Elliott River Tours, Inc.

National Labor Relations Board - Board Decisions

Dec 13, 1979

246 N.L.R.B. 935 (N.L.R.B. 1979)

I .1111 R FR Ol RS. IN('
American River louring Association d(/b/a Elliott
River Tours, Inc. and Oregon Guides Association.
('ase 36 CA 3304
I)ecember 13. 1979
DFlCISION ANI) ORI)ER
BY CItAIRMAN FANNIN(, AND) MtNIM IRS Pll II )
ANI) TRII SI)AI I
On July 30, 1979, Administrative Law Judge Stan-
ley Gilbert issued the attached Decision in this pro-
ceeding. Thereafter. the General C(ounsel filed excep-
tions and a supporting brief in support of exceptions
and a brief in response to the exceptions of General
Counsel.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional l.abhr Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs'
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith,
We find. contrary to the Administrative Law
Judge, that Respondent did not violate the Act in
subcontracting the commercial river trips for the 1978
and 1979 season. Respondent was presented, on July
I 1, 1978,3 with an imminent strike threat from the
entire unit of Oregon river guides. Respondent was
rightly concerned that persons who had made ar-
rangements to travel long distances to remote areas of
Oregon in order to spend their vacations on the rivers
not be confronted with an abrupt cancellation of their
trips. Respondent took immediate steps to subcon-
tract the trips to other outfitters. Subcontracting ar-
rangements had been completed prior to the with-
drawal of the strike threat. The outfitter who agreed
to undertake the vast majority of Respondent's com-
mercial river trips tor the 1978 season did so only on
the condition that he also receive the 1979 trips. Thus.
under the circumstances, subcontracting the 1978 and
1979 river trips can be considered an economic and
business necessity. We find that Respondent was mo-
tivated by economic considerations rather than union
I Respondent has requested oral argument. This request is herebN denied
as the record, the exceptions. and briefs adequately present the issues and the
positions of the parties
2 Respondent has excepted to certain credibility findings made b the Ad-
mimnstratlse l.aw Judge. II is the HBoard's established pohlicN notl to overrule
an administrative law judge's resolutions with respect to crediblhli unless
the clear preponderance of all of the relevant evidence cons inces us that the
resolutions are incorrect. Standurd Drn Wall Prodwur. Inc, 91 NlRB 544
(1950), enfid 188 F 2d 362 (3d (ir 1951 We have careuilly examined he
record and find no basis lir reversing his findings
'All dates hereti refer to 1978 unles. ot herwslse specihed.
animus and ind no violation in the subcontracting of
the commercial trips.
We agree with the Administrative l.aw Judge, how-
ever, that the white-water school was canceled in or-
der to destroy the bargaining unit and undermine the
Union. and not in response to economic or business
necessity. As of the morning of July 20. when the
Oregon uides Association (OGA) representative.
Mark Minnis. called Respondent's president. Grant
Rogers. and withdrew the strike threat. none of the
students had been informed that the school was can-
celed. Nine of the 18 students had been contacted and
told of the possibility of a cancellation with the in-
struction "not to move" until the! received further
instructions.
Julie Bars reiterated in another July 20 morning
phone call to Respondent's reservations manager,
Sara Duebner, that the guides were willing to work.
This message was relayed to Rogers. His response to
OGA's withdrawal of the strike threat was that it
"didn't matter," that the school would be canceled
anyway. Although Rogers told Duebner on July 19
that he would let her know by noon on Jul 21
whether the school would be canceled, there is no
explanation tfor the apparent accelerated timetable
with a final decision to cancel being communicated to
Duebner on the morning of July 20. If there were
some factor, other than the decision of the Union to
withdraw the strike threat, that prompted the July 20
decision, the record contains no reference to it. If
there were logistical, financial, or other considerations
that made it unfeasible to go ahead with the school
after the guards indicated their willingness to work,
Respondent has not proffered evidence of such. There
is no apparent reason, particularly in view of Respon-
dent's earlier expression of opposition to collective
bargaining, f'or Respondent's cancellation of the
school at this point, other than to insure that the unit
would be decimated and the Union destroyed. Thus,
we find, in agreement with the Administrative Law
Judge, that the cancellation of the American White-
Water School was in violation of the Act.
Respondent then continued its campaign to thwart
the collective bargaining of its employees by termi-
nating the entire unit, accepting "resignations" that
had never been proffered. We find the discharges to
be in violation of the Act and adopt the recommenda-
tion of the Administrative Law Judge that Respon-
dent be ordered to offer immediate and full reinstate-
ment with backpay to the discharged employees.4
The Administrative Law Judge further recom-
mended that Respondent be ordered to bargain in
good faith with the Union with respect to the appro-
4 Inasmuch as e have Iound the subcontracing of the commercal tnrips to
be lawful. we will lease ifr the compliance stage osi these prlceedings the
detern atioin Ot he amount ,f hackp s\, it' .Illa due each indilidual guide
246 NI.RB No. 149
935
I)('ISI()NS ()1 N.\ I()NAI LAIBOR RI.A'I(ONS B()ORID
priate unit of Oregon river guides. upon the Union's
request, and embody in a signed agreement any un-
derstanding reached. We agree. In so doing, however,
we rely on N. L.R. B. v. Gi.vsel Packing (o., Inc., 395
U.S. 575 (1969), wherein the Court held, inter alia.
that a bargaining order is appropriate in circum-
stances, such as those at hand, where the employer,
having been confronted with a demand for recogni-
tion b a union which has been designated as collec-
tive-bargaining representative by a majority of' the
employees in an appropriate unit, rather than recog-
nizing and bargaining with the union, engages in un-
fair labor practices which tend to undermine the
union's majority strength and prevent the holding of
a fair election. Respondent's conduct in canceling the
white-water school and terminating the entire unit in
the face of a demand for recognition from OGA at a
time when the Union represented a majority of em-
ployees in the appropriate unit was of such a nature.
We find, therefore, that Respondent violated Section
8(a)(1), (3), and (5) of the Act in canceling the white-
water school, terminating the employees, and refusing
to bargain with the Union, and shall order Respon-
dent to recognize and bargain with the Oregon
Guides Association in the appropriate unit as of July
20, 1978, the date Respondent commenced its unfair
labor practicesf
ORDER
Pursuant to Section 10(c) of the National l.abor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the Respondent,
American River Touring Association d/b/a Elliott
River Tours, Inc., Oakland, California, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to recognize and bargain in good faith
with Oregon Guides Association as the collective-bar-
gaining representative of the employees in the follow-
ing-described appropriate bargaining unit:
All river guides employed by Elliott River Tours,
Inc., at its Oregon operations, excluding area
manager, warehousemen, drivers, office clerical
employees, professional employees, guards and
supervisors as defined in the Act.
Chairman Fanning and Member Truesdale would find that the bargain-
ing obligation of Respondent began on July 11, 1978. the date the Union
demanded recognition, but acknowledge that existing Board precedent
would establish the date as July 20, 1978. and thus are willing to abide by
that precedent until it is overruled.
