Sports Coach Corp. of America

National Labor Relations Board - Board Decisions

Apr 25, 1973

203 N.L.R.B. 145 (N.L.R.B. 1973)

SPORTS COACH CORPORATION OF AMERICA
Sports Coach Corporation of America and Dennis
Hamm. Case 31-CA-2807
April 25, 1973
DECISION AND ORDER
BY MEMBERS JENKINS , KENNEDY , AND PENELLO
On December 14, 1972, Administrative Law Judge
George Christensen issued the attached Decision in
this proceeding. Thereafter, Respondent and the Gen-
eral Counsel filed exceptions and supporting briefs,'
and the Petitioner in Case 31-RC-1954 2 filed a brief
in response to Respondent's exceptions.
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 has decided to affirm the rulings, findings,' and
i Respondent's motion to reopen the record for introduction of additional
evidence is hereby denied , as the evidence sought to be introduced relates to
matters which can best be resolved at the compliance stage of this proceed-
ing. Insofar as the proffered evidence relates to the validity of Hamm's
reinstatement and subsequent discharge , which is the subject of the charge
in Case 31 -CA-3429, in which a complaint has now issued , it may be admis-
sible at the hearing therein We note, however , that settled Board policy
requires reinstatement of discriminatees to their former positions , and that
reinstatement to a substantially equivalent position is sufficient only where
the former position no longer exists . Chase National Bank of the City of New
York, 65 NLRB 827. We shall amend the Administrative Law Judge 's recom-
mended Order to conform to this policy, as requested by the General Coun-
sel.
The General Counsel has moved to remand this case and consolidate it for
further hearing with said Case 31-CA-3429 Respondent has taken the posi-
tion that this motion should be granted only if Respondent 's motion to
reopen the record is also granted and the reopened hearing is also consolidat-
ed with that in Case 3I-CA-3429. Having denied Respondent 's motion, we
also deny the General Counsel's motion to remand , as any findings made in
Case 31-CA-3429 cannot affect our decision on the merits of this case
However , the Regional Director is free to consider the findings in that case
in determining whetner Respondent has complied with the Decision and
Order issued herein , and official notice may be taken of this Decision and
Order in the proceeding in Case 31-CA-3429.
2 The Administrative Law Judge severed Case 3I-RC-1954 from this case
and referred it to the Regional Director for further proceedings. Thereafter,
the Associate Executive Secretary denied Respondent 's motion to transfer
the representation proceeding to the Board and consolidate it with the instant
proceeding. Respondent has renewed its motion with the Board The motion
is hereby denied . By signing the consent election agreement herein , Respon-
dent agreed to make the Regional Director the final arbiter of any questions
relating to the election . Jas. H Matthews Co, Industrial Marketing Products
Division, 145 NLRB 1680, 1683, and cases cited therein. The fact that some
of these questions may also be relevant to an unfair labor practice proceeding
is insufficient ground for not holding Respondent to its agreement . Accord-
ingly, the Administrative Law Judge 's recommendations with respect to the
challenged ballots and Respondent 's objects to the election are not before us,
the Respondent's exceptions to those recommendations are not properly
addressed to us, and we do not pass on them
3 The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board 's established policy not to overrule
an Administrative Law Judge 's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions were incorrect . Standard Dry Wall Products, Inc, 91 NLRB 544,
145
conclusions 4 of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.
The General Counsel excepts to the Administrative
Law Judge's finding that the conversations of man-
agement spokesmen with the discharged employees
on January 13, 1972, consisted only of voluntary, full,
and free exchanges which involved no coercion. We
find merit in this exception.
As found by the Administrative Law Judge, on Jan-
uary 13, the day following their discharge, Robert
Spar (Chairman of the Respondent's Board of Direc-
tors) and dischargees Hamm, LeFleur, Fields, and
Sawchuck had a lengthy discussion of the problems
which had led the employees to seek union represen-
tation . Fields was offered reinstatement on Hamm's
assurance that Fields was not an active union sup-
porter. Thereafter, Spar asked Hamm and LeFleur
whether they would still need the Union if they were
reinstated and those problems were solved, and
Hamm replied that he believed the employees would
still need union representation. The possibility of their
return to work was not pursued further. In this con-
text, we are persuaded that the Respondent's inquiry
amounted to an offer of reinstatement and promise to
remedy the problems if the two men would abandon
their support of the Union. Such a condition on a
reinstatement offer constitutes a clear violation of
Section 8(a)(3) and (1) of the Act.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge as modified
below and hereby orders that the Respondent, Sports
Coach Corporation of America, Chatsworth, Califor-
nia, its officers, agents, successors , and assigns, shall
take the action set forth in the said recommended
Order, as so modified:
1. Add the following as paragraphs 1(f) and (g):
"(f) Conditioning reinstatement of employees on
their abandonment of support for the Union.
"(g) In any other manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed in Section 7 of the Act."
2. In paragraph 2(a), delete the words "to their for-
mer or substantially equivalent positions" and substi-
tute therefor the words "to their former positions or,
enfd . 188 F.2d 362 (C.A. 3) We have carefully examined the record and find
no basis for reversing his findings.
4 The General Counsel has excepted to the Administrative Law Judge's
failure to make additional findings of unlawful interrogation , threats of
discharge , and creation of the impression of surveillance . We find it unneces-
sary to pass on these exceptions , since any such additional findings would
merely be cumulative and, therefore , would not affect our remedy herein.
s Imperial Outdoor Advertising , 192 NLRB 1248.
203 NLRB No. 24
146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
if these no longer exist , to substantially equivalent
positions , dismissing , if necessary , any individuals
hired since January 12, 1972."
3. Substitute the attached notice for the Adminis-
trative Law Judge 's notice.
IT IS FURTHER ORDERED that the complaint herein be,
and it hereby is, dismissed insofar as it alleges unfair
labor practices not found herein.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which all sides had a chance to give
evidence, the National Labor Relations Board found
that we violated the National Labor Relations Act
and ordered us to post the following notice:
The National Labor Relations Act gives all em-
ployees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a represen-
tative of their own choosing
To act together for collective bargaining or
other mutual aid or protection
To refuse to do any or all of these things.
WE WILL NOT do anything which interferes with
these rights. Specifically,
WE WILL NOT question our employees concern-
ing their union activities or the union activities of
other employees.
WE WILL NOT threaten to discharge our employ-
ees for engaging in union activities.
WE WILL NOT solicit our employees to form an
employee grievance committee in order to under-
mine our employees' support of the Union.
WE WILL NOT give our employees the impres-
sion that we are engaging in surveillance of their
union activities.
WE WILL NOT discharge our employees for en-
gaging in union activities.
WE WILL NOT condition reinstatement of em-
ployees on abandonment of their support for the
Union.
WE WILL offer Dennis Hamm, Daniel LeFleur,
and Nick Sawchuck immediate and full rein-
statement to their former positions or, if these no
longer exist, to substantially equivalent positions
without prejudice to their seniority and other
rights and privileges, and WE WILL reimburse
them for any pay losses they may have suffered
by reason of our discrimination against them,
plus interest on the amount reimbursed.
SPORTS COACH CORPORA-
TION OF AMERICA
(Employer)
Dated By
(Representative) (Title)
We will notify immediately the above-named individ-
uals, if presently serving in the Armed Forces of the
United States, of the right to full reinstatement, upon
application after discharge from the Armed Forces, in
accordance with the Selective Service Act and the
Universal Military Training and Service Act.
