Sports Coach Corp. of America

National Labor Relations Board - Board Decisions

Jun 27, 1975

218 N.L.R.B. 992 (N.L.R.B. 1975)

992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sports . Coach Corporation of America and Dennis
Hamm. Case 31-CA-4531
June 27, 1975
DECISION
STATEMENT OF THE CASE
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On April 11, 1975, Administrative Law Judge
Earldean V. S. Robbins issued the attached Decision
in this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and the
Respondent filed a brief in opposition thereto.
'Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, fmdings,
and conclusions of the Administrative Law Judge
and to adopt her recommended Order.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint be dismissed in its
entirety.
I The Administrative Law Judge found it unnecessary to reach the
factual and legal issues involved with respect to whether Respondent failed
or refused to rehire Hamm because he sought Board assistance in the
instant case since the 8(a)(4) allegation of the complaint did not specifically
allege that violation . The General Counsel excepts, contending that the
Administrative Law Judge's reading of the complaint is too restrictive and
narrow, and, contrary to both Board and court precedent, particularly since
that issue was fully litigated and briefed by the parties. We find meet in the
General Counsel's exception.
We have therefore carefully considered this issue on the merits and
conclude that the record does not support a finding that Respondent
refused io rehire Hamm because he sought Board assistance in May 1974.
For the most part we rely on the reasons set forth by the Administrative
Law Judge, which convince, us that the General Counsel did not establish a
violation of Sec. 8(aX3). We attach no significance to Ned Pinhey's
statement that after Hamm complained to the Board he decided any further
attempt to avoid Board proceedings would be futile . Ned Pinhey had
already decided that he would not rehire Hamm . Moreover he had
continually over d period of almost a year tried to avoid any misunderstand-
ing or conduct which, might lead to further proceedings or hearings, as is
clearly evidencbd by the special treatment he afforded Hamm after Hamm's
remstatemerli. For these reasons we consider Ned Pmhey 's remark nothing
more than his own opinion that no matter what he did in an attempt to
avoid further proceedings Hamm would file charges.
EARLDEAN V.S. ROBBINS', Administrative Law Judge:
This case was heard before me in Los Angeles, California,
on February 26, 1975. The charge herein was filed on June
20, 1974, by Dennis Hamm, an individual, and served on
Sports Coach Corporation of America' on that same date.
The complaint which issued on January 22, 1975, alleges
that Respondent has violated Section 8(a)(1) and (3) of the
National Labor Relations Act. On February 7, 1975, an
amended charge was filed by Hamm and served on
Respondent on that same date. On February 10, 1975, an
amendment to the complaint issued which alleges that the
Respondent has violated Section 8(a)(1), (3), and (4) of the
Act. Posthearing briefs were filed by the General Counsel
and the Respondent.
The basic issue herein is whether Respondent refused to
recall or rehire Hamm because he engaged in union or
other concerted activities and/or because he filed charges
and gave testimony in Cases 31-CA-28072 and 31-CA-
3429.3
Upon the entire record, including my observation of the
witnesses, and after due consideration of the briefs filed by
the parties, I make the following:
FINDINGS OF FACT
1. JURISDICTION
Respondent, a California corporation with an office and
principal place of business in Chatsworth, California, is
engaged in the manufacture and sale of recreational
vehicles and related products. Respondent, in the course
and conduct of its business operations, annually derives
gross revenues in excess of $500,000 and annually sells and
ships goods valued in excess of $50,000 directly to
customers located outside the State of California.
The complaint alleges, Respondent admits, and I find
that Respondent is, and at all times material has been, an
employer engaged in operations affecting commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
H. LABOR ORGANIZATION
The complaint alleges , Respondent admits, and I find
that International Union, United Automobile, Aerospace
I This is the correct name of the Respondent as stipulated at the hearing.
A motion was granted to amend the formal documents to reflect
'Respondent's correct name.
