Anderson Excavating Co.

National Labor Relations Board - Board Decisions

Jun 30, 1992

307 N.L.R.B. 1013 (N.L.R.B. 1992)

1013
307 NLRB No. 155
ANDERSON EXCAVATING CO.
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
The Respondent has requested oral argument. The request is de-
nied as the record, exceptions, and briefs adequately present the
issues and the positions of the parties.
There are no exceptions to the judge’s finding that the Respondent
did not violate the Act when it laid off employee George Phares on
May 19, 1990.
2 All subsequent dates are in 1990 unless otherwise indicated.
Anderson Excavating and Wrecking Company and
George Phares. Cases 33–CA–9113 and 33–CA–
9137
June 30, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On May 17, 1991, Administrative Law Judge Wal-
lace H. Nations issued the attached decision, finding
that the Respondent violated Section 8(a)(3) of the Act
by refusing to recall George Phares from layoff on
May 30, 1990. The Respondent filed exceptions and a
supporting brief, and the General Counsel filed a brief
in support of the judge’s decision.
On November 25, 1991, the Board issued an Order
remanding the proceeding to the judge to make spe-
cific credibility findings as to an alleged May 30, 1990
conversation between Union Business Representative
Charles Murphy and the Respondent’s vice president,
Lanny Levell. On January 17, 1992, the judge issued
the attached supplemental decision in which he made
the requested credibility findings and reaffirmed his
original recommended Order. The Respondent filed a
letter maintaining its original exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision, the supple-
mental decision, and the record in light of the excep-
tions and briefs and has decided to affirm the judge’s
rulings, findings,1 and conclusions only to the extent
consistent with this Decision and Order.
The Respondent excepts to the judge’s finding that
it violated Section 8(a)(3) by failing to recall Phares
from layoff on May 30, 1990.2 We find merit in the
Respondent’s exceptions, reverse the judge’s finding,
and dismiss the complaint.
The Respondent and the Union were parties to a col-
lective-bargaining agreement covering demolition work
at a jobsite in Springfield, Illinois. The Respondent
was contractually obligated to obtain Operating Engi-
neers employees from the Union’s exclusive hiring
hall. The Union referred applicants for work in order
of registration on the referral register. The Respondent
could not request by name a particular individual for
referral.
On April 19, the Respondent requested referral of a
crane operator. The Union referred George Phares. On
May 19, the Respondent laid off Phares.
Union Business Representative Murphy testified that
on May 30 he received a phone call from the Respond-
ent’s vice president, Levell, requesting an oiler. Mur-
phy claimed that he reminded Levell that Phares was
laid off from the Respondent’s employ and that Levell
should call Phares back for the oiler position. Murphy
further testified that Levell responded he would not
hire Phares as an oiler because he was an operator.
The Union then referred Elmer Fickus for the oiler po-
sition.
The judge found that the Respondent unlawfully re-
fused to recall Phares. The judge found that although
someone requested an oiler on May 30, it was difficult
to believe that Levell did so, because he was in Wash-
ington, D.C., that day. The judge did not resolve
whether the Murphy-Levell conversation occurred or
whether Murphy mentioned Phares during such a con-
versation.
The Board was unable to pass on the Respondent’s
exceptions to the judge’s decision because the judge
failed to make crucial findings about the Respondent’s
May 30 referral request. Accordingly, the Board re-
manded the case with instructions to the judge to re-
solve whether the May 30 conversation occurred and
whether Murphy specifically stated that the Respond-
ent should call Phares back to work as an oiler.
In his supplemental decision, the judge found that
the conversation in question did not take place. None-
theless, the judge concluded that the Respondent vio-
lated the Act by refusing to recall Phares. The judge
based this conclusion on his finding that the Respond-
ent’s practice was to transfer employees from job to
job to avoid layoffs or to recall employees from layoff
to perform jobs other than those to which they were
originally assigned in order to keep its crew together.
Because Phares was qualified to be an oiler, the judge
found that the Respondent could, consistent with its
past practice, have recalled him without asking the
Union for a referral, and that by failing to do so, the
Respondent engaged in unlawful disparate treatment of
Phares.
We do not agree. Accepting the judge’s credibility
resolutions, the critical facts are as follows. Some
agent of the Respondent other than Levell requested
that the Union refer an oiler, the Union did not men-
tion Phares, the Union referred Fickus, and the Re-
spondent accepted the referral as it was contractually
obligated to do in the absence of just cause to reject
the person referred. Given the credited facts, the Re-
1014 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 The judge found that the Respondent laid off employee Harold
Davis and recalled him to an oiler position. The record does not sup-
port the judge’s finding. Davis refused to perform other work for
several days while his endloader was out of service. When he re-
turned to work, he (with the Union’s aid) received some pay for the
days he did not work. The record does not show to what job he re-
turned. Although he performed as an oiler temporarily at some time,
the record does not show when this occurred. Given the sketchiness
of the testimony concerning Davis, we are unable to determine
whether he was in fact laid off.