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions, may be directed to the
Board's Office, Room 12100, Federal Building, 11000
Wilshire Boulevard, Los Angeles, California 90024,
Telephone 213-824-7351.
DECISION
STATEMENT OF THE CASE
GEORGE CHRISTENSEN, Administrative Law Judge: On
June 13, 14, 15, 16, 21, 22, and 23, 1972,1 I presided over a
hearing at Los Angeles, California, to try issues raised by a
complaint issued on April 25, 1972, on the basis of a charge
and an amended charge filed by Dennis Hamm, an individ-
ual, on January 13 and March 3, respectively, plus chal-
lenges to votes cast at , and objections to, an election held
on February 23, 1972.
The complaint alleges that Sports Coach Corporation of
America 2 discharged three employees because of their ac-
tivities on behalf of International Union, United Automo-
bile, Aerospace & Agricultural Implement Workers of
America, U.A.W.,3 and engaged in independent conduct
violative of Section 8(a)(1) of the National Labor Relations
Act, as amended (hereafter the Act).
The election issues concern both union and company
challenges to certain ballots and company objections to the
election.
The Company denied the material allegations of the com-
plaint. In the course of the hearing, the Company produced
evidence in support of its ballot challenges and election
objections ; the Union produced evidence in support of its
ballot challenges; and the General Counsel and the Union
1 Read 1972 hereafter after all date references omitting the year.
2 Hereafter called the Company or Sports Coach
3 Hereafter called U.A.W or the Union
SPORTS COACH CORPORATION OF AMERICA 147
produced evidence in support of the complaint allegations.
The parties also supported their respective defense posi-
tions.
The issues joined by the parties and litigated at the hear-
ing were: (1) whether the leadmen who allegedly committed
independent 8(a)(1) violations and the leadmen whose votes
were challenged by the Union were supervisors and agents
of the Company at times pertinent ; (2) whether the invento-
ry control clerk whose vote was challenged by the Union
was an office clerical employee excluded from the unit; (3)
whether the Company by the conduct of its supervisors and
agents committed independent violations of Section 8(a)(1)
of the Act; (4) whether Hamm, LeFleur, and Sawchuck
were discharged by the Company because of their union
activities or for cause ; and (5) whether Hamm and LeFleur
were agents and representatives of the Union engaging in
electioneering in the voting area at the time the election was
conducted.
The parties appeared by counsel at the hearing and were
afforded full opportunity to introduce evidence, examine
and cross-examine witnesses , argue, and file briefs. Briefs
have been received from the General Counsel, the Union,
and the Company.
Based on my review of the entire record, observation of
the witnesses , perusal of the briefs and research , I enter the
following:
FINDINGS OF FACT
The Union's campaign to organize the Company's em-
ployees commenced with a December 1971 contact between
union representatives and company employees and culmi-
nated in a petition for certification filed by the Union in
Case 31-RC-1954 on January 14 and charges filed by em-
ployee Hamm the previous day, January 13. The major
union organizational effort occurred between January 6-12,
as did the alleged discriminatory discharges and alleged
independent violations of Section 8(a)(1) of the Act.
The complaint alleges that three employees were dis-
charged on January 12 because of their activities on behalf
of the Union,5 and that various alleged supervisors commit-
ted numerous independent violations of Section 8(a)(1) of
the Act between January 6-14.
An agreement for a consent election was executed by the
parties and an election was conducted on February 23. The
Union challenged the votes of 10 leadmen and an inventory
control clerk on the ground they were supervisors and an
office clerical employee excluded from the unit. The Com-
pany challenged the votes of two alleged discriminatorily
discharged employees, Hamm and LeFleur, on the ground
they were not employees. The Company objected to the
election on the ground Hamm and LeFleur , as agents and
representatives of the Union, campaigned in the voting area
while the employees were casting their ballots.
I shall first consider the issue of whether the 10 leadmen
figuring in the union ballot challenge and alleged indepen-
dent 8 (a)(1) violations were supervisors and agents of the
Company at pertinent times.
I JURISDICTION AND LABOR ORGANIZATION
The complaint alleges , the answer admits, and I find that
the Company at all times material was an employer engaged
in commerce in a business affecting commerce and the
Union was a labor organization , as those terms are defined
in Section 2(2), (5), (6), and (7) of the Act.
11 THE ALLEGED UNFAIR LABOR PRACTICES
AND ELECTION ISSUES
A. Background
At times material to this proceeding, the Company was
engaged in the production of motor coaches . Its main plant
was located on Independence Avenue in Chatsworth, Cali-
fornia, and it conducted subsidiary operations in an adja-
cent building (hereafter called the B & M building) and
another building approximately 2 miles distant (hereafter
called the Canoga Avenue building). It employed approxi-
mately 120 persons in 13 departments, with each depart-
ment headed by a leadman. The departments were machine
shop, weld shop, foam, fiberglass, shell installation, cabinet
fabrication, cabinet installation , electrical installation,
plumbing installation , trim installation , final detail , warran-
ty, and stockroom. Overall supervision of the operations at
the three locations was exercised by William Mathews, pro-
duction manager , and the assistant production manager, Al
Dowd.'
4 The complaint alleged , the answer admitted , and I find that at all times
pertinent Mathews and Dowd were supervisors and agents of the Company
B. The Leadman-Supervisor Issue
The complaint alleges , inter alia, that Leadmen Blye,
Egge, Thackrey, Vann, and Whitcomb committed indepen-
dent violations of Section 8(a)(1) of the Act. In the course
of the February 23 election, the Union challenged the votes
of the five leadmen just named , as well as votes cast by
Leadmen Garcia, Howard, Madvig, Scolovino, and Shep-
herd, on the ground the 10 leadmen just named were super-
visors within the meaning of the Act.
These 10 leadmen share certain common characteristics
as distinguished from other employees within their depart-
ments.6
They are paid a weekly salary plus a bonus calculated on
the number of coaches over a given quota produced each
week. Employees within their departments are paid an hour-
ly rate and do not receive any bonus.
The 10 leadmen do not receive any overtime pay, though
they regularly work 50-70 hours per week; the employees in
their departments are paid time and a half for all hours
worked over 40 hours within the workweek.
The 10 leadmen do not punch timeclocks, while the em-
ployees in their departments do.
The 10 leadmen attend preshift supervisory meetings
acting on its behalf within the meaning of the Act.
5 Dennis Hamm, Daniel LeFleur , Nick Sawchuck , Randy or Mile Fields,
and Guillermo Arce were discharged on January 12. Fields was reinstated
the next day, January 13. Mathews testified without contradiction that Arce's
file contained numerous warning notices and he was fired for cause; this was
not contested either by the General Counsel or the Union.
6 The following findings are based on mutually corroborative testimony of
both company and employee witnesses.
148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
each day, at which problems concerning personnel, produc-
tion , material , etc., are discussed , plans developed, and
work allocated for the day. The department employees do
not attend such meetings and report at the regularly sched-
uled shift starting time.
The 10 leadmen assign and direct the work of the employ-
ees in their departments ; change their job assignments;
grant or deny their requests for time off; okay their
omissions from timecards ; and tally their timecards before
turning them in to the payroll department.
The 10 leadmen train and test new employees , set the
departmental work pace , inspect the work when it is com-
pleted, and either okay it or have it replaced or reworked.