The Administrative Law Judge recommended that Respondent be ordered
to cease and desist from violating the Act "in an) other manner." We adopt
this recommendation since Respondent is found herein to have committed
violations which warrant a broad order under the standards of HIicktno, l
Fexods, Inc., 242 NLRB 1357 (1979).
(b) ('anceling the white-water school in Oregon to
avoid bargaining with the said Oregon Guides Asso-
ciation or to discourage membership in the Oregon
Guides Association, or an other labor organization.
(c) I)ischarging or otherwise discriminating
against any river guide in regard to hire or tenure of
employment or any term or condition thereof in order
to discourage membership in said Oregon Guides As-
sociation, or any other labor organization.
(d) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the
Act:
(a) Recognize and bargain in good faith with the
aftoresaid Oregon Guides Association, retroactive to
July 20., 1978, upon its request, as the exclusive repre-
sentative of the employees in the above-described ap-
propriate bargaining unit, and embody in a signed
agreement any understanding reached.
(b) Offer to Gary Berlant, Gail Burton, Zekiel Cor-
nell, Jeffrey Golden, Kathy Jones, Doug Reinthal.
Jim Silva, Steve Tichenor, and Sue Wilburn immedi-
ate and full reinstatement to their former jobs in Ore-
gon or, if these jobs no longer exist, to substantially
equivalent jobs, without prejudice to their seniority or
any other rights or privileges previously enjoyed.
(c) Make the aforesaid individuals whole for any
loss of pay they might have suffered by reason of the
unlawful discrimination against them, plus interest.
(d) Preserve and, upon request, make available to
the Board or its agents. for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(e) Post at its offices in Oakland, California, copies
of the attached notice marked "Appendix." 6 Copies
of said notice, on forms provided by the Regional
Director for Region 19, after being duly signed by an
authorized representative or representatives of Re-
spondent, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material. In addi-
tion, copies of said notice shall be mailed immediately
to each of the above-mentioned individuals.
I In the event that this Order is enforced by a Judgment of a United States
('ourt of Appeals, the words in the notice reading "Posted bh Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
936
lI.,1I01'I RIVLR lRS. INC.
(f) Notitf the Regional Director for Region 19. in
writing. within 20 days from the date of this Order.
what steps Respondent has taken to comply herewith.
11 IS It RltIIIR ()RI)IERID that the complaint be dis-
missed with regard to all other allegations not found
herein.
APPINI)IX
No 1(t: To EPI o) IrtS
P()SII) ItBY ORI)IDR ()1 I tt
NAII()NAI L.AB()R R lII()NS BOARD
An Agenct of the United States (;overilment
Wt \1l.i. NOI refuse to recognize and bargain
in good faith with the Oregon Guides Associ-
ation as the collective-bargaining representative
of the emplosees in the fbllowing-described ap-
propriate bargaining unit:
All river guides employed by Elliot River
Tours, Inc.. at its Oregon operations. exclud-
ing area manager, warehousemen, drivers, of-
fice clerical employees. professional employ-
ees, guards and supervisors as defined in the
Act.
WI: WilL. NT cancel the white-water school in
Oregon to avoid bargaining with the said Oregon
Guides Association or to discourage membership
in the Oregon Guides Association, or any other
labor organization.
Wi wI.I. Not discharge or otherwise discrimi-
nate against any river guide in regard to hire or
tenure of employment or any term or condition
thereof in order to discourage membership in
said Oregon Guides Association. or any other la-
bor organization.
Wl: WILL NO in any other manner interfere
with, restrain, or coerce employees in the exer-
cise of their rights under Section 7 of the Act.
Wti wil.. recognize and bargain in good faith
with the aforesaid Oregon Guides Association.
retroactive to July 20, 1978, upon its request, as
the exclusive representative of the employees in
the above-described appropriate bargaining unit.
and embody in a signed agreement any under-
standing reached.
WE w1l.l. offer to Gary Berlant. Galil Burton.
Zekiel Cornell. Jeffrey Golden, Kathy Jones,
Doug Reinthal., Jim Silva, Steve Tichenor, and
Sue Wilburn immediate and full reinstatement to
their former jobs in Oregon or, if those jobs no
longer exist, to suhstantiall> equivalent jobs.
without prejudice to their seniority or any other
rights and privileges previously enjoed.
Wi: wl. make the aforesaid individuals , hole
for any loss of pa, the, might have suffered by
reason of our unlawu ll liscrimination ag aillSt
them. plus interest.
AMIRI( AN Ri V R 1ot) RIN\( Asso( I \11)N
i)/i/A El ii.l()i R IR l()t Rs. I
DI)(ISION
SIAI}:MINI ( I IIII (' Si
Si ,\.i 1Y CI( RI, Adllinistratie l.a J Ludge: Based on
a charge tiled on JulI 31. 1978. h the Oregon (uides, \sso-
cialion. hereinafter referred to as O()iA. the complaint
herein was issued on September 28. 1978. Based on an
amended charge filed b ()OiA on Octoher I 11. 1978. an
amendment to the complaint as issued on October 16.
1978. The complaint, as amended. w\as further amended
during the course of the hearing. Ihe complaint as
amended. alleges that American River ouring Associ-
atiorn. hereinafter referred to as ARFA. and lliott River
Iours. Inc.. hereinafter referred to as FRI. as joint emplo 3 -
ers or as a single employer violated Section 8(a)(5). 3). and
I ) of the National Labor Relations Act. as amended. It is
further alleged therein that a remedial order is warranted
herein requiring A RTA andl FRI. hereinafter refterred to as
Respondents. to recognize and bargain with ()(iA.
By answer, as amended, to the complaint, as amended.
Respondents dens that thes are joint emploers or a single
emploser. Also, in said anss.er the allegations of untllair a-
bor practices are denied. In addition. as affirmative de-
fenses. it is alleged that ARTA is not an employer of the
emploN ces involved herein and thereftre not a proper part5
Respondent: and that an\ loss of emplo\ ment h said em-
plosees "resulted from their having engaged in strike ac-
tivity and their subsequent lawful replaceiment."`
Pursuant to notice. a hearing was held in Portland. Ore-
gon. on D)ecember 4. 5. and 6. 1978: in San Francisco. (ali-
lIrnia. on December 14. 1978: and again n Portland on
February 1. 1979. Appearances were entered on behalf of
all parties and briels were filed hby said parties.
Based on the entire record in this proceeding and mni
observation of the witnesses as they testified. I make the
following:
FININ,(S () I ( I
1. 1111i B SINISS ()I- RI SPI')NI NIS
According to the credited testimony of Stephen (utright.
who during the time material herein mianaged both AK R IA
and RIT. ARTA. a (non-profit) C;ali'rirnia corporation
with its principal otlice in Oakland. Calitrnia. is a ilder-
ness travel compan5 specializing in soliciting and hooking
wilderness travel trips throughout the world. It subcon-
tracts the actual running of the trips to various riser outfit-
ters, one of which is RIT.
FRI' is a C(alifornia corporation engaged in the running
of river trips in the Staites of Idaho. Oregon. and I tah. Ih
II i ns ted that in t he rnpl.iill \R .I nd R .re retcrred 1o a'. t he
Respondent Oingular).
