from July, of
1972 to June of 1972, the date Kuhlt was interviewed
for employment. Thus, the complaint, as amended, re-
fers to the occasion when Kuhlt filled out the job ap-
plication form containing the unlawful questions con-
cerning union affiliation and preference and is
sufficient to justify a finding that such questions con-
stitute a violation of Section 8(a)(1) of the Act, and we
hereby make such finding. Rivers Mfg. Corp., 154
NLRB 662, at fn. 2. Moreover, even if the complaint
failed to refer at all to the application form questions,
it would not prevent a finding that Respondent has
violated the Act in this regard, inasmuch as the record
shows that the Administrative Law Judge's factual
findings concerning the questions were related to the
general subject matter of the complaint and charge,
the facts were fully litigated, and the Respondent did
not object to testimony concerning them. Phillips In-
dusiries, Incorporated, 172 NLRB 2119, at fn. 2. Ac-
cordingly, we shall amend his recommended Order
and notice.
As pointed out previously in this Decision, the Respon-
dent does oppose the granting of the General Counsel's
motion to amend the complaint. The attorney for the Re-
spondent urges in his brief that that motion be denied for
several reasons and, in the alternative, if the motion is
deemed to have merit, "the hearing should be reopened so
that evidence can he taken concerning this point and the
issue can be openly litigated."
In weighing the merits of the two opposing positions. I
note that there was substantial testimony elicited by the
Respondent concerning the application forms, and that
two such forms were introduced in evidence by the Re-
spondent as Respondent's Exhibits I and 6.
In addition. I have set forth in the findings of fact that
testimony by Maykuth regarding his use of the forms, as
well as testimony by the employees concerning their appli-
cations and their interviews. (see Sec. D).
After reviewing the record on this subject, it appears to
be clear what questions the forms contain, since the docu-
ments themselves are in evidence as the Respondent's ex-
hibits, and it further appears clear that the application
forms were used by Ma-kuth during his interviews of ap-
plicants for employment.
In Hrb.st Supply Co., Inc.. 222 NLRB 448. In. 1 (1976),
the Board stated that the Administrative Law Judge in that
case "erred by not permitting the General Counsel to a-
mend the complaint . . ." In that case, as in this one, an-
751
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other counrsel for the General Counsel moved to amend the
complaint in his posttrial brief. See 222 NLRB at 449, fn. 2.
In Alexander Dawson, Inc. d/b/a Alexander's Restaurant
and Lounge, 228 NLRB 165 (1977), the Board stated:
. . . the Administrative Law Judge considered Re-
spondent's surveillance only as background in de-
termining Respondent's overall motivation. In so
doing, the Administrative Law Judge noted the ab-
sence of a specific allegation in the complaint that the
surveillance violated Section 8(a)(1) of the Act. He
also noted the failure of the General Counsel to a-
mend the complaint to allege such a violation.
Nevertheless, the Board expressed the opinion that "this
incident is sufficiently related to the subject matter of the
complaint to justify a specific finding of a violation of Sec-
tion 8(a)(l) of the Act." The Board was of the view that the
respondent's surveillance in that situation was "part and
parcel of its persistent antiunion campaign" and that the
matter was "fully litigated," noting that the respondent in
that case "had ample opportunity to offer, and in fact did
offer, evidence on this point." Alexander Dawson, supra at
165-166.
In Harriy Edison, Dividar Marcovici and Bertram Fried, u
Co-Partnership doing business as Seaview Manor Home for
Adults, 222 NLRB 596 (1976), the Board said: "We also
find in disagreement with the Administrative Law Judge
that the failure to question Marcovici or cross-examine
Quijano does not warrant the conclusion that the matter
was not fully litigated as the Company did not avail itself
of the opportunity to do so."
In H. C. Thontson, Inc.. 230 NLRB 808, 811 (1977), the
Board stated:
And, while this statement was not alleged as a sepa-
rate violation of Section 8(a)(1), it was fully litigated at
the hearing. We have long held "that when an issue
relating to the subject matter of a complaint is fully
litigated at a hearing . . . the Board [is] expected to
pass upon it even though it is not specifically alleged
to be an unfair labor practice in the complaint."
IThe Board cited its earlier decision in Monroe Feed
Store, 112 NLIRB 1336 (1955).