The 10 leadmen are consulted by higher management and
their recommendations are considered with regard to raises,
transfers , promotions , hires , fires , or discipline within their
departments.
The 10 leadmen do not spend all their time performing
physical labor within the department, but rather spend
varying times ranging up to 100 percent on some days lead-
ing and directing the work of the employees in their depart-
ments.
The 10 leadmen receive the gripes of the employees with-
in their departments and attempt to resolve them ; the de-
partment employees are instructed to report to their
leadmen when late, when they note paycheck errors, when
they note unsafe conditions , and when they wish to request
a raise , transfer , vacation, sick leave, early leave , or the like.
The 10 leadmen authorize overtime for the department
employees, check their toolboxes for possession of company
tools, and have the sole responsibility for checking out all
tools , supplies , and materials utilized in their respective de-
partments.
The 10 leadmen prepare daily and weekly reports setting
forth the number of hours worked by all the employees in
their departments , as well as individual records of the num-
ber of hours worked by each employee within each depart-
ment.
It is the Company's contention that the entire wotk force
in all 13 departments at all three locations is supervised by
two full-time supervisors, namely, William Mathews and Al
Dowd, with an occasional assist from R. Spar ,7 chairman
of the Company's board of directors, and other front office
people.8 The evidence discloses that the weld and paint
shops, located in the B & M building approximately 150 feet
from the main plant, are rarely visited by Mathews and
Dowd. The same situation pertains to the foam and fiber-
glass departments which are located in the Canoga Avenue
building , approximately 2 miles from the main plant.
While not determinative , it is significant that the employ-
ee handbooks distributed by the Company to all employees
describe leadmen as supervisors and that, in several instan-
ces, leadmen have signed company forms in the spaces re-
served for supervisor signatures.
7 The complaint alleged , the answer admitted , and I find that R Spar was
a supervisor and agent of the Company acting on its behalf at all pertinent
times.
8 D Spar, the Company's president , Jerry Ziegler, the Company's mar-
keting services (sales) manager, and other top management , whom I also find
to be supervisors and agents of the Company acting on its behalf at all
pertinent times
The Company points out that one of the leadmen is paid
an hourly rate and receives time and a half for all hours
worked over 40 hours and contends that the salary-bonus-
no overtime plan governing the balance of the supervisors
is optional. The leadman in question, Bartlett, testified that
the Company attempted to place him on the salary-bonus-
no overtime plan in January but he refused to go on that
plan, stating he would go back as a regular welder rather
than go under the plan, since it meant a reduction in his
income. Faced with this opposition, the Company contin-
ued him at his hourly rate with time and a half for all
overtime hours.
The Company further contends that the work of the lead-
men in leading and directing the work of the employees in
their department is routine and requires no independent
judgment. It is clear, however, from the testimony of the
leadmen, that an expert knowledge of the work of their
departments is necessary in order to inspect the completed
work and either okay it or order it to be replaced or re-
worked. Similar discretion is exercised in the assignment
and reassignment of employees, the coordination of their
work, scheduling work, handling employee gripes and re-
quests for time off, verifying time worked (not punched on
timecards), ordering materials, supplies, tools, etc., making
recommendations or giving advice to higher management
concerning raises, promotions, transfers, discipline, etc.
While Mathews made the final decision with regard to these
matters, it is clear that substantial weight was accorded to
the judgment of the leadmen.
The definition of supervisor in Section 2(11) of the Act
includes persons having authority in the interest of the em-
ployer to responsibly direct and assign other employees in
the performance of their work, to adjust their grievances,
and to effectively recommend action, if in connection with
the exercise of that authority independent judgment is exer-
cised.
An analysis of the foregoing facts militates a finding that
the 10 leadmen here concerned were supervisors within the
meaning of the Act at times pertinent. Not only did they
exercise authority to assign and direct the work of the em-
ployees in their department (in many instances with little or
no direction or contact with Mathews or Dowd), but also
it is clear they had a much closer community of interest with
management than with the employees in their depart-
ments-as evidenced by their separate method of pay, their
preshift meetings with higher supervision to plan and sched-
ule production and meet the problems arising in that pro-
cess, their failure to punch timeclocks and duty to work
longer hours than the employees in their departments,9 with
no overtime, and their role in passing on employee gripes,
requests, reports, etc. Under the above facts and in view of
a company work force of approximately 120 employees in
13 departments at three locations, I find and conclude that
the preponderance of the evidence establishes that the 10
leadmen in question constituted the Company's first line of
supervision and I therefore find and conclude that Leadmen
Blye, Egge, Garcia, Howard, Madvig, Scolavino, Shepherd,
Thackrey, Vann, and Whitcomb at all times pertinent were
9 The leadmen were required to attend a meeting with higher management
prior to shift starting time and to report to final detail to clear any defects
in the coaches there at or near shift closing time
SPORTS COACH CORPORATION OF AMERICA 149
supervisors and agents of the Company acting on its behalf.
C. The Inventory Control Clerk Issue
The Union challenged the ballot cast by Kelly Cole, the
Company's inventory control clerk on the payroll eligibility
date, on the ground Cole was an office clerical employee.
Cole testified without contradiction that at times perti-
nent he was an hourly rated employee, punched a timeclock,
wore the same type of clothing as the unit employees (slacks
or jeans and t-shirt or sport shirt), and spent almost all of
his time working in the production and stockroom area of
the main plant; that his superiors were Gene Thomas, the
Company's purchasing agent, and Gerry Schwartz, the
Company's vice president, product development; that the
Company maintained a continuous inventory system, which
required that he pick up inventory sheets daily at the pur-
chasing office covering several departments, count and re-
cord the supplies and materials on hand in such
departments , and record same and turn the sheets in to his
superior; and that he also moved supplies and materials
between and to departments and from time to time assisted
in unloading trucks when the dock was full. A small and
irregular portion of his time was spent assisting accountants
at periodic audits and processing employee purchases from
company stock. He testified that he at no time gave orders
or directions to other employees, hired or fired employees,
or exercised any of the other normal indicia of a supervisory
position.
The unit in which the election was held consisted of "All
production and maintenance employees, including shipping
and receiving employees at the Employer's plants located at
9134 Independence Avenue and 10155 Canoga Avenue,
Chatsworth, California; excluding all other employees in-
cluding office clerical, professional employees, guards and
supervisors as defined in the Act."
On the basis of the foregoing testimony, which I credit,
I find that Cole did not exercise any supervisory functions
at times pertinent and was not a supervisor within the
meaning of the Act. I further find that inasmuch as he spent
the vast majority of his time working in close physical prox-
imity to and among the production and stockroom employ-
ees within the unit specified heretofore , under the same
wage system, hours, and conditions, he has a closer commu-
nity of interest to the Company's production and mainte-
nance and stockroom employees than to the Company's
office clerical employees, who worked in a physically sep-
arate area which was only visited by Cole from time to time
for short periods.
D. The Alleged Independent Violations of
Section 8(a)(1) of the Act
1. The alleged January 6 violation
Paragraph 8 of the complaint alleges that on January 6
the Company by D. Spar, Mathews, and Blye engaged in
surveillance , or gave the impression they were engaging in
surveillance, of the employees' union activities, and thereby
violated Section 8 (a)(1) of the Act.