2 Sports Coach Corporation ofAmenca 203 NLRB 145 (1973).
3 The charge in this matter was withdrawn.
218 NLRB No. 158
SPORTS COACH CORPORATION OF AMERICA 993
& Agricultural Implement Workers of America, U.A.W.,
herein called the Union , is, and at all times material has
been, a labor organization within the meaning of Section
2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Hamm was first employed by Respondent on September
18, 1971, as a cabinet installer. The Union began its
campaign to organize Respondent's production and
maintenance employees in late December 1971. Hamm
was the leading union supporter among Respondent's
employees. He made the initial contact with the Union and
set up the first meeting on January 6, l972 ; ' between a
union representative and Respondent's employees. On
January 12, at Respondent's plant, Hamm and two fellow
employees solicited,other employees to sign union authori-
zation cards. Just prior to the end of their shift that day, all
three were discharged. Hamm filed unfair labor practice
charges on January 13, 1972, in Case 31-CA-2807, alleging
that the discharges were violative of the Act. Pursuant to
the charge, a complaint issued and a hearing was held on
various dates in June 1972, at which Hamm testified.
During the course of the hearing Respondent offered
Hamm a job which he accepted. On his return to
Respondent's employ on June 26, 1972, he was assigned to
the warranty section, a department with about seven
employees located about a mile from Respondent's main
plant where most of Respondent's several hundred
employees worked. In November 1972, Hamm was again
terminated. He filed an unfair labor practice charge in
Case 31-CA-3429 alleging his discharge as violative of the
Act.
On December 14, 1972, the Decision of the Administra-
tive Law Judge issued in Case 31-CA-2807 in which the
June 12 discharges were found violative of Section 8(a)(1)
and (3) of the Act. The Board adopted the Judge's findings
and conclusions as to this violation and ordered the
discriminatees reinstated with backpay.
B. Sequence of Post reinstatement Events and the
Failure to Recall Hamm
In compliance with this order, Hamm was reinstated on
June 25, 1973,4 to his old job in cabinet installation. After
Hamm returned to Respondent's employ, he participated
in collective-bargaining negotiations with Respondent as a
member of the union bargaining committee. He attended
all of the bargaining sessions except one and was one of the
four committeemen who signed the collective-bargaining
agreement which was executed on July 3.
According to the undenied testimony of Edward "Ned"
Pinhey, herein called Pinhey, whom I credit, after the
hearing and before issuance of the Board order in the
earlier case, on several occasions Hamm told Pintley that
he had some personnel training in school and if the Board
ordered his reinstatement he would be interested in
working in personnel.5 Prior to the execution of the
collective-bargaining agreement, Pinhey had some tenta-
tive discussions with a union representative regarding
transferring Hamm, to, the personnel department. Pinhey
testified that this as done "primarily because I simply
didn't want to have any problems with the-with the
Union in the handling of this matter; because we'd had
some rather expensive and lengthy hearings in the past,
and I was trying to avoid any problems."
Thereafter, during the latter part of July or the first of
August, Robert Spar, Respondent's president, approached
Hamm and said he felt that Hamm was qualified for
higher-paying, more sophisticated-type work for Respon-
dent.6 The record does not show whether Spar or Pinhey
first actually offered Hamm the transfer. However, the
discussion as to the terms of the transfer were with Pinhey.
According to Pinhey's undenied testimony, Hamm request-
ed that he have 90 days in which to return to the
bargaining unit without loss of seniority. Pinhey said he
had no objections but it would require the concurrence of
the Union as he did not think he had the power to amend
the contract without the concurrence of the Union.
Thereafter Pinhey contacted Union Representative
Bruce Lee, related Hamm's request, and stated that he had
no objections. Lee stated he would be willing to sign a
letter to that effect. On August 8, the following letter of
agreement was executed:
Confirming our verbal agreement of this date, Mr.
Dennis Hamm has been offered a position within the
Company outside the UAW bargaining unit. Proba-
tionary period for this position shall be ninety (90)
days. We have agreed that either Mr. Hamm or the
Company may at any time during the 90-day period
terminate Mr. Hamm's employment outside the bar-
gaming unit and, in that event, we agree that Mr.
Hamm shall be restored to his former position within
the bargaining unit with full seniority rights.
On August 11, Hamm was transferred to the personnel
department.
Impelled by the energy crisis, in November, Respondent
laid off all production employees 7 and approximately 50
percent of the overhead personnel. Hamm's position in
personnel was eliminated and has not been reinstated.
Pinhey credibly testified that when he was scheduling
layoffs, he counted the days under the August 8 agreement
and ascertained that Hamm had been in personnel slightly
more than 90 days.