See also General Dynamics Corporation, 227 NLRB 334.
fn. 2 (1976). where the Board held that the interrogation
therein was not alleged in the complaint, but the matter
was "fully litigated at the hearing."
After considering the Board precedents cited above, and
considering the fact that substantial evidence concerning
the application forms and their admitted use by Maykuth
emanated from the Respondent, in addition to the testi-
mony given by other witnesses, I conclude that the General
Counsel is entitled to have his motion to amend the com-
plaint granted in these circumstances, and I hereby grant
his motion as requested in his posttrial brief.
With all of the foregoing in mind, and additionally not-
ing that the complaint did allege interrogation by Mavkuth
in November 1976 of applicants for employment concern-
ing their union membership and sympathies, I find that the
utilization of the application for employment forms in
those interviews has been fully litigated in this proceeding.
In these circumstances, the Respondent's alternative mo-
tion to re-open the hearing is hereby denied.
Accordingly, I conclude that the Respondent also vio-
lated Section 8(a)(1) of the Act when the Respondent uti-
lized application for employment forms in November 1976,
in which the applicant was requested to disclose whether or
not he was a member of a union, if he was a union mem-
ber, and the local number and location of his union. Roch-
ester Cadet Cleaners,. Inc., supra.
3. The termination of Mortensen
We look now to a consideration of the issues concerning
the Respondent's termination of Mortensen.
First of all, was Mortensen engaged in a protected con-
certed activity under the Act when he alone made a com-
plaint to the Department of Health and Environmental
Sciences? While the carbon monoxide fumes had affected
other employees, and while there is some evidence that
some employees complained about the fumes, the evidence
does not establish that the employees acted concertedly in
seeking a solution to the problem or, for example, selected
someone to act as a spokesperson on their behalf.
Instead, the evidence seems clear to me that Mortensen
acted alone in making his complaint to the state agency.
After making his complaint, he did contact Ager and
Phelps about his having done so, but by that time, his hav-
ing made a complaint to the state agency was afait accom-
pli. He did not seek their ratification or approval of his
action which he had already taken. I conclude that Mor-
tensen acted alone.
Nevertheless, the nature of Mortensen's complaint to the
Department of Health and Environmental Sciences was
not merely a matter of his own personal concern. Instead,
it involved a safety problem of common concern to all
persons who were then working at the Respondent's facil-
itv.
The Board held in Alleluia Cushion Co., Inc., 221 NLRB
999. 1000(1975):
We find merit in the Acting General Counsel's ex-
ceptions. While it is undisputed that Henley acted
alone in protesting Respondent's lack of safety pre-
cautions, the absence of any outward manifestation of
support for his efforts is not, in our judgment, suffi-
cient to establish that Respondent's employees did not
share Henley's interest in safety or that they) did not
support his complaints regarding the safety violations.
Safe working conditions are matters of great and con-
tinuing concern for all within the work force. Indeed,
occupational safety is one of the most important con-
ditions of employment. Recent years have witnessed
the recognition of this vital interest by Congress
through enactment of the Occupational Safety and
Health Act, and by state and local governments
through the passage of similar legislation. The Na-
tional labor Relations Act cannot be administered in
a vacuum. The Board must recognize the purposes
and policies of other employment legislation, and con-
strue the Act in a manner supportive of the overall
statutory scheme.
752
753BIGHORN BEVERAGE
The Board has had occasion to reiterate its adherence to
the principle established in its Alleluia Cushion decision in
a later case involving an employee's inquiry at a bank as to
whether his employer had sufficient funds on deposit to
meet its upcoming payroll. The Board held in Air Surrei
Corporation, 229 NLRB 1064 (1977):
In Alleluia Cushion the Board held that an employee
was engaged in protected concerted activity when, act-
ing alone, he filed a complaint with the California
OSHA office protesting safety conditions at the re-
spondent's plant therein .... In our judgment, that
decision rests not only on the statutorily expressed
concern of the Federal and state governments with
respect to safety conditions and a corresponding ac-
commodation of the principles embodied within that
legislation with the principles of our own Act, but also
on the premise that an indisidual's actions may be
considered to be concerted in nature if they relate to
conditions of employment that are matters of mutual
concern to all the affected employees. Indeed, we are
hard pressed to think of a matter of more vital con-
cern to employees than that involved herein receiv-
ing payment for one's labor. Certainly it is on a par
with the concern for safe working conditions.