' hese affirm;n ll.e deten' es re dlul le,edc hereinhecl , pirticllarl . the
adlision iniphlt n the sewond ,I the dclicnes
137
DECISIONS 01 NA IIONAI, lABOR RITA IONS BARI)
its principal oilice also in Oakland. IR I I' urnishes the
guides for said trips and mainrains the equipment.
For the reasons set Kfrth hereinbeloes, it is ound that
ARTA and ERT are a single integrated enterprise. at least
with respect to the issues herein.
It is found from the answer to the amended complaint
and a stipulation that ARIA has a gross annual revnueL in
excess of $5))(.000(). RI an annual gross rc'enue of
S250()()O. and that in excess of $50()(XX) resulted frlomi book-
ings received h A RI',A from sources outside the State 1
('Calitornia.
It is inftrred front the ansser to the amended complaint
that it is admitted that one or hoth corporations are em-
ployers engaged in commerce ithin the meaning of Seec-
tion 2(6) and (71 of the Act and, therefore, it is lound that
the jurisdictional requirements of the Act and the Board are
met.
. Il IAlOR ()R(ANI/.AII¢(N INVOi I, 1)
Respondents. by their answer, deny the allegation that
OGA is a labor organization within the meaning of Section
2(5) of the Act. It is noted. however, that in their brief
Respondents make no mention of' their denial of said alle-
gations.
It appears rom credited testimony that, on or about July
1. 1978. a group of the guides employed bh IRI for its
operations in Oregon met in ERI's Oregon headquarters in
Merlin. Oregon and decided to form an organization
known as Oregon Guides Association: that it vwas agreed
that the purpose of the organization would he "the promo-
tion of' satisfaIctorN working conditions and job security and
job safiety": that the full complement of FRT guides conl-
sisted of' 10 people:' that a constitution was drawn up set-
ting forth said purpose which was sent to the NLRB ofice
in Portland on July 10. and was signed by 8 of the 10 guides
(including Byars) and was assented to verbally by the other
2: and also on July 10 a letter was sent to ARTA and FRT
ocer the tped names of the 10 people demanding among
other things, that AR'I A and F'RT recognize O(iA as the
legitimate bargaining agent for all member guides. Based
on the above findings of fact, it is concluded that ()(iA is a
labor organization within the meaning of Section 2(5) of the
Act. N. . R. B. . aho ( rhon ( 'opatv antid ( 'abo/t .'/liT.
Inc.. 360) U.S. 23 (1958). There is no dispute that a major-
ity of the employees in the bargaining unit described here-
inbelow designated O()(A as their bargaining representative.
Furthernmore it is apparent from the conduct of Respon-
dents that the had no doubt of it.
II1. I III I NIAIR I Ai)R P'RAt 1S
Ihe Bargaining I:nit Ins olcd
During the course of' the hearing RespondenLts amended
their answer by adding the followinlg a;dmission:
'Ihe bargaining unit described s all river guides em-
plocd hi by lliott Riser 'Tours Inc.. at its Oregoin op-
erations. excluding area man;lager. warehousemenl.
\ hlch Included Julie BHsrs. whlse ttus a
.
, ;a super lsor INs ;an 5 si,
herei. It is noted that it is hound hereinhelow that during the time materil
herein she was a supervisor.
driers, olffice clerical empllecs. prtldcs-ill;ail ctllilo !-
ees. guards and superrsisors s definedl il thle Acl. hald
been at all trines, material heriein. anT appropliille bar-
gaiting unit fior the purpose of collectixe hargaiiii.
within the meaning of Section 9 of tIle Act.
'Iheretore. based tin said admission, it Is l'Outid that the
above-described hargaliitg unit is an approprite bargain-
itg unit s ithil tile meaning oft' Sectionl 9 of Ihe Act, there
being nothing in thile record hich s ould make such ftidine
unsrranted. It is nioted at this pointl that, although their
sork vsas seasonall, tile guides customaril returned rom
season to season (during the w;arnier 4 or 5 monuths of hc
e ar).
Managemlletlt lPcsormel
l:or ready reference there is set forth hereinbelow the
relevant management personnel of ARTA and ER]. It
should he noted, at this point, that it was itipulated that on
June 10. 1977, ARTA purchased all the stock of' FIR frorm
l.ou IElliett and his ife. (Claire. It is also noted that AR I A
does not own an other outfitter which runs the trips
AR1'A books.
During the time material herein. F RI's board of direc-
tors \sas composed of its officers (irant Rogers. presidenlt
Ned Robinson. secretaro: and Marv Mecca. treasurer.
Also, during the time material herein. ARI A's board oft
directors consisted of' the abose-niamed three officers and
board directors of' E RI'. as well as I.ou Illiott AR I A's
president, alnd six others whose names are not material.
In addition. Stephen (Cutright, v ho testified he had heen
associated ith both AR'I'A and RI' tir 9 ears in svarious
capacities. was emphloed at a meeting of ARVFA's lind
IR l's directors on Jul (6. 1978' as a consultant for both
ARI'A and F IR'I with authorits to manage both cmpa-
nies apparenlyl in anitliclpatiolln his assuming on Septem-
ber 1, 1978. the positions of' vice president and executise
director of ARI'A and president o' F-RI' to be paid b both
on a 50() 5) hasis. Further. accordiing to ('utright's testi-
ionrI. his compensation (n a 5 5 basis) for the period
prior to September I and for the period thereafter was to he
decided at subsequent meetings of the ARTA and R I
board of directors. I'his is one example of the integra;lcd
operations of' the to Respondents which gaxe rise to the
confusion in the record ith respect to the two entities. In
addition. according to his testimony. the ARI'A board
agreed in September tin h he wsas to he compenslated,
and the R'I' board adopted thle arrlIgelle t it it a leeting
n () October.
('hronolog i of |' Ivents
In a letter d;lted Julv 1). 1978 oer the tiped names of
the complement f Ot()regon guides (who scre paid b, R'I)
and addrcssed to "AR'I'A and FRI' Buoards of' )irectors." it
Wlas stated th;l tile "undersigned constit te the menmber-
ship of1 ()A and that their participation in reaching deci-
sions cneerning trip sa;lety anld in elements of AR'I'A in
polic -manking decisions ill contribute greatli to the oer--
all health oft' ARIA. l-urther. it is stated:
' lie tcstilied that he gt the Imlpression thall t .as ",'srt (. .a joint boildl
meeting" since directors of hboth complnies erc present a;nd .tlu 'l hlilt.
president ot ARI A,. presided.
938
I il 1()i I RI:R
It'. teretore. x\e arFe ton cnitinliC I Ntillr CIIpi)i. xsc
niust nsist tIhal to acceptl tile tlo iltg crondliti,llm
(I) he ARI'A aid I.R I Boards ot Illrectors shail
recognize the Oregon (uiides \ssicilion ; s thile lciti-
mate bargaining agent for all imetiber gulles. I he
ARTA and ER'I' Boards shall meet n good fiuith x, ith
the Association's chosen representative(s) \, henever
there arises the need for negotiation or discussion be-
tween management and guides. All guides shall be se-
cure from dismissal or an! other frm of reprisal for
her/his involvement with the Association.