Although the Respondent rehired employee Paul Canum, who had
been terminated, it did so at the Union’s insistence. Because the
Union referred Canum, we do not believe that this example supports
the judge’s finding that the Respondent’s practice was to recall laid-
off employees without seeking union referrals.
In sum, neither Davis’ nor Canum’s situations establish a past
practice of recalling laid-off employees rather than seeking union re-
ferrals. This is not surprising because the General Counsel intro-
duced the evidence relating to a past practice to support the allega-
tion that the Respondent violated the Act when it laid off Phares on
May 19. As noted above, there are no exceptions to the judge’s dis-
missal of the unlawful layoff allegation.
4 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
1 All dates are in 1990 unless otherwise noted.
spondent had no contractual basis for recalling Phares
because the Union did not refer him.
The judge’s finding that the Respondent had a past
practice of recalling laid-off employees rather than
going through the Union’s referral system is not sup-
ported by the record. While the record evidence shows
that the Respondent shifted employees who were al-
ready on the job from one position to another to avoid
layoffs, the record evidence does not establish that the
Respondent recalled laid-off employees rather than
seeking union referrals.3 It is clear that Phares was on
layoff when the Respondent sought a referral on May
30.
In sum, even assuming the General Counsel estab-
lished a prima facie case that animus against Phares’
concerted activities was a motivating factor in the Re-
spondent’s failure to recall him, we find that the Re-
spondent prevails under the Wright Line4 test because
the record evidence establishes that it would have done
so in any event. The Respondent was contractually ob-
ligated to act as it did, i.e., to fill the job in question
through the hiring hall and accept the qualified indi-
vidual referred (Fickus); and it had no past practice of
bypassing the hiring hall to recall laid-off employees.
We shall therefore dismiss the complaint.
ORDER
The complaint is dismissed.
Deborah A. Fisher, Esq., for the General Counsel.
Gerald Tockman, Esq., of St. Louis, Missouri, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
WALLACE H. NATIONS, Administrative Law Judge. Based
on charges filed by George Phares, an individual, on June 14
and July 5, 1990,1 the Regional Director for Region 33
issued a consolidated complaint and notice of hearing alleg-
ing that Anderson Excavating and Wrecking Company (An-
derson or Respondent) laid off and thereafter refused to re-
hire Phares in violation of Section 8(a)(1), (3), and (4) of the
National Labor Relations Act (Act). Respondent filed a time-
ly answer admitting the jurisdictional allegations and certain
factual allegations of the consolidated complaint, but denying
that it committed any unfair labor practices.
Hearing was held in these matters in Springfield, Illinois,
on January 24, 1991. Briefs were received from the parties
on or about April 1, 1991, and a response to Respondent’s
brief was filed by the General Counsel on or about April 12,
1991. Based on the entire record, including my observation
of the demeanor of the witnesses, and after consideration of
the briefs, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a Nebraska corporation with an office and
place of business in Omaha, Nebraska. As pertinent, at all
times material to this decision, it engaged in a job at Spring-
field, Illinois, involving the demolition of buildings and other
structures at the Fiat-Allis plant. Respondent admits the juris-
dictional allegations of the consolidated complaint and I find
that it is now, and has been at all times material to this pro-
ceeding, an employer engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted and I find that Operating Engineers, Local
Union No. 965 (Union) is now, and has been at all times ma-
terial to this proceeding, a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The consolidated complaint raises three issues for deter-
mination in this decision.
1. Whether Respondent laid off George Phares on May 21
because of his protected concerted and union activities in
violation of Section 8(a)(1) and (3) of the Act.
2. Whether Respondent refused to rehire George Phares on
May 30 because of his protected concerted and union activi-
ties in violation of Section 8(a)(1) and (3) of the Act.
3. Whether Respondent refused to rehire George Phares on
June 29 because of his protected concerted and union activi-
ties in violation of Section 8(a)(1) and (3) of the Act and be-
cause he filed a charge with the National Labor Relations
Board (Board) in violation of Section 8(a)(1) and (4) of the
Act.
1015ANDERSON EXCAVATING CO.
2 This collective-bargaining agreement contains a complete griev-
ance and arbitration procedure in art. VII. This article provides for
binding arbitration of any grievance arising under its terms. There
is absolutely no reason why any of the events complained of in the
consolidated complaint, save for the alleged (8)(a)(4) violation, could
not have and should not have been handled under the grievance pro-
cedure. Certainly, the first two issues raised by the complaint should
have been deferred by the Region when the charge was filed. In any
event, credibility is a major issue in this case and I draw an adverse
inference from the failure of the Charging Party and the Union to
process the matters complained of under the grievance procedure.
3 Curiously, although Zahn and two other union officials signed
the collective-bargaining agreement, Murphy did not. This leads me
to question whether he was actually present for this meeting.
4 I believe that Phares was laid off on May 19, but the fact of the
layoff was not communicated to him until May 21.