See also the Board's [)eeciion in The Tappan Company.
228 NLRB 1389, 1391 (1977). where the Board observed:
In addition to his union activities, it is clear from the
record that Copley engaged in protected concerted ac-
tivity when he filed a formal complaint against the
Respondent with the Occupational Safety and Health
Administration, hereafter called OSHA. on April 6.
1976. The Respondent's representatives were apprised
of the contents of this comrplaint when an OSHA in-
spection team visited and insc( ted the Respondent's
plant on April 7.
In addition, see the Board's Decision in Du-Tri Diplavs.
Inc., 231 NLRB 1261 (1977). regarding an employee's com-
plaint about lacquer fumes to the National Institute of Oc-
cupational Safety and Health, an agency of the Depart-
ment of Health, Education and Welfare.
After considering the foregoing Board precedents, I con-
clude that the principle established by the Board in its deci-
sion in Alleluia Cushion is applicable here, and that Mor-
tensen was engaged in a protected concerted activity under
the Act in making his complaint to a state agency regard-
ing safety conditions at the Respondent's facility.
I also conclude that Mortensen was also engaged in a
protected concerted activity under the Act when he initiat-
ed and participated in union organizational activities
among the employees of the Respondent.
Having reached those conclusions, then the next ques-
tion for me to consider is whether Mortensen's participa-
tion in either one, or both. of those protected concerted
activities was a factor in causing the Respondent to termi-
nate him.
Administrative Law Judge James T. Rasbury. whose
findings were adopted by the Board in Karl's Farm Dairy,
Inc., 223 NLRB 211 (1976), observed at 215:
The issue here, as in everN 8(a)(3) termination case.
is a determination of the true purpose or real motive
for the discharge. If McCoy was, in fact, discharged
because of his union activities, it makes no difference
that there may also have been a legitimate reason for
firing him. Conversely, if McCoy's discharge was not
discriminatorily motivated, it is immaterial whether
the discharge was arbitrary. unfair, or unreasonable.
An employer may hire or fire at will for any reason
whatsoever, or for no reason, so long as the motivation
is not violative of the Act.
In the instant case, Mortensen readily acknowledged
that he was absent at times from the Respondent's facility
in order to use the restroom facilities at the nearby Helena
airport, and because of the carbon monoxide fumes in the
building. He also acknowledged reporting for work I day
at I p.m.. but he offered the explanation at the time to
Maykuth, and again at the hearing, that he had been sick
that one morning. It seemed that Ager's taking an extended
lunch hour that day was a mere coincidence, rather than
some concerted action on their part. Mortensen further ac-
knowledged that he and Ager became friends after their
emplos ment by the Respondent, and he did not deny the
assertions by other witnesses that he and Ager talked at
work. He further explained at the hearing why it had taken
so long to unload the scrap material on the truck that day.
Thus, it seems clear that Mortensen's performance at
work did not always measure up to the standards which
Mlaxkuth would have liked for his employees. In fact, May-
kuth discussed with others, including the Christoffersons
and Field Examiner Kabanuck. his intention to terminate
Mortensen and also Ager in his comments to the Chris-
toffersons.
Maykuth. however, took no action until after Mortensen
had complained to the Department of Health and Environ-
mental Sciences and an inspector from that state agency
had visited Respondent's premises, and until after union
organizational activity had begun among his employees
and the Union had filed a representation petition for an
election.
After those events had taken place, Mavkuth took ac-
tion. The Board has held in Charles Edwin Laffev, d b a
Consolidated Service.s, 223 NLRB 845. 846 (1976): "It is
well established that a discharge motivated in part by an
employee's exercise of Section 7 rights is a violation of the
Act even though another valid cause may also be present."