According to Pinhey, the timing was so close that he felt
he would be inviting Board proceedings by simply laying
him off or by returning him to the bargaining unit without
seniority. Therefore, since Respondent was retaining its
production supervision and had an opening for a supervi-
sor in the cabinet shop, Pinhey offered Hamm a job as
supervisor in the cabinet shop. According to Pinhey,
Hamm said he would have to think about it. According to
4 All dates herein are in 1973 unless otherwise stated. Counsel also mentioned Hamm's desire to work in personnel.
5 Hamm testified that he never asked for a transfer which, in my opinion, 6 This is from the undenied testimony of Hamm, whom I credit in this
does not constitute a denial of Pinhey's testimony Also uncontradicted was regard.
Pinhey's statement that dung settlement negotiations, counsel for General 7 Some production employees were retained in maintenance capacities.
994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hamm, he said unless he could have a probationary period
as supervisor he would prefer returning to the bargaining
unit.
Thereafter, according to Hamm, for a week he worked
both in personnel and in cabinet installation. He tried to
see Pinhey during the entire week that he worked both jobs
but was unable to until one of the last days of the week.
After trying unsuccessfully to reach Pinhey that week, on
approximately November 8 or 9, he gave Pinhey's secretary
two personnel status forms to transmit to Pinhey-one
transferring him to the supervisory position with a
probationary period and one returning him to the
bargaining unit. When he finally saw Pinhey on one of the
last days of the week, Pinhey informed him that he would
not give him a 90-day probationary period as supervisor.
Pinhey agrees that Hamm said unless he was granted a
probationary period as supervisor, he preferred' returning
to the bargaining unit. However, his version of this
conversation conflicts with Hamm's both as to time and
substance. Thus, he testified that he first learned of
Hamm 's request during the week preceding Wednesday,
November 21, the day of a massive layoff. According to
him, transfers and changes are effective on Mondays. The
Monday following the offer of the transfer passed, he was
under the impression that Hamm had begun work in the
cabinet shop as supervisor but he had not signed the
authorization for the transfer. So he called his secretary
and asked for it. When his secretary brought him the
authorization, she also brought him the change-of-status
forms left by Hamm.
According to Pinhey, the way the supervisor's form was
written, it gave Hamm a right is perpetuity8 to return to
the bargaining unit. He immediately called Hamm into his
office and told him he had already served his 90 days, that
if he took the job as supervisor, he had to perform like any
other supervisor in the Company, and that it was unfair to
give him any additional rights. Hamm said he'd prefer
returning to the bargaining unit. Pinhey explained that if
he returned to the bargaining unit, he would have no
seniority and, as he well knew being in personnel, he was
scheduled to be laid off. Hamm said that was fine with him
because he was going to go to school and get the G .I. Bill
and unemployment. Whereupon Pinhey picked up the
telephone and directed his transfer to the bargaining unit.
Hamm denies ever saying he wanted to be laid off so he
could collect unemployment. He also denies ever discuss-
ing with Pinhey his being a probationary employee. He
does not deny making the statement about school and the
G.I. Bill.
On November 21, Hamm was laid off. On that same
date, he filed a grievance alleging that he was laid off out of
seniority. The grievance was carried through the third step,
in which Personnel Director Ted Pinhey, Ned Pinhey, and
a union representative participated. Ned Pinhey's undenied
testimony, which I credit, is that during the grievance
meeting he said Hamm had been offered a job as
8 Pinbey testified that he doesn 't know whether Hamm actually intended
that he retain such an absolute right to return to the bargaining unit but that
was the way he (Pinhey) interpreted the statement.
9 Pmhey testified that the approximately 15 percent of the probationary
employees who were recalled (about 10 persons) were not selected by
original hire dates . Rather, supervisors were given a list of probationary
supervisor which he had refused, and that he was willing to
return Hamm to the bargaining unit with his full seniority
if that was what the Union wanted. The union representa-
tive said no, Respondent was going through layoffs, Hamm
would displace other workers, that his 90 days had run, it
was Hamm's choice, and he had lost his seniority.
In view of the above circumstances, I find that Hamm
had no right of recall under the collective-bargaining
agreement. I found the testimony of both Hamm and
Pinhey unreliable as to the dates and sequences of the
statements made in the conversations they had relative to
Hamm becoming a supervisor in the cabinet shop. They
both testified as to at least two conversations but there was
no real attempt to separate the conversations in all aspects.
From Hamm's testimony, it is possible that there were
three conversations and certainly nothing in Pinhey's
testimony forecloses this. However, even assuming that
Hamm's testimony is correct as to dates, the record does
not establish that Hamm requested a return to the
bargaining unit within the required 90-day period. Thus,
Hamm testified as follows:
Q. You testified that sometime during the 90-day
period you made a request to return to the bargaining
unit; is that correct?