The record discloses that Hamm arranged a meeting be-
tween Union Organizer Karlin and several employees at
Harvey's Bowling Alley near the plant on the evening of
January 6. Hamm tried to get one employee from each
department to attend . Hamm did not attend himself. Em-
ployees LeFleur, Blackstone , Ostrow , McCue , and Morris
arrived at the bowling alley at approximately 7 p.m. They
noted the presence of Supervisor Blye in the bar area with
two employees in his department , Prevad and Needham.
They briefly joined Blye and his companions for a while and
had a few words with them. Blye asked McCue what he and
the others were doing there and McCue replied they were
out on the town. After leaving Blye, LeFleur went to make
a telephone call and noted Blye at a phone . Blye hung up
seeing LeFleur and asked LeFleur why he and his compan-
ions were there . LeFleur replied they were going to shoot
pool.
The five employees were not acquainted with Karlin, but
made contact with him (after leaving Blye) when Karlin
approached Blackstone from the restaurant area and asked
him if he was from Sports Coach. Karlin was advised of
Blye's presence and they all decided to leave the bowling
area and meet elsewhere. While Karlin and the employees
were in the parking lot, they saw D. Spar and Mathews
enter the bowling alley.
D. Spar and Mathews joined Blye and his two compan-
ions on entering the bar area and stayed there for some time,
in the course of which D . Spar bought two rounds of drinks.
While conversing, Blye told D . Spar and Mathews of the
presence and the identity of the employees he had seen
earlier. While D . Spar and Mathews were still in the bar
area, Sawchuck was paged on the loudspeaker at the bowl-
ing alley (LeFleur was trying to call him there to have him
come to another location for the meeting-Sawchuck had
been scheduled to attend the meeting).
Mathews conceded he suspected the employees were
there for a union meeting.
It is uncontradicted that Blye, D . Spar, and Mathews
often stopped at the bowling alley, its bar, and restaurant
for drinks and food. Blye testified he asked McCue and
LeFleur what they were doing there because he was curious,
never having seen them in the bar at Harvey's before.
On these facts , I find no violation of Section 8(a)(1) of the
Act occurred. Blye regularly frequented Harvey's bar; he
was there for some time before the five employees arrived
to meet with Karlin. Thus, there is no indication that Blye
was there for the purpose either of exercising a surveillance
over the planned meeting of the five employees with Karlin
or that he attempted to conduct a surveillance (having cred-
ited Blye's statement he was only curious when he asked
McCue why he was there). Neither is there any evidence
that D. Spar and Mathews arrived at the bar after the five
employees and Karlin left for the purpose of ascertaining
either the identity of the five employees or the purpose for
which they were there; D. Spar and Mathews frequently
visited the bar and mingled with the employees there after
leaving the plant.
That evening their practice was no different; D. Spar and
Mathews joined Blye and his companions , exchanged
rounds of drinks, conversed , and drank together for some
time thereafter , as they had many times in the past.
Any impression the employees received that they were
150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
under surveillance was purely personal on their part.
I therefore shall recommend that paragraph 8 of the com-
plaint be dismissed.
2. The alleged January 7 violation
Paragraph 9 of the complaint alleges that Mathews, in
the presence of Dowd, interrogated an employee regarding
his union activities and support and the union activities and
support of other employees ; he threatened to layoff all of
the Company's employees if they supported the Union or
selected it as their bargaining representative ; he threatened
to contract out the Company's work if the employees select-
ed the Union as their bargaining representative; and he
solicited employee grievances for the purpose of undermin-
ing employee support of the Union.
Mathews conceded that he called unit employee Ostrow
to his office on January 7. He stated that he did so because
his brother had informed him of the existence of employee
complaints and recommended that he talk to Ostrow about
them . Mathews further conceded that , in the course of the
conversation , he asked Ostrow to organize an employees'
grievance committee to see him regarding their complaints.
Ostrow testified that , in the course of the conversation,
Mathews interrogated him about the identity of the employ-
ees who attended the union meeting the previous evening;
Mathews stated he knew who was there , naming LeFleur
and McCue ; Mathews said he was going to fire a couple of
those at the meeting ; and Mathews finally asked Ostrow to
set up a meeting with the employees who had grievances.
Dowd was not called to testify in the course of the hear-
ing.
In view of the mutually corroborative testimony of Ma-
thews and Ostrow, I find that on January 7 Mathews indi-
cated his awareness that Ostrow was a union supporter and
asked Ostrow to form an employee grievance committee for
the purpose of bringing employee grievances to him for
resolution . I further find that neither Mathews nor Ostrow
testified to any threat of layoff or subcontracting work in
the event the employees supported or selected the Union as
their bargaining representative.
I credit Ostrow 's testimony that Mathews interrogated
him both to confirm the identity of several employees who
met with Karlin, as well as to learn the identity of any other
employees who may have joined the meeting after the em-
ployees left the bowling alley.
I further credit Ostrow's testimony that Mathews stated
he knew who had been in attendance at the bar the previous
evening, identifying LeFleur and McCue specifically, and
that he said he was going to fire a couple of those who
attended the meeting.
I therefore find that the Company by Mathews on Janu-
ary 7 did interrogate an employee , Ostrow , regarding his
union activities and support and the union activities and
support of other employees ; he threatened to discharge em-
ployees for supporting the Union ; and he solicited the for-
mation of an employee grievance committee for the purpose
of resolving employee complaints and thereby undermine
employee support of the Union. I further find that by such
interrogation , threat , and solicitation the Company violated
Section 8(a)(1) of the Act.
3. The alleged January 8 violation
Paragraph 10 of the complaint alleges that on January
8, at approximately 11:30 a.m., Mathews gave an employee
the impression he was maintaining a surveillance of the
employees ' union activities and again solicited employee
grievances for the purpose of undermining employees' sup-
port of the Union.
This incident is based on a conversation between Ma-
thews and employee LeFleur on the date in question.
LeFleur testified that he went to Mathews' office after
hearing from Ostrow that Mathews wanted employees who
were dissatisfied with the Company to form a committee
and bring their grievances to him; he asked Mathews if he
wanted to talk about the Union; Mathews replied he want-
ed to talk with all the employees; Mathews stated he knew
who was at the union meeting the previous evening; he
asked Mathews how he knew; Mathews replied he had
enough brown-noses to know and that he also knew of a
meeting scheduled for January 11; he (LeFleur) admitted he
was at the January 6 union meeting; and towards the end
of the meeting he asked Mathews for a raise , at which time
Mathews wrote LeFleur 's name down and said he would get
a raise.
Mathews testified he talked with LeFleur, but stated the
conversation was limited to a discussion of a raise for Le-
Fleur.
LeFleur's testimony is credited. His credited testimony
supports a finding that Mathews gave LeFleur the impres-
sion that the Company was maintaining a surveillance of its
employees ' union activities.
Mathews' response , however, to LeFleur's question con-
cerning whether he wanted to talk about the Union is am-
biguous, however, and does not support the complaint
allegation that Mathews solicited employee grievances for
the purposes of undermining union support.
Based on the foregoing , I shall recommend that para-
graph 10(b) of the complaint (dealing with the alleged solici-
tation) be dismissed.
With respect to paragraph 10(a) of the complaint, I find
and conclude that Mathews did give an employee, LeFleur,
the impression that the Company was maintaining a surveil-
lance of its employees ' union activities and thereby violated
Section 8(a)(1) of the Act.
