Bighorn Beverage

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