A. Yes, I did.
Q. Do you recall when that was?
A. Approximately the 8th or 9th of November.
November 9 would be the ninety-first day. Therefore,
General Counsel has failed to establish that Hamm
complied with the requirements of the August 8 agreement.
Furthermore, as indicated above, notwithstanding Pinhey's
inability to recall the precise date, I credit his testimony
that he counted the days and found it wasjust outside the
90-day period. Also, the conclusion reached at the
grievance hearing tends to corroborate Pinhey's testimony.
Accordingly, I find that Hamm had no recall rights under
the collective-bargaining agreement.
However, Respondent has rated Hamm as ineligible for
rehire and refused to reemploy him even though some
probationary employees were recalled and Respondent
was hiring new employees.9 Hamm testified that in March
1974, after he learned that some employees were being
recalled, he telephoned Ted Pinhey and asked if he was
going to be recalled. Pinhey said he didn't know, that
Hamm should check with him again. A couple of weeks
later, Hamm telephoned Pinhey again. Pinhey said nothing
was happening. Two or three weeks -later, when Hamm
telephoned Ted Pinhey, Pinhey told him he probably
would not be recalled.
In May, Hamm complained to the Board regarding the
failure to recall him but apparently did not actually file a
charge. According to Hamm, following a conversation
between a Board agent and someone from the Company,
employees from which they could make specific requests for rehire. The
only ones rehired were those specifically requested by supervisors. Hamm
was not so requested . When counsel inquired as to why Hamm was not
requested, Pmhey suggested that it was because Hamm did not get along
with the supervisors . According to Pinhey's undenied testimony, Hamm
thought the supervisors did not perform their jobs properly, and said so.
SPORTS COACH CORPORATION OF AMERICA 995
the Board agent suggested that he file an application for
reemployment.io
Sometime in May, Hamm did file an application for
reemployment. After several days, he telephoned Ted
Pinhey and inquired as to the disposition of his applica-
tion. Pinhey said nothing had yet been done. Hamm asked
if he had talked to Ned Pinhey. Ted Pinhey said he had not
been able to contact Ned Pinhey and suggested that
Hamm contact him again. A few weeks later Hamm again
telephoned Ted Pinhey and asked if he had heard from
Ned Pinhey or found out anything about his application.
Pinhey replied that Ned Pinhey had said flat out, "No
way."
Ned Pinhey admits that he told Ted Pinhey that unless
he was under some legal obligation, he didn't want to
reemploy Hamm . He also testified:
Q. And what did you tell your father was the
reason why Hamm could not be rehired?
A. I said, "The only reason he's filed an applica-
tion is, in my opinion, was because he was directed to"
- by a member of your office - "and that they're
going to drag us into a hearing again no matter what we
do; and I'm so tired of it I don't even want to think
about it." And Dennis wasnothing but a problem, and
if I never saw him again that would be too soon, or
words to that effect.
Q. So the reason, then, was that Mr. Hamm , went
to the Labor Board? That's the -
A. No, that's not the reason.
Q. But you did mention that in the conversation,
that Mr. Hamm had been to the Labor Board and he
was going to file charges?
A. I stated Mr. Hamm in my opinion had been
directed to submit the application and it was not out of
any motivation for a job, which was my belief at that
time and still is.
Q. Now, you knew that Mr. Hamm had on several
occasions called the Company, spoke to your father,
and asked for employment with the Company?
A. He called me - Or, no, wait; maybe it wasn't
him; maybe it was Mr. Prough or whatever his name is.
I'm not sure. No, I didn't know that he called several
times. I heard him testify to that.
Q. And, yet, you still believed, after the calls, the
job application, and these charges, that he doesn't want
employment at the Company?
A. No, I stated that -
Q. You - Didn't you testify that you still don't
believe he wants employment with the Company?
A. I stated that his purpose in filing the application
was not a desire for employment at the Company. That
is still my opinion.
Q. What was his purpose, then, in - What do you
believe his purpose was in filing a job application if not
to seek employment?
A. He had been - His purpose was to have a
hearing to get back-wages , as he's already done in the
case noted, in my opinion.
Pinhey further testified:
Q. Can you state at this time what the reasons
were, Mr. Pinhey, that Mr. Hamm was not eligible for
reemployment after his reapplication.