4. The alleged January 12 violation by Egge
Paragraph 11 of the complaint alleges that on January
12, at approximately 9 a.m., Mathews gave employees the
impression that the Company was maintaining a surveil-
lance of its employees ' union activities.
Employee Sawchuck testified that on the date in question
he was soliciting employee support of the Union at the
plant. He testified he saw Mathews approach Leadman
Egge and talk to him . After Mathews left Egge, Sawchuck
approached Egge and asked what Mathews wanted. Egge
replied that Mathews had asked him if he had seen anyone
passing out union authorization cards on the lunch hour.
Neither Egge nor Mathews testified concerning the inci-
dent in question.
Sawchuck 's uncontradicted testimony is credited. I find
SPORTS COACH CORPORATION OF AMERICA 151
that the Company by Egge, a supervisor, gave an employee,
Sawchuck, the impression that the Company was maintain-
ing a surveillance of its employees' union activities by virtue
of the conversational exchange between Egge and Saw-
chuck detailed above and thereby violated Section 8(a)(1)
of the Act.10
5. The alleged January 12 violation by Whitcomb
Paragraphs 12 and 13 of the complaint allege that on
January 12, at approximately 4:15, Leadman Whitcomb
interrogated an employee regarding his union activities and
support and, further, that Leadman Whitcomb and Assis-
tant Production Manager Dowd threatened employees with
discharge for engaging in union activities or support.
Employee McCue testified that on January 12, at approx-
imately 4:15, Leadman Whitcomb approached him and
asked him what he thought of the Union, to which he replied
that he had worked in both union and nonunion shops and
would work in either; McCue testified that he went on to
state he heard he was identified as a union supporter and
was scheduled to be fired, at which Whitcomb stated he
would check, left, went over and spoke to Dowd, came
back, and told McCue his name had been taken off the list
of those to be fired. McCue further testified Dowd then
approached and told McCue that Dowd had saved his job
and had taken his name off the list.
Whitcomb denied the remarks attributed to him (though
Mathews, testifying after Whitcomb, confirmed that Mc-
Cue's name was on a list of employees scheduled for dis-
charge on January 12, but that it was removed at Dowd's
request).
McCue's testimony is credited.
I find and conclude that on the date and at the time stated
Whitcomb interrogated McCue about his union sentiments.
It was McCue, however, and not Whitcomb or Dowd, who
stated that he (McCue) was scheduled to be discharged that
day for union activities.
I therefore find and conclude that the Company, by
Whitcomb, violated Section 8(a)(1) of the Act on the date
and at the time in question by questioning employee McCue
concerning his union sentiments. I further find and con-
clude that paragraph 13 of the complaint is not supported
by the evidence and will recommend that it be dismissed.
6. The alleged January 12 violation by Egge
Paragraph 14 of the complaint alleges that the Company
on January 12 by Leadman Egge violated Section 8 (a)(1) of
the Act by threatening employees with discharge for engag-
ing in union activities.
Employee Blackstone testified that he heard Leadman
Egge on the date in question direct employees Hamm and
LeFleur to report to Mathews' office and asked Egge why
the two had been called to Mathews ' office , to which Egge
10 While par I l of the complaint alleges it was Mathews who gave the
impression the Company was maintaining a surveillance of its employees'
union activities, the evidence discloses that it was Egge who gave that impres-
sion. Since the Company had ample opportunity to refute the matter in
question , I shall nevertheless find a violation.
replied he didn't know. Blackstone testified he then stated
the employees probably were going to be fired, to which
Egge replied, probably. Blackstone testified he next com-
mented that the employees probably were going to be dis-
charged because of their union activities, to which Egge
replied that he guessed so, it was too bad, Hamm was a good
worker.
Egge testified he did not recall the conversation.
Crediting Blackstone's testimony, Egge's comments still
do not rise to the status of a threat. It was Blackstone who
commented that Hamm and LeFleur were called in to be
fired and were probably to be fired because of their union
activities. Egge's rejoinders did not constitute threats to
discharge employees because of their union activities. I
therefore find that the evidence fails to support paragraph
14 of the complaint and shall recommend that it be dis-
missed.
7. The alleged January 13 violation
by D. Spar, Mathews, Dowd,
Vann, and Blye
Paragraph 15 of the complaint alleges that on January
13 D. Spar, Mathews, Dowd, Vann, and Blye engaged in
surveillance of employees' union activities or gave the im-
pression of so engaging.
It is undisputed that at the end of the work shift on
January 13 Hamm, LeFleur, Sawchuck, Fields, and two
union officials passed out union leaflets at the alley entrance
to the main plant. It is likewise undisputed that Mathews,
Dowd, Whitcomb, and Vann appeared and remained for a
period of time at the door of the plant at the time the
distribution was taking place, D. Spar appeared later, and
Blye appeared briefly.
Vann corroborated employee testimony that he wrote
down the names of employees who took leaflets from the
distributors, stating he limited his list to men in his depart-
ment. Employee Ostrow testified that, in a conversation
subsequent to the leaflet distribution, Vann told him he had
been instructed by higher management to note the names of
employees accepting union leaflets. Ostrow's testimony is
credited.
Mathews corroborated employee testimony that he wrote
down names, stating he limited his list to persons who were
distributing the leaflets.
Mathews also testified that he and the leadman were
there to check toolboxes, but there is no evidentiary support
they actually checked any toolboxes and it is noted many
employees left by another entrance to the plant where no
leadmen were posted.
I find that on January 13 at approximately 4:30-5 p.m.
the Company by Mathews and Vann gave the employees
leaving the plant the impression that they were engaged in
surveillance of their union activities and thereby violated
Section 8(a)(1) of the Act, dismissing any reference to D.
Spar, Dowd, and Blye with regard to this incident.
8. The alleged January 13 violation by Thackrey
Paragraph 16 of the complaint alleges that on January
13 Leadman Thackrey threatened employees with discharge
152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for refusing to bring grievances to the Company before
supporting the Union.
Employee McCue testified that on January 13 he told
Leadman Thackrey he had been on a January 12 discharge
list because of his union activities and that this was not
right. He testified that Thackrey replied he had been or-
dered by higher management to listen to employee conver-
sations to find out who supported the Union , to record their
names , and to turn them in and that he had turned in the
names of three men who were pushing the Union , closing
with the statement that , if he hadn 't turned in the three men,
he himself would have been fired.
Thackrey testified, but failed to refute McCue's testimo-
ny in any manner whatsoever.
McCue's testimony is credited. It fails, however, to sup-
port the allegations of paragraph 16 of the complaint, inas-
much as Thackrey's comments were limited to his personal
belief that he, a supervisor, was threatened with discharge,
and that such threat was present if he failed to maintain a
surveillance over employee union activities , not because
employees failed to bring grievances to the Company but
rather sought to resolve them by securing union representa-
tion . Thackrey's comments, however, did convey an impres-
sion that the Company was maintaining surveillance of its
employees ' union activities.
I therefore find that, while the evidence failed to support
the allegations of paragraph 16 of the complaint , the Com-
pany nevertheless on January 13 by Thackrey violated Sec-
tion 8(a)(1) of the Act by giving employee McCue the
impression that it was engaging in surveillance of its em-
ployees' union activities.'
9. The alleged January 13 violation
by Spar and Mathews
Paragraph 17 of the complaint alleges that on January
13 the Company by D. Spar and Mathews interrogated
employees concerning their union activities and support.