(2) In the event that ARIA and/or ERT sell or sub-
contract an) river operation that has emplo ed one or
more members of the Oregon Guides Association:
ARTA and/or ERT shall include contract provisions
that provide as much job securit' for member guides
as is legally possible. Specifically. AR'IA and/ or I:R
shall require in any future sales colitract or subcon-
tracting agreemet that Association members be gi',en
first priority in hiring by the new operator. at the same
or higher age levels and general ,orkiig conditiolns
that prevailed at the time of the transaction. lhe nes
operator shall also be bound b contract to the recog-
nition of our Association exactly as described in = I
above.
We pledge to carry on normal river operations tor
two weeks from this date, during which time the Board
may meet and assent to the above conditions. We can-
not in good conscience. however. work the White Wa-
ter School scheduled to begin JulI 23. 1978. nor an'
trips that follow that date, without our express Itritcit
agreement to the above two conditions.
We earnestly hope to hear from you before then.
The above-mentioned letter wais received on July I 1. and
what has been described by Respondents' witnesses as an
ERT board meeting was held on July 12. Present at the
meeting were Rogers, Robinson. Mecca. Lou Elliott (who
had, at the time, no official connection with ER-I'). and
Cutright (who b this time was acting as operations man-
ager of both ARTA and ERT). It should be explained, at
this point, that ERI had two types of' river operations
scheduled after the deadline of Jul 23, a 2-week white-
water school commencing Juln 23, and 10 commercial river
trips on the Rogue River.' Byars was "in charge" of both
Oregon white-water schools scheduled for 1978, one of1
which was completed prior to July 10.*
Cutright and Mecca testified as to what occurred at the
above-mentioned board meeting on July 12. oCutright testi-
fied that they discussed OGA's demandnd aid what options
they had in terms of subcontracting or hiring new guides as
well as the question of whether all of the guides were seri-
ous and what position Michael Anderson. the Oregon area
manager. was taking. He further testified that Mecca stated
she had received assurance from Byars that she would run
' 'hlite- ater chot ls are distinguished Irolnl colIllllercll II p1 i tat the
former are designed to instruci participanls in the art aling ai riser
guides
' Byars' responsilhlilies with respect to the school are dlsus,cd hereinhe
low In resolving the isue of i helher she should be collsitered ai .l irpers isor
within the meaning of the Act
It) RS. IN( ,C
tile slch)l. A s. h ie testified tat IL ll sas i,,kc t ill]
\ndelr son. lecl tlestified tht IT I rpolted thut \11nI l-
S,)n said "I''' %.si \kih the il' lies.'' ( IIC111 testitied l ti,.
based ol leccia's repolt l 1 ;ls .sur irllne. tIhe lt' thilt
the\ could "trels" onil her to run he school. lie urther tetil-
tied that Mec;a aridl hle ere gl\en the resmponslbIlit\ it
checkin g to see it' ilie could ind oither otittitcll \er hho i lid
take o \Cr the conlnlrckl;rl trips dli tIha1t the\ ta;rtled iking
c;ills lor that piirpoel oi .ill\ 13. ()11 tlie otherl ih.nd. stilltl
\leccl testified that tlie conlilercial trilps sre nit dlis-
cussed t the meetin she further testified that orn .Jul\ 13
she called the Bureau of I and lanagemn ent fotr a ugges-
lion as to hou to procure guides. st;tin that %',e has e
lates and we will need people to run the trips." Suhse-
quenl\. she testified that at the meeting on JulN 12 (utright
was given authorit'. ostensibly on htlhalt oi ARI A. to suh-
contra;lct the colmmnercial trips with other outtitters. it lie
deemed it necessalr\.
O ill 14 ( utrighlit Iett ( alifornia on an automnobhle trip
to hlls honme in (icero. Illinois. and arrixed lhere on Jlulx 18.
Ile testified that he id not have ans contact uilh "Oak-
land" on JulN 15. 16. and 17.
Robinson sent ia letter dated Jul i 13, as scretar ot ['R I
addressed to the indix idual guides v, hich. in part. reads ias
Iollous:
Dear Oregon uides:
ARTA and tER I have received an unsigned cop ot
a letter dated Jul 1(). 1978. We are presentlI a;Iiting
a signed copN before taking an\ action as a Board.
NaturaiNi. we would not want to take anx action
against an person whose name nma appear on the
letter bhut had not been a signator to it assuming ans
action is indicated.
Since I am a member of both EIRT and ARIA
Boards. I woulid ike to share with each ofl ou mni
thinking with respect to your demands. In this coinnec-
tion. as vou probably know, we haxe heretofore met
uith and discussed similar problems with some of our
Idaho boatmen. So that ou might know what is tran-
spiring in other areas, we enclose a cop> of their ques-
tions and concerns and a copy of our response.
You will note. that with respect to Idaho, we have
been unwilling to recognize any individual or group of
individuals as a spokesman or spokesmen for a particu-
lar group or association and are unwilling to recognize
any so-called "legitimate hargaining agent" for all ot
the member guides. As mentioned in our June 22nd
letter ostensibl\ addressed to one of the Idaho guides].
ue believe that collective bargaining or unionization is
inconsistent with a total team eflbrt aimed at the ex-
ploration and enjosment of the maximum number of
people of our ilderness rivers.
' Both Mecca and B!ars lestiiied that thes had a conversation prior to the
meeting in which B3ars stated she would run the school. but Mecca lesified
thai she asked ior her i.sslurance i , rinng which Bars agreed to do. while
t[1.1isr denied thal there wais ans requestl for writlen a slrainc NI onl *s
B)ars the mnore co~sincing wiltness on this pont. hut also it I, nted that
none o. Ihe other ol Rcspondentis uitnesses estiiled that Mecca reportcd she
had rcqulesicd inld cpecied such a letr trmi B.lr. aIlnd Meccal mlllde no
nlellnlin itl her lestinltl or reporting io) others ill nllniagenienl that Ba.rs
s.a, io lendl slch ;i letter tIherelore. Is irs ditnlal is credited
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The letter also contains an explanation of why OGA's
demand with regard to sale or subcontracting is not accept-
able ("bad business" and "dubious legality"), and the state-
ment: "Again, to repeat: we have no plans to sell or sub-
contract any' river operation employing any of' you." It is
noted that at the above-mentioned meeting which Robin-
son attended on the day prior to the letter. Cutright had
been authorized to enter into subcontracts, if he deemed it
necessary.
OGA sent a letter to Robinson dated July 16. over the
name of OGA and the typed names of the guides, which
contains an explanation of why the signature of each guide
was not appended to the July 10 letter (the guides were "in
several different locations" at the time it was typed). As to
the demand with regard to sale or subcontract. it is ex-
plained in said letter that their demand with regard thereto
was predicated on their understanding of the protection
provided under the National Labor Relations Act in the
event of a sale or subcontract.