A. Mr. Hamm was - His attitude and his general
demeanor and his constant demand for special atten-
tion and special consideration and treatment was -
has reached a point where it was just simply no longer
reasonable to continue employing him, particularly his
course of conduct over a considerable period of time
particularly was really what caused me to make that
statement, which is, I think, the only time I've ever
actually done that since I've been at the Company with
any employee, and that was the fact that while he was
employed in personnel the first part of November, we
were going through a great deal of work scheduling
these - these layoffs; it's a very difficult, time-
consuming job; and Mr. Hamm knew from his position
that his position in personnel was being eliminated, and
I was concerned, because of his prior - the prior
hearings, that this would somehow be interpretated -
interpreted as being some sort of discriminatory
activity on our part. I went out of my way to offer him
a supervisor's job, the real purpose being to avoid
problems with the Board or with the Union or anyone
else. Mr. Hamm - I told Mr. Hamm he'd be scheduled
for layoff if he went back to the bargaining unit. He
knew, or should have known, because he had access to
the records and was participating in the scheduling of
the layoffs, in the personnel department. When he
handed me a typewritten document which stated -
letters for my signature stating that he would take the
position as a supervisor on the conditions that at any
time should he ever desire to return to the bargaining
unit he could do so with full seniority rights. To me, it
was just the final - it was indicative of his entire
attitude. It was just too much . I was laying off people
that had been working at the Company a long time.
Nobody had that right. No employee has that, from the
chairman of the Company down to the newest
employee. I explained that to Mr. Hamm and said it
was just incredible, that I couldn't understand it; I still
don't understand it. I explained it to him over a great
period of time. It was not a brief conversation at all.
And he told me that he would rather be'laid off, get the
G.I. Bill, collect his unemployment compensation so he
could go to school. And while I was watching people
who wanted to work lose their work all around me. I
didn't know whether the Company was going to survive
and keep its doors open another day. Quite honestly, I
was very - very upset about it, and I did not want him
to work for me any longer.
10 Ned Pinhey testified that when he received this telephone call he a new employee . Pinhey replied he wasn't quite sure, he hadn 't considered
explained about Hamm's lack of recall rights and related the outcome of the it.
grievance proceeding . Pinhey was asked his position as to rehiring Hamm as
996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Counsel argues that illegal motivation can be
inferred from (1) Respondent's previously established
union animus , of which Hamm had been a primary target;
(2) the absence of any explanation based on legitimate and
substantial business considerations; (3) Respondent's
preference in hiring inexperienced and unknown appli-
cants over a tested and competent former employee; (4)
Respondent's unwillingness to give Hamm any explanation
of, or reason for, its refusal to hire him, and (5) the
advancing of shifting, evasive, inconsistent, and inconse-
quential reasons for ,the refusal to recall or rehire him.
I find General Counsel's argument without substantial
support in the record and, considering the circumstances
herein, in the law. The argument as to shifting, evasive,
inconsistent, and inconsequential reasons fails to recognize
that the issue herein and the questions put to Pinhey by
counsel encompasses three distinct acts or nonacts. They
are (1) the failure to accord Hamm contractual recall
rights; 11 (2) the failure to rehire him when 15 percent of
the probationary employees were called back 12 to work;
and (3) the failure to rehire him after he filed an
application and when Respondent was hiring new employ-
ees.
It is apparent from the record that the reasons were in
fact different. Thus, he was not accorded contractual recall
rights because he had none. Probationary employees were
hired only upon the special request of supervisors. No
supervisor requested his rehire. The fact that Pinhey so
.testified cannot be described as shifting or inconsistent
reasons . They were different reasons for different actions.
I find similarly unpersuasive General Counsel's argu-
ment that a further indicia of discriminatory motivation
was Respondent's unwillingness to give Hamm any
explanation of, or reason for, its refusal to hire him. There
is no evidence of any such unwillingness. Hamm's general
testimony as to conversations did not impress me as being
an attempt to relate total conversations. He admits that
Ted Pinhey's reply as to Ned Pinhey's reaction on his
rehire was, "No way." His denial that he was given a
reason was couched in conclusionary language. The
evidence does not appear to be an account of precisely
what was said, and there is no evidence that Hamm asked
fora reason.