Employee Sawchuck testified that , while he was at the
rear of the plant distributing leaflets along with Hamm,
LeFleur, Fields, and two union officials, D. Spar appeared,
touched the union button he was wearing , and asked him
what he thought that was going to do for him, to which he
replied that he believed he was fired because Spar thought
he had organized the Union, to which Spar replied,
"Weren't you?" Sawchuck further testified that he re-
sponded by saying he was not organizing the Union at the
time Spar thought he was, with a response from Spar that
if the Union did not get in he might get his job back but
otherwise not.
D. Spar testified that while he did appear at the leaflet
distribution and directed Fields to get off company proper-
ty (the alley and a paved area between its edge and the back
wall of the Company's main plant are not marked off) and
engaged in a brief conversation with Sawchuck , the conver-
sation was limited to a demand from Sawchuck for the
reason for his firing and his rejoinder that Sawchuck was
fired for wandering around the plant too much instead of
11 The Company had ample opportunity to litigate this question but failed
to do so
doing his work.
The company and employee witnesses mutually corrobo-
rated testimony that Mathews and D. Spar invited Saw-
chuck, Hamm, LeFleur, and Fields into the plant after the
D. Spar-Sawchuck exchange and that all six went to the
plant's front office . It is further undisputed that, after a
short time had passed, Sawchuck left the plant and that
R. Spar later arrived. It is further established by corrobora-
tory testimony of both company and employee witnesses
that a full and frank discussion went on for some time over
problems at the plant which in part caused the employees
to seek union representation . Among problems mentioned
by Hamm , the employees ' spokesman , were crowded work-
ing conditions , inadequate ventilation , and a suggestion
that an employee suggestion box be installed to receive
gripes and recommendations for their solution . It is further
clear that in the course of the conversation Hamm told the
management representatives present that Fields had not
been an active union supporter , his wife was expecting a
baby, he needed the job, and many of the employees had
signed union cards because they thought Fields ' discharge
was unfair . Sometime after Hamm's statement to this effect,
Mathews took Fields out of the room, offered him rein-
statement, and he went back to work the following day.12
The company witnesses testified that reinstatement was
offered to Hamm and LeFleur, but declined. Hamm and
LeFleur testified that the only exchange which came
anywhere near an offer occurred when R . Spar asked if
Hamm and LeFleur still would need the Union if the Com-
pany resolved the problems Hamm recited and reinstated
Hamm and LeFleur , to which Hamm responded that he
believed the employees still would need union representa-
tion. This testimony by Hamm and LeFleur was corroborat-
ed in part by Fields and is credited.
In my judgment, the exchange between Sawchuck and
D. Spar at the back of the plant and the exchanges between
management and employee spokesmen thereafter did not
involve any coercive interrogation of the employees con-
cerning their union activities , but rather consisted of volun-
tary, full , and free exchanges at which the employees
volunteered information concerning problems which trou-
bled them and caused them to seek union representation.
I therefore find and conclude that the evidence fails to
support paragraph 17 of the complaint and shall recom-
mend that it be dismissed.
10. The alleged January 14 violation
Paragraph 18 of the complaint alleges that on January
14 R. Spar solicited employee grievances and solicited em-
ployees to refrain from union support, for the purpose of
undermining employee support of the Union.
It is undisputed that R. Spar addressed a meeting of all
the employees within the main plant during working hours
on January 14 and stated that the Company did not have
enough money to purify the air of fiberglass particles, pro-
vide a cooling system, and increase wages if it was to remain
competitive. It is likewise undisputed that R. Spar an-
12 Mathews denied that the offer of reinstatement was made in a separate
interview The testimony of Fields , Hamm , and LeFleur to the contrary is
credited
SPORTS COACH CORPORATION OF AMERICA 153
nounced that the Company was installing a suggestion box
wherein the employees might place any grievances they
wished to bring to the Company's attention (Spar conceded
that the installation of the suggestion box resulted from his
conversation with Hamm the previous evening ). No plea to
refrain from union support was uttered.
I do not find the statements made by R. Spar constitute
either a promise of benefit or threat of discipline . Neither
does the adoption of Hamm's suggestion , that the Company
install a suggestion box so that employees might place their
gripes or grievances in it (plus any suggested solutions there-
to), rise to the status of a solicitation of employee grievances
for the purpose of undermining employee support of the
Union.
I therefore find that the evidence does not support para-
graph 18 of the complaint and shall recommend that it be
dismissed.
E. The Alleged Violations of Section 8(a)(3) of the Act
1. The union activities of Hamm,
LeFleur, and Sawchuck
The complaint alleges that Hamm, LeFleur, and Saw-
chuck were discharged because of their support of the
Union.
Hamm was the leading union supporter among the
Company's employees. LeFleur and Sawchuck were active
union supporters during its organizing campaign.
Hamm made the initial contact with the Union in late
December 1971 and set up the first (January 6) meeting
between a union representative and company employees at
Harvey's Bar (that meeting has been discussed in earlier
findings). LeFleur and Sawchuck attended the January 6
meeting and LeFleur signed a union authorization card at
that time. Hamm and LeFleur attended the second union
meeting, on January 11, and Hamm signed a union authori-
zation card at that time . Both Hamm and LeFleur solicited
other employees to sign union authorization cards at the
January 11 meeting.
On January 12, at the plant, Hamm, LeFleur, and Saw-
chuck solicited other employees to sign union authorization
cards . Sawchuck signed a union authorization card on that
date.
Just prior to the end of the shift on January 12, all three-
Hamm, LeFleur and Sawchuck-were discharged. No rea-
son was stated for the discharges.
2. Company hostility to union organization of its
employees , awareness of the union organizational
campaign , and awareness of the identity of the
union activists
D. Spar testified to his opposition to unionization of the
Company's employees. Numerous acts of company surveil-
lance of its employees' union activities, threats of discharge,
and attempts to form an employee grievance committee to
forestall union organization have been found heretofore.
The Company was aware that Hamm, LeFleur, and Saw-
chuck were union activists prior to their discharge. After
making his initial contact with the Union in late December
1971, Hamm informed his leadman and supervisor, Egge,
that he had made contact with the Union and sought its
support in organizing the Company's employees . On Janu-
ary 6, Leadman and Supervisor Blye noted LeFleur's atten-
dance at the January 6 union meeting and reported that
attendance to D. Spar and Mathews . D. Spar was aware of
Sawchuck 's attendance (he heard Sawchuck paged on the
bowling alley 's public address system while meeting with
Blye on January 6). Mathews conceded that he heard ru-
mors of union organization among the Company 's employ-
ees prior to January 6 and suspected that Sawchuck and
LeFleur were attending a union meeting that evening. On
January 7, Mathews indicated his surveillance of the em-
ployees' union activities and awareness of LeFleur 's union
activities when he interrogated Ostrow regarding who (be-
sides Ostrow) was present at the January 6 union meeting,
naming LeFleur as one of the persons he knew was present.
In the course of his January 7 conversation with Ostrow,
Mathews threatened Ostrow that he was going to fire some
of the employees who attended the January 6 union meeting
and solicited Ostrow to form an employee grievance com-
mittee in order to stall the Union 's organizational cam-
paign.
On January 8, Mathews again confirmed the Company's
surveillance of its employees ' union activities and its knowl-
edge of the identity of the union activists in his conversation
with LeFleur.