According to Cutright's testimony, starting on July 13 he
and Mecca began looking for outfitters who would be inter-
ested in taking over the commercial trips. He found two
who were, but they "were not interested in taking over 1978
without a commitment from us that we would go with them
for 1979." He further testified that on the morning of July
19 he, Mecca. Rogers, and Elliott decided to subcontract
the 10 Rogue River commercial trips to Joseph Daly of
ECHO, the Wilderness Company, and Tony Campagnoni
of the California Outdoor School, and that he made the
commitments to them on the morning of July 19. Daly, who
was called as a rebuttal witness by the General Counsel,
testified that Mecca called him and asked if he could run
any of seven or eight of "their Rogue River trips": that he
called her back and said he could run one; that on July 17
or 18 he heard from Cutright who asked him if he could run
the one trip: that he asked Cutright to call him back. which
he did on July 19, at which time he said, "yes, we can,"
because he had an open spot on his schedule: that they
talked about his taking the same trip in 1979 to which he
agreed: and that he did not make it a condition to taking
the trip in 1978 that he also be given the trip for 1979. On
surrebuttal Cutright changed his testimony and agreed with
Daly's testimony that Daly did not impose being given the
1979 trip as a condition to taking the 1978 trip. Cutright
then testified that the "vast bulk" of the trips for 1978 and
1979 had already been subcontracted (ostensibly to Cam-
pagnoni) and it was not feasible to set up one trip for ERT
in 1979.
Sara Deubner, the ARTA reservations manager. testified
that on the morning of July 19 Mecca called her and "said
that the Oregon Guides were going to be striking and that
the trip [the white-water school] wasn't going to run," and
that she was to proceed to cancel it. It appears that there
were approximately 18 people who had signed up for the
school. She further testified that it was agreed that she
would try to contact them and notify them that there was a
good chance "it would have to be canceled if the labor
dispute was not settled satisfactorily." According to her tes-
timony, she was able to convey the message to nine of them
and was unable to reach the other nine. Those she con-
tacted were told "not to move until they heard from us." To
continue with her testimony: Rogers was going to let her
know by noon on July 21 if the school were to be canceled:
on the morning of July 20 she received a call from him
telling her to cancel the school: before she was able to reach
any of the students she received a call from Byars in which
Byars stated that the guides "did not want to strike" that
"they did want to work" and felt that the dispute "could be
peaceably negotiated," and that they had so notified Rog-
ers: she then made no further effort to contact the students:
Rogers called again and told her to go ahead and cancel the
school: she told Rogers that Byars "said they were going to
work." to which Rogers replied, in effect. "That doesn't
matter." Deubner further testified that the telegram then
came from OGA "reiterating their resolve" to work.
The telegram to which she referred. dated July 20. ad-
dressed to Rogers and the ARTA board of directors reads
as follows:
I.ADIES AND) GENTLEMEN OF FIHE BOARD
YOU ARE HEREBY NOIFIED HAT IHt OREGON G(;UI)I.S
ASSOCIATION ON BEHALF OF THE FOLLOWING( MEMBERS
G. BERLANT. G. BURTON. J. BYARS . CORNEI.I. J.
GOLDEN, K. JONES B. REINTHAL. J. SIIVA. S. rI(CIIENOR,
S. WIIBURN OFFICIALLY WIIHDRAWV' IHIE DEADLINE ()OR
NOT WORKING AS MENTIONED IN OUR ITtiER OF JUILY
10, 1978 AND PLEDGE OURSELVES 1O( (CONTINUE WORK-
ING; UNTIL SCH IME AS VWE ARE UNABIE 10 RESOLVE
THE RECOGNITION ISSUE IN IHE ADMINISTRATIVE PRO(IL-
DURES NOVW BEING FOL.LOWED TIIROU(;L( OUR FIL.IN(i OF
A NAIIONAI LABOR RELATIONS BOARD PETIHION SEEK-
ING RECOGNITION.
OREGON GU(iIES ASSO('IAIION JtlIE BYARS
According to her further testimony, before she attempted
to call anyone she went to lunch, and when she returned
she found Elliott had started calling some of the students,
saying that the school "was definitely off': that she joined
him in making such calls: and that the message was con-
veyed to nine of the students.' Deubner's above-summa-
rized testimony was not contradicted and is credited.
A telegram dated July 20 addressed to the individual
guides reads as follows:
YOUR LUNNE(;OTIABLE D)EMANDS AND AIE )DAI OF
SE('OND UNSI(;NEI) L EER DATFI) JUI.Y 16 HAS I.EFI US
WITIH NO OTHER AI.TERNATIVE BU T (CANCEI Tti
WIl ITEWATER S('CHOOI..
VWE AC('EPI YOUR WORD THAT A. PERSONS ON YOUR
IETER IIAX\E SIGNED AN ORIGINA. COPY IN YOUR FIL.ES
AND 'THESE PERSONS ARE FUL.Y AWARE OF HE TERMS
OF IHEIR DEMANDS. rWE HAVE AND ARE MAKING EVERY
EFFORT ro NOIIFY ALL. SCHEDUI.EI) Wll IE\ArFR (IS-
TOMERS OF THE SCHOOI. S ('AN(;E.I.ATI(ON BU1 RR(;E
SOME ARE ALREADY ENROUTE. WE RESERVE EVERY RIGHT
10 USE ALl. L.OGAL. [SIC] STEPS NE( ESSARY TO REIMBURSE
IHE (OMPANY FOR l.OST BUSINESS INOME [SIC| AND ANY
AN) Al.L LIQtUIDATED DAMA(;ES OR EXPENSES BROUG(;HI
A(AINSI UiS BY (SIOMERS RSUI.IIN(; FROM INI)INII)-
L:AI. (;LUIDES IMPROPER ( OND) ( 1.
8 Although i is not material to the issue herein. it is noted that Anderson
was authorized to and did conse the message to the students when they
arrived that the) could have a 3-da: free trip in lieu of the school. but that
another outfitter independentl undertook the running o, the school appar-
entl b Bars and several other members of OGCA).
940
.l.l.IOT'l RIVER TOURS. IN('.
WE WII I AI) lSE- Y tl ( l (it R IINAI t)E( ISI()N I )R
Rt!NNIN(; Il RMAINING S('111t)t I I ) RIVI-R IRIPS 1(-
M()RRG J 21 IN ORDI R Sil I )O R 1)1MANI) (t0
RIPIl.YIN( PRIOR I() J l Y 23.
II RO(iGERS AR 1N AND I) I
A letter dated July 20 addressed to the individual guides
reads as tollows:
D[ear Boatmen:
This is to confirm the telegram that each ofyou have
heretofore received from (;rant Rogers. to the effect
that the White Water School has been cancelled and
your resignations have been accepted. effective July 23.
1978.
We sincerely regret having to take this action, but
we felt our primary responsibility was to those custom-
ers who had signed up to run the rivers for them, we
have made other arrangements.
It is unfortunate that your demands were non-nego-
tiable and timed so as to leave us no other choice.
I have always felt that in the interest of all con-
cerned it is best to try and work out our problems
without having to resort to deadlines and brinksman-
ship.