Considering the facts that: (1) Maykuth did not termi-
nate Mortensen until after he had engaged in protected
concerted activities notwithstanding Maykuth's earlier ex-
pressed intentions of doing so; (2) that there were a small
number of employees of the Respondent at the point in
time -- only four in the unit: (3) that Mortensen initiated
the union organizing activits and solicited the union card
signing: (4) that three out of four employees signed union
cards with the last card being signed on January 3, 1977:
(5) that the Union filed its first representation petition on
December 29, 1976, which was received by Maykuth on
January 3, 1977: (6) that Mortensen was the one who made
the complaint to the Department of Health and Environ-
mental Sciences about safety conditions at the Respon-
dent's facility during the evening of January 5. 1977.
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(7) that an inspector visited the premises during the morn-
ing of January 6, 1977, and Mortensen was terminated im-
mediately thereafter; (8) the earlier violations of Section
8(a)(1) of the Act in November 1976 involving the interro-
gation of employees about their union membership and
sympathies during their employment interviews and
through use of the application forms: (9) the subsequent
statements made by Maykuth himself, which are set forth
in section M of this Decision, which reveal union animus.
and finally; (10) Mavkuth's statement to Mortensen at the
time that he picked up his paycheck on January 7, 1977,
"You've been talking a lot around the job," I draw the
inference that the Respondent had knowledge of
Mortensen's protected concerted activities, and that the
Respondent was motivated, in part, by these activities in
terminating him. Accordingly, I find that the reasons as-
serted for the discharge of Mortensen are pretextual in
these circumstances.
In view of the foregoing, I conclude that the Respondent
violated Section 8(a)(l) of the Act in discharging Morten-
sen, in part, because of his complaint to an agency of the
State of Montana regarding safety conditions at the Re-
spondent's facility. I further conclude that the Respondent
also violated Section 8(a)(1) and (3) of the Act in discharg-
ing Mortensen, in part, because he had engaged in activi-
ties on behalf of the Union.
4. The bargaining order remedy
We now examine counsel for the General Counsel's re-
quest for a bargaining order as one of the remedies for the
Respondent's 8(a)(1) and (3) unfair labor practices. The
complaint does not allege a violation of Section 8(a)(5) of
the Act.
First, I conclude that an appropriate unit for the pur-
poses of collective bargaining among the employees of the
Respondent is: All warehousemen and driver-salesmen
employed by the Respondent at its Helena, Montana, loca-
tion, but excluding all other employees, guards, and super-
visors as defined in the Act. Such a unit description at least
until January 6, 1977, would have included four employees
of the Respondent, and excluded only one employee -the
office manager who did office work as distinguished from
warehousing and driver-salesmen work.
The question remains, however, whether an appropriate
unit was in existence in early January 1977 because of the
unusual circumstances which delayed the construction of
Respondent's new building and delayed the Respondent's
selling beer until January 24 or 26, 1977. I conclude that
such an appropriate unit did exist because: (I) the employ-
ees were actually hired in their job classifications as driver-
salesmen or warehousemen after a review of their qualifi-
cations for those jobs; (2) they were not hired as temporary
laborers or construction workers just to complete the con-
struction of the Respondent's facility; (3) they received
training in their job classifications of warehousemen and
driver-salesmen; (4) they performed some work prelimi-
nary to selling beer such as calling on accounts; and (5) the
Respondent retained all of those employees on its payroll
during the unforeseen delay in the construction of its
building.
I have given consideration to the arguments and issues
raised in the attorney for the Respondent's brief in which it
is urged that an appropriate unit did not exist at the time
that the Union enjoyed majority status. However, for the
reasons stated above, I conclude that an appropriate unit
was in existence at that time.
Since Mortensen and Ager signed union cards authoriz-
ing the Union to represent them and applying for union
membership on December 23, 1976, and since Phelps
signed such a card on January 3, 1977, I conclude that the
Union enjoyed majority status in the unit as of January 3,
1977, since it had designations from three out of four em-
ployees. (For details, see the section of this Decision enti-
tled: "The Union Activities and the Representation Peti-
tions.") There is no evidence that the composition of the
unit changed until January 6, 1977, when Mortensen was
terminated.
Accordingly, in view of the foregoing, I conclude that
the Union represented a majority of the Respondent's em-
ployees in an appropriate unit commencing on or about
January 3, 1977, and continuing at least to January 6. 1977.
Compare the Board's holding in The Contract Knitter, Inc.,
220 NLRB 558 (1975), where the Board held: "Our basis
for not issuing a bargaining order is more fundamental.