On January 12, the activities of Supervisors Mathews,
Dowd, and Egge also confirm the Company's surveillance
of its employees' union activities , and particularly the ef-
forts that day within the plant by Hamm , LeFleur, and
Sawchuck to persuade other employees to sign union au-
thorization cards.13
3. The Company's reasons for discharging
Hamm, LeFleur, and Sawchuck
The Company's witnesses , including Mathews, conceded
that Hamm was an outstanding worker, capable of perform-
ing practically any task to which he was assigned. He
worked primarily under Egge in the period immediately
preceding his discharge , in cabinet installation. He was pro-
moted approximately a week or 10 days prior to his dis-
charge to the position of floater, the highest paid job in the
bargaining unit , and came back to cabinet installation at his
own request. The company representatives who informed
Hamm of his discharge on January 12 failed to respond to
his request for information as to the reason for his discharge
or his accusation that it was because of his union activities.
At the hearing, the reasons advanced by the Company for
Hamm's discharge were : (1) his involvement in a minor
verbal exchange with Leadman and Supervisor Vann the
previous October, and (2) because Hamm was observed on
January 12 away from his work place talking to other em-
ployees.
It was conceded that LeFleur was an average worker. The
reasons given at the hearing for the Company 's discharge of
LeFleur was: (1) his alleged failure to put sufficient effort
13 Egge also confirmed his knowledge that Hamm was the leading union
supporter among the Company's employees.
154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
into his work, and (2) because he also was observed talking
to other employees away from his workplace on January 12.
As far as Sawchuck is concerned, it was conceded that
Sawchuck was a good worker when he worked, but that he
had tendency to "wander" around the plant. He likewise
was observed "wandering" away from his workplace on
January 12.
His alleged "wandering" was the ground given for his
discharge at the hearing.
Hamm and LeFleur received no warnings prior to their
discharge concerning their work performance, talking, etc.;
no order or direction was given to them on January 12,
either by their leadman, Egge, or any other supervisor,
about being away from their workplace or talking with other
employees. While Supervisor Dowd was not called to testi-
fy, Hamm and LeFleur testified that Dowd contacted them
during the afternoon of January 12, asked them what they
were talking about and instructed them to desist from fur-
ther conversation. This instance does not support the
Company's position, however, since Mathews testified the
decision to discharge Hamm, LeFleur, and Sawchuck was
made in the morning and confirmed by D. Spar at lunch.
It is further noted that Hamm was promoted by the Com-
pany to the position of floater on January 6, only 6 days
prior to his discharge, that on January 8 Mathews promised
LeFleur a wage increase, and that Sawchuck received only
one warning prior to his discharge, wherein Mathews and
Dowd spoke to Sawchuck about wandering away from his
job (operation of a saw), to which Sawchuck replied that it
was necessary for him to leave the saw from time to time
otherwise he became a bit mesmerized and was afraid of an
accident, after which Mathews and Dowd stated they would
see to it that he received more variety of work assignments.
It is also noted that, following his discharge and while he
was distributing leaflets outside the plant on January 13,
D. Spar responded to Sawchuck's statement that he had
been fired for engaging in union activities with the comment
"Well, didn't you."
Finally, in the January 13 conversation between R. Spar,
D. Spar, Mathews, Hamm, LeFleur, and Fields, R. Spar
intimated that their support of the Union figured in the
discharge of Hamm and LeFleur when he asked them
whether they would drop their union support if the Compa-
ny rectified the matters they complained of in the conversa-
tion that evening and reinstated them.
4. Analysis and conclusions
One of the best means for inhibiting employee support
of a union , in the course of a union organizational cam-
paign , is to discharge the Union's leading supporters among
the Company's employees.
In view of the Company's knowledge of and hostility to
the organization of its employees , its knowledge that
Hamm , LeFleur , and Sawchuck were leading union sup-
porters , its threat to discharge some of such supporters, its
surveillance of the union activities of its employees (in
which Hamm, Sawchuck, and LeFleur engaged on the day
of their discharge), when coupled with the weak nature of
the reasons belatedly advanced by the Company for the
discharges of the three, I find that the Company discharged
Hamm , LeFleur , and Sawchuck because of their union ac-
tivities and not for any alleged deficiencies in their work
performance or conduct. I further find that by so dis-
charging Hamm, LeFleur, and Sawchuck, the Company
violated Section 8(axl) and (3) of the Act.
F. The Company's Objections to the Election
Following the February 23 election, the Company filed
timely objections thereto on the grounds Hamm and Le-
Fleur, as agents and representatives of the Union, engaged
in electioneering activities on behalf of the Union in the
election area and, further , that Hamm and LeFleur were
receiving financial assistance from the Union . On these
grounds , the Company seeks to set aside the election.
1. The alleged electioneering
Immediately prior to the election , Union Representative
Karlin and Company Attorney Pinhey conferred. Karlin
showed Pinhey a list containing the names of 10 leadmen
and advised Pinhey he intended to challenge their votes on
the ground they were supervisors. Pinney asked whether
Hamm , LeFleur , and Sawchuck were going to cast a ballot
in the election and was informed that Karlin was sure of
Hamm and LeFleur, but not Sawchuck. Pinhey indicated
the Company intended to challenge the votes of Hamm,
LeFleur, and Sawchuck. The two then agreed that to facil-
itate the election the leadmen on Karlin's list and Hamm,
LeFleur, and Sawchuck would be requested to vote ahead
of the other employees. Karlin subsequently talked to Le-
Fleur, who was present in the area , and learned that Hamm
was not there yet. He instructed LeFleur to wait for Hamm
and to tell Hamm on his arrival that they were to vote and
leave the voting area immediately thereafter . Pinhey in-
structed the leadmen to vote as soon as the polls opened.
LeFleur entered the plant area near the desk where the
ballots were passed out while the leadmen were voting,
awaiting Hamm 's arrival . Several groups of employees gath-
ered in the area , waiting for the leadmen to complete voting.
LeFleur joined one of the groups and conversed with the
men in that group.
When Hamm arrived (shortly after II a.m., due to his
belief the polls opened at 11 a.m.-the polls actually opened
at 10 a.m.) he joined LeFleur and the two went to the end
of the voting line . They exchanged words with employees
who passed them by , conversed with one another, and con-
versed with employees near them in line. All the employee
witnesses who testified concerning the events at the time
Hamm and LeFleur were present in the plant during the
voting indicated that the employees generally were convers-
ing while waiting to vote . Hamm and LeFleur conceded
they answered questions concerning their activities and the
Union's chances in the election, etc.
After casting their ballots, Hamm and LeFleur left the
voting area and went to Hamm's car in an adjacent parking
lot.
When the vote was completed, the two were invited by
Union Representatives Karlin and Marenello to come to
the Company's offices at the front of the plant, where the
ballots were to be counted . The four men walked through
SPORTS COACH CORPORATION OF AMERICA
the plant to the office area. After their arrival, Hamm and
LeFleur were instructed by Karlin to leave due to company
objections to their presence. They left and remained in the
parking lot thereafter.
Employees McIntyre, Thomas, Butorac, and Bonan cor-
roborated LeFleur's testimony concerning his presence dur-
ing the early period when balloting was conducted in the
vicinity of the table where ballots were distributed, among
a group of employees engaged in conversation , but testified
that none of them heard what LeFleur had to say; while
McIntyre testified he heard Hamm make disparaging re-
marks concerning the Company from behind him while
McIntyre was in the voting line, he was unable to establish
to whom Hamm 's remarks were addressed or what prompt-
ed them.