We regret that you will not be a part of ERI-ARTA
ftr the remainder of the 1978 season, but hope and
trust that you will have a delightful and meaningful
summer.
With best of luck to you all.
Very truly yours,
ELLIOTT RIVER TOURS-AMERI('AN RIVER
TOURING ASSOC(IATION
By /s/ Ned Robinson
On the morning of July 21. Byars called Cutright in Cic-
ero, Illinois. Byars testified that she explained to him what
occurred on July 20 (apparently the telegram of that date
notifying the guides of the cancellation of the school): that
she told him she "felt things were out of control" and asked
him to help "us get some kind of communication going with
the office and try to . . . retract this cancellation of the
White-Water School": that he said he would try and told
her that "there was a lot of hard feelings in the office about
the whole deal": and that he said he would call her back in
the afternoon.
Cutright testified with respect to his conversation with
Byars that she said "that the situation had really gotten out
of hand, that they all wanted to go back to work, that she
especially wanted to run the school." He further testified as
follows:
She said that the big problem was that there was no
communication with the office: and, at that point, I
reminded her that there had been fairly extensive com-
munication with her and that-I reminded her that
Mary Mecca had talked to her and that she had wai-
vered her position with Mary Mecca considerably and
that, finally, we had come to the conclusion that we
just couldn't count on her.
Q. And, did you tell that the company had made
any commitments?
A. I had said that the companN had made up its
mind and we were committed to tr; and find other
passage or cancel out the White-Water School passen-
gers from their trips entirel.
Q. Did ou tell her what the situation was with re-
gard to the trips, the river trips')
A. In regard to the commercial trips. I told her that
we had already made subcontractual arrangements.
Q. And, did she have a response to that?
A. She said that she didn't care about the other
trips. All she wanted to do was run the school.
Subsequently. Cutright was asked what his response was
to her last statement, and his answer was that "Aec had
alreadN started to tell the passengers that we wouldn't run
that school." He further testified that he discussed Byars'
offer with Mecca, that it might he a "ploY" to get the stu-
dents down the river and then have a strike.
Byars was subsequently called as a rebuttal witness and
she testified that Cutright did not say to her that she had
waivered so much that she could not he relied upon. She
also denied that Cutright said anything about the commer-
cial trips on the Rogue being already subcontracted out to
other outfitters or that she said anything to the effect that
she did not care about the fate of the commercial trips.
Of the two. Byars was the more convincing witness, and
her version of their telephone conversation is credited.
There is no dispute that Cutright failed to call her hack as
he had promised.
A telegram dated July 21 addressed to the commercial
guides reads as follows:
YOUR SERI(EIS \WII.l NO) BE REQt.IRED Al- rER Jl.Y 22.
1978 AS WT IHAVE BEEN FOR(Et) TO lAKr OTHIR R-
RAN(;EMINTS FOR lilt PROIt-('1TIN 01 AI O R (I S-
I(NMI RS S( 111 ED) I l) MKE FIt R RR IRIPS IN
YOUR ARiA. Ill R IOt t) .S.
G 11 ROGERS ARIA-IR I
A mailgram dated JulI 22 from OGA addressed to Rog-
ers. Elliott. Mecca, and "ARTA-ERT Boards of Directors."
reads as fllows:
WEF. 1HF OREGON GUItDES ASSO('LAIION. DEMAND IIIAI
YOt: NiOTIAIE WITIH US (ON('ERNIN( OUR WAG(iS.
IIOtRS. AND (ONI)FITONS OF EMPIOYMEN1. WEL R(;ARD
Y(OUR A(TIONS IN )IS(CONTINIIN(; OR ORK NI)
I)EI.E(;ATING 10 T)HERS AS NFAIR I.ABOR PRA( I( IES.
SV E ARE READY, WII.I.N(;, AND) ABI.E BO1H 10 ('ON rlN I
OUR RIF ER WORK AND 10 NEiG()OIAIE WIH YOU AT ANY
REASONABRE IME AND PLACE.
A telegram dated July 24, addressed to the individual
guides, reads as follows:
IN REGARI) YOUR IEI.EGRAM DATED 7 24-78" WE (cON-
IINlE I10 RE(COGNIZE YOU AS INI)I\II):AI.S BUT NO1 AS
A (OtEI.L.(I'IVE BARGAININ(; RPRI:SENIAIIVI OE OUR
EMPI )OYEES. EFFEfIVE IODAY YOUR AITORNEY AND
OURS ARE IN CONIA(CT AND WE WII I ADI)VISE RSUI.IS.
I RO(iGERS
ARIA-FRI
Apparently referring to the above letter dated Jul 20
10 Apparentl? referring to (A's telegram dated Jul 22.
941
I)I('IISI()NS ()Of NA I IONA I IAB()R RIA II()NS BOARI)
01f the above-menltionled 10 cmmercial rivcr trips schid-
uled to he run on the Rogue River on or about July 23, one
was run hb l)alk and one h ('ampagnolni. Of the other
eight trips on the Rogue River. which ('utlrigh testified
ARTA subcontracted to ('amnpagnoni, five were Iranslferred
to the Klamath River. utright testified '"lon ('am-t
pagnonl found difficulty running on the Rogue. Ile found
difficulty fiI t(ing guides. le had difficulty with his logistics,
so American River 'louring Association agreed to transfer
the passengers dow n to the Klamath Riser atnd have I o)II
complete operations on the Klamath River." IThree of ('alll-
pagnoni's other trips on the Rogue were later subcontracted
by ARTIA in August to two other outfitters a Mr. (;rieses
and a Mr. Robinson.
Anderson, ERT''s Oregon area manager, was terminated
at the end of July. le testified that while he wIas still em-
ploved in the last week of' July he called Rogers and told
him that he knew there was difficulty in obtaining guides
and that there was a crew available: that Rogers wanted to
know "if' it was any of the people who had signed the letter
[ostensibly O(;A's letterl": and that, when he answered in
the affirmative, Rogers "said he was not interested in those
people working the trips." When questioned about this tes-
timony, Rogers denied having had such a conversation with
Anderson, but subsequentlt he testified that he Iold Anlder-
son "that at any time any of his people wanted to work fior
ERT in other areas, the could go there anid seek employ-
ment." Anderson was the more convilncilg itness, and I
credit his testimony.
It is noted, at this point, that two of the guides whose
names were appended to OGA's letter subsequently worked
for ERI' in Idaho, Zekiel ('ornell and Susan Wilburn. Wil-
burn credibly testified that she had arranged in June to
work one trip in Idaho sometime after July 21; that she
called Rogers on July 21, after she had received the tele-
gram dated July 21 stating her services were no longer re-
quired, and asked about her Idaho trip: and that Rogers
told her there was no work or her in Oregon. hut ift' there
was work for her in Idaho she could go there. 1t appears
that she worked two trips for ERT in Idaho because there
was a vacancy on a second trip. She further credibl testi-
fied that she had been scheduled to return to Oregon to
work three or four trips after her one scheduled in Idaho.
Concluding Findings
AR'IA and RT: A Single Enterprise
It is concluded that, at least with respect to the issues
herein, ARTA and FRT are a single integrated enterprise.