As to the absence of any explanation based on legitimate
and substantial business consideration, it appears that
General Counsel is equating the situation here with those
acts found by the Board to be inherently destructive of
employee rights and requiring no evidence of discriminato-
ry motivation. Such' an assumption is erroneous. General
Counsel must establish discriminatory motivation. In the
absence of a prima facie showing of illegal motivation, it is
not incumbent upon Respondent to establish legitimate
reasons . Even then, the legitimate reasons need not
constitute substantial business reasons.
As to Respondent 's previously established union animus,
the potency of such as an indicia of discriminatory
motivation wanes with the passage of time .' This is
particularly true where , as here , there is no evidence that
Respondent continues its predilection for engaging in
illegal activity. To the contrary, Pinhey's undenied testimo-
ny is that Respondent and the Union maintain amicable
relations and there is no evidence that Respondent has
acted in a discriminatory manner toward any current
union activist.13
Furthermore , the evidence indicates that Hamm has
been accorded rather generous treatment . Hamm wanted
to work in personnel , Respondent permitted it. Hamm
wanted a 90-day guarantee that he could return to the
bargaining unit without loss of seniority . Respondent gave
it to him. Hamm was scheduled for layoff. Respondent
offered him a job as supervisor in order to continue his
employment. Hamm filed a grievance alleging , in essence,
that he should have been returned to the bargaining unit
without loss of seniority . Notwithstanding that Hamm had
failed to request the transfer within the time limitation
established by the August 8 agreement , Respondent took
the position that if the Union so desired, Hamm could
retain his seniority . Unfortunately for Hamm, the Union
felt it was also obligated to other employees and refused to
agree to the retention of his seniority. The above is not the
pattern of an employer lying in wait to vent his hostility
upon Hamm.
Contrary to General Counsel's contention, I credit
Pinhey's reason for not wishing to rehire Hamm . Consider-
ing all of the special consideration which Respondent had
accorded- Hamm, I do not find it implausible that within
the context of having to lay off approximately 400
employees and having to completely cease production,
Pinhey would be "fed up" with an employee who preferred
no job and no seniority rather than accept a supervisory
job simply because Respondent refused to accord him any
further special privileges . Therefore, in all the circum-
stances I fmd that the General Counsel has failed to
establish that the failure to include Hamm among the
probationary employees recalled was discriminatorily
motivated. I further fmd that the General Counsel has not
met his burden of establishing that Respondent failed to
rehire Hamm because of his union activities.
The remaining question is whether Respondent failed to
rehire Hamm because he filed charges with or gave
testimony before the Board in Cases 31--CA-2807 and 31-
CA-3429. In view of the above , and of the complete
absence of any evidence to establish animus regarding
Hamm's involvement in those two cases , I fmd that
11 Although it is unclear from the contract, it is undisputed that
probationary employees have no seniority.
12 1 accord no weight to General Counsel's efforts to draw some
inference from the manner in which the words recall, reinstate , and rehire
were used . There is nothing in the record to indicate that the use of these
words by Pmhey, and in Respondent's records, indicated the technical
meanings ascribed to them by counsel for General Counsel.
13 The only evidence of animus adduced by General Counsel is a remark
made by Ned Pmhey in September at an employer-union-employee dinner
that "they just didn't have anybody in the Union and that-he'd probably try
and get it decertified later on the first opportunity he had," whereupon
'Haulm acknowledged that there were not that many people in the Union.
SPORTS COACH CORPORATION OF AMERICA
General Counsel has also failed to establish that Respon-
dent has violated Section 8(a)(4) of the Act.14
Upon the foregoing findings of fact and conclusions of
law and the entire record herein , and pursuant to Section
10(b) of the Act, I hereby issue the following recommend-
ed:
14 In so finding, I have not failed to note Pmhey's several references to
the previous cases in which Hamm was involved. However, contrary to
General Counsel, I find nothing smister in such reference. In each instance,
the essence of Pinhey's remark was that he acceded to Hamm's various
requests and made preliminary checks with the Union because he wanted to
avoid any misunderstanding which might lead to further involvement in
Board proceedings. I find nothing in the record to cause me to consider this
as evidence of illegal motivation. I do consider somewhat suspicious
Anhey's further statement that after Hamm complained to the Board he
decided that any further attempt to avoid Board proceedings would be
ORDER 15
997
It is ordered that the complaint herein be, and the same
hereby is, dismissed in its entirety.
futile. Although this raises the specter of a failure to hire Hamm because he
sought the assistance of the Board , the complaint does not allege this as a
violation so it is unnecessary to reach the factual and legal issues involved.
15 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 waived for all purposes.