2. The alleged agency and pay status
Hamm, LeFleur, and Karlin testified without contra-
diction that the Union neither promised nor paid compen-
sation to Hamm and LeFleur prior to their January 12
discharge and their distribution of union literature and oth-
er efforts to secure union support from other company em-
ployees was volunteer work undertaken without expectation
of payment therefor.
On learning of their ineligibility for unemployment com-
pensation, on February 4, Karlin applied to the Internation-
al Union for the award of weekly strike or victimization
benefits to Hamm and LeFleur, with the proviso they would
repay any benefits granted in the event they secured back-
pay for weeks in which such benefits were paid. The appli-
cation was granted and on February 24 Hamm and LeFleur
received their first strike or victimization benefits. Hamm as
a married man with dependents received $40 per week and
LeFleur as a single man received $30 per week.
G. Disposition of the Election Issues
In his order referring the election issues to me, the Re-
gional Director for Region 31 directed that, after my hear-
ing, ruling, and deciding thereupon, Case 31-RC-1954 shall
be severed and transferred to him for further proceedings.
Based on the foregoing findings that Leadmen Blye,
Egge, Garcia, Howard, Madvig, Scolovino, Shepherd,
Thackrey, Vann, and Whitcomb were supervisors, I find
and conclude that the Union's challenges to their ballots
have merit and should be sustained.
Based on the findings set out heretofore that the invento-
ry control clerk, Cole, was not properly excludable from the
unit as an office clerical employee , I find and conclude that
the Union's challenge to the ballot cast by Cole does not
have merit and should be overruled.
On the basis of the findings set out heretofore that Hamm
and LeFleur were discriminatorily discharged in violation
of Section 8(a)(1) and (3) of the Act, I find and conclude
that the Company's challenge to their ballots lacks merit
and should be overruled.
Based on the findings above that Hamm and LeFleur
were not agents and representatives receiving compensation
from the Union for services and that they did not engage in
electioneering during the time they were in the election area,
155
I find and conclude that the Company's objections to the
election lack merit and should be dismissed.
In conformance with the order of the Regional Director,
Case 31-RC-1954 is herewith severed from Case 31-
CA-2807 and referred to the Regional Director for further
proceedings consonant with the rulings , findings , and con-
clusions herein concerning the election issues.
CONCLUSIONS OF LAW
1. At all times pertinent the Company was an employer
engaged in commerce in a business affecting commerce and
the Union was a labor organization as those terms are de-
fined in Section 2(2), (5), (6), and (7) of the Act.
2. At all times pertinent Leadmen Blye, Egge, Thackrey,
Vann, and Whitcomb were supervisors and agents of the
Company acting in its behalf.
3. The Company violated Section 8(a)(1) of the Act:
(a) By Mathews ' interrogation of Ostrow in the presence
of Dowd on January 7 concerning Ostrow 's union activities
and support and the union activities and support of other
employees; by Mathews' threat to discharge some of the
employees who attended a union meeting on January 6; and
by Mathews' solicitation of Ostrow to form an employee
grievance committee in order to undermine the employees'
support of the Union.
(b) By Mathews' January 8 conversation with LeFleur in
which he gave LeFleur the impression the Company was
maintaining a surveillance of its employees' union activities.
(c) By Egge 's January 12 remarks to Sawchuck wherein
he gave Sawchuck the impression that the Company by
Mathews was engaging in a surveillance of its employees'
union activities.
(d) By Whitcomb's January 12 interrogation of McCue
concerning his union activities and support.
(e) By giving the impression the Company was maintain-
ing a surveillance of its employees ' union activities through
the presence of Mathews and Vann at the back of the plant
on January 13 while the Union was distributing leaflets
there , Mathews' notation of the names of the employees
passing out such leaflets, and Vann's notation of the names
of employees receiving such leaflets.
(f) By Thackrey's January 13 comments to McCue
wherein Thackrey gave McCue the impression the Compa-
ny was engaged in a surveillance of its employees' union
activities.
4. The Company violated Section 8(a)(1) and (3) of the
Act by its January 12 discharge of Hamm, LeFleur, and
Sawchuck for engaging in union activities and support.
5. The Company did not violate the Act other than spec-
ified above.
6. The unfair labor practices herein specified affect com-
merce as defined in the Act.
THE REMEDY
It having been found that the Company engaged in un-
fair labor practices in violation of Section 8(a)(1) and (3) of
the Act, I shall recommend that the Company be directed
to cease and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act.
156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the foregoing findings of facts, conclu-
sions of law, and the entire record, and pursuant to Section
10(c) of the Act, I issue the following recommended: 16
ORDER
Sports Coach Corporation of America, Chatsworth, Cali-
fornia, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating its employees concerning their union
activities and the union activities of other employees.
(b) Threatening its employees with discharge for engag-
ing in union activities:.
(c) Soliciting its employees to form a grievance commit-
tee in order to undermine its employees' support of the
Union. a ;
(d) Conveying to its employees the impression that the
Company is engaging in surveillance of its employees' union
activities.
(e) Discharging its employees for engaging in union ac-
tivities.
2. Take the following affirmative action:
(a) Offer to Dennis Hamm, Daniel LeFleur, and Nick
Sawchuck immediate and full reinstatement 15 to their for-
14 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations , be adopted by the Board and become its
findings , conclusions , and Order, and all objections thereto shall be deemed
wavied for all purposes.
13 On Thursday, June 22, during the hearing, Mathews offered , and Hamm
and LeFleur accepted , reinstatement to the Company's employ , effective
Monday, June 26. A similar offer was later extended to Sawchuck The
parties later advised me that Hamm and LeFleur reported for work on
Monday, June 26, and that Sawchuck did not report for work on that date
The General Counsel and the Charging Party contend , however, that Hamm
and LeFleur were not reinstated to the same or substantially equivalent
employment , while the Company contends that they were so assigned . I shall
mer or substantially equivalent positions, without prejudice
to their seniority and other rights and privileges, and make
them whole for any loss of pay they may have suffered by
reason of discrimination against them for the period begin-
ning January 12, 1972, and ending the date they are offered
the aforesaid reinstatement , computed in the manner set out
in F. W. Woolworth Company, 90 NLRB 289, together with
interest on the amount so computed that the rate of 6 per-
cent per annum as set out in Isis Plumbing & Heating Co.,
138 NLRB 716;
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all other records necessary to
determine the amount of backpay due under this recom-
mended Order.
(c) Post at its places of business in Chatsworth, Califor-
nia, where the Company has unit employees (the main
plant, Canoga Avenue building and B & M building), copies
of the attached notice marked "Appendix." 16 Copies of the
notice on forms provided by the Regional Director for Re-
gion 31, shall be signed by an authorized representative of
the Company, posted by it immediately upon receipt there-
of, and maintained for 60 consecutive days thereafter, in
conspicuous places, where notices to employees are custom-
arily posted. Reasonable steps shall be taken by the Compa-
ny to ensure that the notices are not altered, defaced, or
covered by any other materials.
(d) Notify the Regional Director for Region 31, in writ-
ing, within 20 days from the date of this Decision, what
steps the Company has taken to comply herewith.
leave this issue to the Board 's enforcement machinery for determination.
16 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board " shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."