This is predicated mainly on the following factors:
I. RT is wholly owned by ARTA (which does not owln
any other of' the outfitters for which it books trips).
2. The officers and directors of ERI' are on the hoard of'
directors of ARTA.
3. At what was characterized by Respondents' witness as
"a sort of a joint hoard meeting" of ARTA and ERT on
July 6. 1978. ('utright was hired as a consultant in anticipa-
tion of his becoming an officer of both entities on Septem-
her I and subsequently was paid or his work during the
time material herein and thereafter on a 50 50 basis hy
both corporations.
4. )uring the time material herein. ('utright was autho-
rized to make and made decisions for both ARIA and
ERI .
5. At a meeting of what was characterized as FRI's
board of directors. (utright was authorized to subcontract,
on behalf of ARTA, trips which were to have been run bh
[ RI.
6. Mlecca supcrs ised the accounting and bookkeeping For
both corpoa;ltiotns and wvas compensated h thent on a 5()
50 basis. I he clerical workers whon she supervised were
paid by AR I-A, and their books and records were kept in
what was chilaracterized as -R I's office which was in the
satie building as AR'I A's oflice.
7. ARI A paid three-lourths of the rent or the two of-
fices and RI paid one-fourth.
8. I here is considerable confusion as to who was autho-
rized to act on behalf of the two companies. or example.
I)eubner, AR I A's reservation manager, testified that, while
Elliott was her only superior as president of AR'IA), she
accepted Rogers' order to cancel the school. Other exanm-
pies are in communicatiotns to the members of( O(A. The
telegrams dated July 20, 21. and 24 were over the name of
Rogers on behalf of' ARTA and FRI . and the letter dated
Jlu1 2() to the guides vwas signed by Robinson on behalf of
[RI and ARIA.
9. Permits which were required to run river trips by FRI
and which. it is testified, were paid for hb FRI were in
AR'K A's name.
10. (bah;rge accounts which were used by R'I guides on
river trips were in A RI A's name.
II. ERT's phone number in its Oakland office is the
same as that of ARI'A.
Supervisory Status of Anderson and Byars
Respondents deny in their answer that Anderson was a
supervisor, while the General (Counsel contends that he
was. It would appear that contrary positions would have
been in the interest of the parties, since Anderson's job was
terminated as a result of the closing down of FRT's Oregon
operations. It is apparent, however, from Anderson's cred-
ited testimony that he exercised supervisory authority as
FRT's manager of Oregon area operations. He testified that
he hired guides for the operations in Oregon and while he
never had the occasion to fire anyone, he believed that he
did have such authority, or at least could effectively recom-
mend a discharge. 'Ihus, it is concluded that he was a super-
visor, during the time material herein, within the meaning
of the Act. It is noted that in their brief Respondents, in
contending Byars was a supervisor, analogized her responsi-
hilities with those of Anderson.
T he supervisory status of Byars is not as clear as that of
Anderson. She testified that in 1978 she "worked" one
white-water school in Oregon, apparently for 26 days: was
scheduled to "work" the second. apparently for 14 days
(which was canceled): and anticipated working as a guide
on commercial trips for the remainder of season. "if I had
been needed." but that she had not been specifically sched-
uled to work any of such trips. As to her responsibilities in
wsorking the school, she testified that she was responsible for
the pretrip preparation which included "corresponding with
the studenits who were to) attend, working out the permits
942
tJl1l I RIVER 'Ot RS. IN('
on the rivers we were going to run . Her testimons that the guide
continues as ollows: school's riser
Other responsiilities included selecting the staff'. I It appears
Ing was effecft
was able to choose the staff that I uwanted to use tfor the supported hN
White-Water School. and iven the direction that 75
OGA to repre
percent of that staff should be from the Oregon sentative. Alse
guides those that Michael had hired for his season. I
was allowed to bring in one guide from another ARTA taining s p
operation. and I did that. spondents ma
It appears that the only other restriction on her selection of promise could
guides for the school was to get clearance from the area to sale or subc
managers that her selection would not interfere with their that it be reco
scheduled operations. It further appears that the only su- which. as ahol
pervision she had from either ERT or ARTA in running the principle. (on
schools was from Mecca, and that was onlh with regard to seek subcontr
finances. was motivatec
In Section 2(11) of the Act defining the term supervisor, Ihe action R
one of the disjunctive criteria'' is the authority to "assign." school. even t
Consequently. it appears that I am constrained to hold that drawn, leads
Byars was a supervisor within the meaning of the Act and to subcontrac'
not entitled to protection under Section 7 of the Act. Al- intent to destr
though the General ounsel argues that she was not re- since it must h
garded as a supervisor by the guides. it is clear froml the guides schedu
record that they were aware that she had the authority to hargaining un
accept or reject applications to work as a guide in the Respondent
school. It also appears that working as a guide for the tended to sub
school was considered by the guides to be a desirable as- the school or
signment. either action.
its representa
out tor the rerThe Violations of the Act out tor the re
above. cannot
even though
The General Counsel argues. in effect, that the subcon- a position tak
tracting of the commercial trips for the rest of the 1978 rema;inder of
season and for the 1979 season was made subsequent to the for the 1979
withdrawal of the strike threat. Daly. who contracted to a;tfirmative tie
take one of the trips, credibly testified that the erbal com- the actiot taki
mitment to do so was entered into on July 19. The strike sure.
threat was not withdrawn until the next day. oCutright testi- Instead of'
fled that he entered into the subcontracts with Dals and hb telegram
Campagnoni on July 19. Although Cutright was not a t/hi /t ecre'
wholly credible witness on this point, in iew of' the change guide's iu Re
in his testimony (that Daly, as well as Campagnoni, insisted final decision
on a contract for 1979 also) after Daly testified to the con- was not only r
trary, nevertheless, I am not satisfied that I can discredit his subcontracts
testimony that Campagnoni imposed such a requirement, Respondents I
and that he entered into a commitment for the rest of' 1978 As an affirt
and for 1979 with Campagnoni on Jul) 191! assert that an
However I am of' the opinion that. considering the span prising the ha
of the subcontracts, they cannot be characterized as a "ern- their hs ing e
porar," defensive action in face of a strike threat. More lawful replace
importantly, I am of the further opinion that the action was their loss otf e
taken, at least in part, to destroy the bargaining unit. he pointed ut it
fact that the white-water school as canceled after the 1275 1978
threat of a strike was withdrawn lends support to this opin- vianced that
ion. I am not persuaded by the explanation that it ssas
feared that the withdrawal of the strike wlas it "ploi" and
I" A, tdln her
l..Ahed-('lll/h;rn, (' a .tlp ..ti.. D' t I [, Ro h,d 4r rl/ ( - 1 rpri guide eclon pleenl
trn. 207 NlRB 686, 687 (1973} 1 ni .il dmit
('amnipagnonl awis nt called a, is , tless. afnd I dol nlt helic\ .i rc- .1i he .i, IlillblhI
sumption can he raised against ;ins ot Ihe parics Ior Ihe tl.lhrc t. call hllll ther oultiltcr ha
943
s ould go out on strike in the middle of' the
opera tirons.