The evidence is insufficient, in ol:i opinion, to establish
that the Union ever represented a majority of the employ-
ees in the unit." See also Sunset Coffee and Macadamia NVut
Co-Op of Kona, 225 NL.RB 1021 (1976), and Turner Heat
Treating Corp., 226 NLRB 716 (1976).
Having found that the Union represented a majority of
the Respondent's employees in an appropriate unit, the
next question is whether the unfair labor practices commit-
ted by the Respondent are so substantial and serious as to
warrant the imposition of a bargaining order under the
principles of N.L.R.B. . Gissel Packing Co., Inc.. 395 U.S.
575 (1969). The small sir e of the bargaining unit is a factor
which cannot be ignored. Here the discharge of just one
employee-Mortensen resulted in the terminiation of 25
percent of the bargaining unit, and the elimination of the
Union's majority status, but for the fact that Mortensen's
termination was unlawful. In addition, the earlier unfair
labor practices in violation of Section 8(a)(l) affected 100
percent of the employees in the bargaining unit since all
four employees were questioned in November 1976 regard-
ing their union membership and sympathies. The use of the
application forms containing the questions regarding union
membership affected at least three out of the four employ-
ees also, since Ager apparently filled out a somewhat dif-
ferent form.
Considering the nature and the extent of the Respon-
dent's unfair labor practices, I conclude that a bargaining
order, as a remedy for the 8(a)(1) and (3) violations, is
warranted in these circumstances, and that the date of such
an order should be January 6, 1977, when Mortensen was
terminated, since that was the date "Respondent embarked
on a course of unlawful conduct which dissipated the
Union's majority status." Hasty) Print, Inc., d/'hb'a Walker
Color Graphics, 227 NLRB 455, fn. 1 (1976).
In this connection, see also Trading Port, Inc., 219
NLRB 298 (1975); Turner Heat Treating Corp., 226 NLRB
754
BIGHORN BEVERAGE
716, fn. 3 (1976); Freehold AMC-Jeep Corporation, 230
NLRB 903 (1977).
While I recognize the fact that there are no allegations
that the Respondent committed unfair labor practices sub-
sequent to January 6, 1977, it has been noted that the effect
of Mortensen's termination was to dissipate the Union's
majority status at that point in time.
Upon the basis of the foregoing findings of fact and
upon the entire record in the proceeding, I make the fol-
lowing:
CONCLUSIONS OF LAW
I. The Respondent is an employer within the meaning
of Section 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 interrogating applicants for employment in No-
vember 1976 concerning their union membership and sym-
pathies, the Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8(a)(1) of the Act.
4. By utilizing application for employment forms in No-
vember 1976 in which the applicant was requested to dis-
close whether or not he was a member of a union, if he was
a union member, and the local number and location of his
union, the Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8(a)(1) of the Act.
5. By discharging Barry M. Mortensen on January 6,
1977, because of his activities in behalf of the Union, and
because he engaged in the protected concerted activity un-
der the Act of making a complaint to an agency of the
State of Montana regarding safety conditions at the Re-
spondent's facility, the Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1) and
(3) of the Act.
6. Commencing on or about January 3. 1977, and con-
tinuing at least to January 6. 1977, the Union represented a
majority' of the Respondent's employees for the purposes
of collective bargaining in the appropriate bargaining unit
described below:
All warehousemen and driver-salesmen employed
by the Respondent at its Helena, Montana, location.
but excluding all other employees, guards and super-
visors as defined in the Act.
7. The unfair labor practices engaged in by the Respon-
dent are so serious and substantial in their character and
effect as to warrant the imposition of an order requiring
the Respondent to recognize and bargain collectively with
the Union as the majority representative of the Respon-
dent's employees in the unit described above, as one of the
remedies for the Respondent's unfair labor practices.
8. The unfair labor practices set forth above affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Since I have found that the Respondent has engaged in
unfair labor practices within the meaning of Section 8(a)(1)
and (3) of the Act, I shall recommend to the Board that the
Respondent be ordered to cease and desist from engaging
in those unfair labor practices.
I shall also recommend to the Board that the Respon-
dent take certain affirmative action in order to effectuate
the policies of the Act.