'rom the record that. hefre the subcoitract-
ed, Respondents had no doubt that O(i A was
its Oregon river guides and that thes desired
sent them as their collective-hbargainilig repre-
I. it is clear from Robinson's letter daled Jul
*ndents rejected the principle otf collectie bar-
plied to the running of river trips. Thus Re-
de no eflort to ascertain whether sonic conn-
hbe reached as to ()CiA's demand with respect
ontract. I he onl tither demand b,, ()(iA Aas
gnized as the bargaining agent of its members
ve stated. Respondents rejected s maillter of
isequently. it is interred rom the decision to
actors for the commercial river trips that it
I hby a desire to escape collective hargainung.
,espondents took to cancel the white-water
hough the threat of a strike had been with-
me to infer that Responidents were motivated
I the river trips and cancel the school b the
roy the bargaining unit of its ()regon guides.
a;lve been a;lare that at least 75 percent of the
led to wuork the school trip were part oft the
s made no effort to notifls ()(OA that it in-
contract the commercial river trips or cancel
ofler to consult with OGA with regard to
even though it had no doubt of OiA's major-
tion of the bargaining unit. Subcontracting
nainder of 1978 and for all of 1979, as stated
be characterized as a "temporary" measure.
Resptordents might hae been conlronted with
en h\ (amrlpagnoni that he would accept the
the 1978 sea;son only if given all of the trips
season. Moreo er. in vieu oft Respondent's
fense. discussed hereinbelow, it appears that
en was not considered to he a temporary i ma-
iloitN ing OGA and offering to consult ,ith it.
lated July 2). ilt' dai tie/r (utrighl t.etj/i'd
into I/ri .th( otlirat' l.%, R.poldcnilx nti/tid //t'
,is' nidi. s iou,. adi. xe i/itn on Jlul' 21 "of our
l'or running scheduled river trips." Thus O(;A
not gisen an opportunity to bargain about the
but wUas also deceived as to the action which
had already taken.
native defense in their answer. Respondents
3 loss of employment of the individuals com-
rgaining unit involved herein "resulted from
ngaged in strike activity and their subsequent
ment, which, ais stated ahoe. indicates that
nplo rmnt was intended to he permanent. As
i 4mri(uan ('tianamid ( io atii. 235 N I RB
in hich the argument as apparentl? ad-
cctlnoilic strikers ma he pernilalnentl re-
renmahoe. BH/ rs, ui required i o eil clli perceni ,1 tlie
i the sli-tl iriiil the regon guiluiie
1.l [hiere Is . illC ,i.lh i I lls fIIIrd .dhoil Iis. i i, lllmch
h, tial l hi, trllrt.lkl fr all iof the trips il 19 8 .and I, o
hd t e ttital rn t ree 1 the rips
DECISIONS OF NATIONAL LABOR RELATIONS BOARI)
placed during the strike by new hires or by contract without
notification and bargaining with the union. "permanently
contracting out the work of unit employees is not equiv-
alent to replacement of one employee with another." Thus
there is no merit to this affirmative defense.
Consequently. I am led to conclude that subcontracting
out the unit work for the remainder of 1978 and all of' 1979
and canceling the white-water school, without notifying or
consulting with OGA, was motivated by the intent to de-
stroy the bargaining unit and violated Section 8(a)(5), (3),
and (I) of the Act.' 5
IV. THE EFFE(CT OF 'riE UNFAIR LAB()R PRA(t I(tI[S UPON
(')MMERCE
The unfair labor practices of Respondents set forth in
section III. above, occurring in connection with their opera-
tions set forth in section I., above, have a close, intimate.
and substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow
thereof.
V. HE RMEDY
It will be recommended that Respondents. jointly and
severally, be ordered to cease and desist from engaging in
the unfair labor practices found herein and take certain
affirmative action, as provided in the recommended Order
below, designed to effectuate the policies of the Act.
In view of the findings and conclusions herein, it will be
recommended that Respondents be ordered to bargain in
good faith with OGA with respect to the above-described
bargaining unit, upon OGA's request, and embody in a
signed agreement any understanding reached. Furthermore.
it is recommended that insofar as it is feasible.'" Respon-
dents be required to reestablish the status quo ante. R & H
Masonry Supply. Inc., 238 NLRB 1044. fn. 2 (1978). Conse-
quently, it will be recommended that the atbresaid bargain-
ing be retroactive to July 13, 1978. the date Respondents
rejected the principle of collective bargaining and initiated
steps to destroy the above-described bargaining unit. Fur-
1 I cite no cases in support of this conclusion. inasmuch as research has
failed to reveal any decision of the Board or the courts sufficiently similar
factually to afford a suitable precedent.
i Since, by the time this Decision is issued, Respondents will be in the
middle of their 1979 season in Oregon, it ma) be too late, ior eample. to
resume a white-water schooxl. if no preparations have been made to conduct
it during the 1979 season.
ther. it will be recommended that Respondents jointly and
severally. be ordered to offer to (ary Berlant. (jail Burton.
Zekiel Cornell. Jeflrey Golden. Kathy Jones, Doug Rein-
thal. Jim Silva. Steve ichenor. and Sue Wilburn immedi-
ate and full reinstatement to their former jobs in Oregon.
without prejudice to their seniority or other rights and
privileges, and rescind any contract or contracts which
would prevent Respondents from doing so. It will be fur-
ther recommended that Respondents. jointly and severally,
be ordered to reimburse the aforenentioned individuals for
any loss of' pay they might have suffered by reason of the
subcontracting of Respondents' Oregon commercial river
trips during 1978 and 1979 and their cancellation of the
Oregon white-water school: said reimbursement to be com-
puted in the manner set lorth in ' W. Wool/orth (onpatv.
90 NLRB 289, 291 293 (1950). together with interest
thereon to be computed in the manner prescribed in Florida
Steel (orporation, 231 NLRB 651 (1977). 7
Upon the basis of the foregoing findings of fact and upon
the entire record in this proceeding. I make the following:
CON(I tSIONS O() LAW
I. Respondents are collectively an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. OGA is a labor organization within the meaning of
Section 2(5) of the Act.
3. OGA is. and has been at all times material herein, the
collective-bargainig representative of the employees in the
appropriate bargaiing unit described as follows:
All river guides employed by Elliott River Tours, Inc.,
at its Oregon operations, excluding area manager.
warehousemen. drivers, office clerical employees. pro-
fessional employees, guards and supervisors as defined
in the Act.
4. By rejecting the principle of collective bargaining with
respect to the above-described appropriate bargaining unit.
by subcontracting their commercial river trips for the re-
mainder of the 1978 season and all of the 1979 season, and
by canceling ther white-water school scheduled to com-
mence on July 23. 1978. without notifying or consulting
OGA in order to destroy the said bargaining unit, Respon-
dents violated Section 8a)(5) (3), and (I) of the Act.
[Recommended Order omitted from publication.]
17 See. generali Isks Plumbing & eatng (o, 138 NRB 716 (1962).
944