Such affirmative action will include an offer of reinstate-
ment to Barry M. Mortensen and payment of backpay to
Mortensen for his loss of earnings which resulted from the
Respondent's termination of him. The backpay period will
be from the date of his termination on January 6, 1977, to
the date on which the Respondent offers him reinstate-
ment. His net earnings during such period of time will be
subtracted from the amount of his backpay.
Backpay is to be computed on a quarterly basis in the
manner prescribed by the Board in F. W. Woolworth Com-
panm. 90 NLRB 289 (1950), with interest thereon as initially
established by the Board in Isis Plumbing & Heating Co.,
138 NLRB 716 (1962), and at the appropriate rate of inter-
est as presently determined by the Board in Florida Steel
Corporation, 231 NLRB 651 (1977).
In addition, for the reasons set forth above in this Deci-
sion. I shall recommend to the Board that the Respondent
be ordered to recognize and bargain with the Union as the
majority representative of the Respondent's employees in
the unit described previously.
Finally, in view of the nature of the unfair labor prac-
tices found herein, I shall also recommend to the Board
that the Respondent be required to cease and desist from
infringing in any other manner on the rights of employees
guaranteed by Section 7 of the Act. N.L.R.B. v. Entwistle
Matnufacturing Compatnr, 120 F.2d 532, 536 (C.A. 4, 1941).
Upon the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record in this proceeding. and
pursuant to the provisions of Section 10(c) of the Act, I
hereby issue the following recommended:
ORDER I
The Respondent, Bighorn Beverage, Helena, Montana.
its officers, agents. successors, and assigns shall:
1. ('ease and desist from:
(a) Interrogating applicants for employment with the
Respondent concerning their union membership and sym-
pathies.
(h) Utilizing application for employment forms, in
which the applicant for employment with Respondent is
requested to disclose whether or not he is a member of a
union. if he is a union member, and the local number and
location of his union.
(c) Discharging an employee because of his activities in
behalf of Teamsters Local No. 45, affiliated with Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehouse-
men & Helpers of America, Ind.. or any other labor organi-
zation.
(d) Discharging an employee because of his protected
' In the even th at no exceptlls are filed as provided ho Sec 102 46 If
the Board's Rules and Regulatrins, the findings, conclusions and recom-
mentded Order herein shall. is prosided In Sec 102 48 of the Board's Rules
anld Regulatonls he adopted hb Ihe Board and shall become its findings.
concluslons. and Order, d ial [11d ,hseilons thereto shall he deemed ,aosed
fer ill purposes
755
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
concerted activities under the Act of making a complaint
to an agency of the State of Montana regarding safety con-
ditions at the Respondent's facility.
(e) In any other manner interfering with, restraining, or
coercing its employees in the exercise of rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Offer Barry M. Mortensen immediate and full rein-
statement to his former job or, if that job no longer exists,
to a substantially equivalent position, without prejudice to
his seniority or other rights and privileges.
(b) Make whole Barry M. Mortensen for any loss of
earnings resulting from the discrimination against him in
the manner as more fully described in "The Remedy" sec-
tion of this Decision.
(c) Preserve and, upon request, make available to the
Board or its agents, for examiniation and copying, the pay-
roll records, social security records, timecards, personnel
records, and all other records necessary to analyze the
amount of money due under the terms of this recom-
mended Order.
(d) Recognize and, upon request, bargain collectively
with Teamsters Local No. 45, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America, Ind., as the exclusive collective-bar-
gaining representative since January 6, 1977, of the em-
ployees of the Respondent in the appropriate bargaining
unit described below:
All warehousemen and driver-salesmen employed
by the Respondent at its Helena, Montana, location,
but excluding all other employees, guards and super-
visors as defined in the Act.
(e) Post at its Helena, Montana, facility copies of the
attached notice marked "Appendix." 2 Copies of said no-
tice, on forms provided by the Regional Director for Re-
gion 19, after being duly signed by the Respondent's au-
thorized representative, shall be posted by the Respondent
immediately upon receipt thereof, and be maintained by it
for 60 days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to in-
sure that the notices are not altered, defaced, or covered by
any other material.
(f) Notify the Regional Director, in writing, within 20
days from the date of this Order, what steps the Respon-
dent has taken to comply herewith.
In the event that this Order is enforced h? a Judgment of a ULniled
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 I abor Relations Board."
756