A. Background
Anderson, who is in the business of demolishing buildings,
power plants, and bridges, was engaged to demolish the Fiat-
Allis plant in Springfield, Illinois, beginning in February
1990. Respondent Vice President Lanny Levell was in over-
all charge of this project, which was supervised on a day-
to-day basis until late July by Job Superintendent Mike An-
derson. On March 2, Respondent signed a collective-bar-
gaining agreement with the Union applying only to the Fiat-
Allis project.2 The Union operates an exclusive hiring hall,
and with the exception of three company men cleared in by
the Union, namely, Mike Smith, Reid Loffelmacher, and
Kenny Shirley, Respondent has been required under article
III-A of the contract to obtain all of its Operating Engineers
employees from the Union’s hiring hall.
Under the Union’s operation of its hiring hall, applicants
are registered for referral on the ‘‘referral register’’ and are
referred out in order of registration or ‘‘re-registration,’’ tak-
ing into account the applicant’s seniority status and qualifica-
tions to do the work required. These qualifications are set out
in the Union’s ‘‘Qualifications Book’’ maintained on each of
the Local’s members. In making requests for referrals, Re-
spondent could not ‘‘name request’’ any particular union
member for referral. The Union’s referral obligation is to
refer out from the list the most senior applicant competent
to fulfill the requirements of the positions sought to be filled.
Union Business Representative Charlie Murphy testified
that Levell, prior to signing the collective-bargaining agree-
ment on March 2, met with him twice. The first time Levell
met with Murphy and Union Financial Secretary John Hud-
son, and Levell explained what was involved in the Fiat-Allis
project. The next meeting took place with Levell, Mike An-
derson, Union Business Manager Hugo Zahn, and Murphy
present. Murphy testified that the subject of oilers was dis-
cussed, and according to Murphy, the Union told Levell that
he would have to have oilers on a certain class of machinery
operated by Respondent. Levell objected stating that he had
not figured this cost into the bid on the project. Murphy tes-
tified that the Union stood by its position.
Murphy testified that the next meeting with Levell was on
March 2, at which time Levell signed the collective-bar-
gaining agreement. Murphy testified that Business Manager
Zahn, Levell, Mike Anderson, and himself were present for
this meeting.3 At this meeting the Union agreed to clear in
certain of Respondent’s operators which it wanted to bring
on to the job. According to Murphy, there was no discussion
of any of Respondent’s mechanics doing repair work on
equipment without the oilers and operators being present, and
there was no agreement with Murphy or Zahn that mechanics
could repair equipment without the operator and oiler being
present.
However, Levell testified that he and Hugo Zahn agreed
that the Respondent’s mechanic could work on equipment
without the oiler and operator being present or paid if the re-
pair work was done after working hours. I believe that Levell
and Zahn did have a side agreement as testified about by
Levell. As noted in the footnote above, Murphy may not
have been at the meeting and Zahn did not deny Levell’s as-
sertions in this regard.
B. Was George Phares Unlawfully Laid Off
on May 214
On April 19, the Respondent sent the Union a written re-
quest for an operator for a 50-ton Lima truck crane. Murphy
referred Phares, a member of the Union’s executive board,
to fill this position.
Between the date of his employment and May 19 or 21,
when he was laid off, Phares asserted certain rights under the
collective-bargaining agreement on behalf of himself and co-
workers. It is the General Counsel’s contention that these in-
cidents irritated Respondent sufficiently to motivate it to lay
off and then refuse to recall Phares. Each of these incidents
will be addressed briefly below.
l. The matter of pay for work not performed
Phares began working for Respondent on Friday, April 20.
When Phares reported to work on April 20, he and his oiler,
Jack Fillbright, began assembling the Lima truck crane.
Phares and Fillbright went home between 1 and 2 p.m. that
day because it started raining and because after they got the
truck crane put together, they found that a point section on
it was bent.
On Monday, April 23, Phares turned in his timecard for
Friday, April 20, and recorded his hours of work on April
20 as from 7 a.m. to 3:30 p.m. Job Superintendent Mike An-
derson came to Phares and asked if there was some type of
law which he did not know. Anderson said that he had seen
Phares timecard and that Phares had requested 8 hours for
April 20 although he had gone home early. Phares explained
that according to the contract with the Union, if an employee
starts to work and performs work on the first day of the job,
he is to be paid for 8 hours. Phares testified that he based
his claim for 8 hours’ pay on article XI of the contract. Re-
spondent paid Phares as he requested.
2. The matter of pay for oilers and operators for
mechanic’s work
As noted above, Levell and Zahn entered into a side
agreement at the time of the signing of the collective-bar-
gaining agreement whereby the cleared-in company mechanic
could work on equipment without the equipment’s operator
and oiler being present and paid as the contract called for.
The existence of this agreement was not known by Murphy
or Phares. On Tuesday, April 24, Phares and his oiler began
assembling a Northwest crane with an attached breaker ball
to break concrete. Phares testified that on that date, he ob-
1016 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
served two men taking the tracks off of an endloader which
was assigned to union operating engineer Harold Davis.
Davis was not working that day. After making this observa-
tion, he had a conversation with one of the men. Phares
asked if the man had a union card and was told that he did,
but that it was in Omaha, Nebraska. Phares told the man that
without his card and without being cleared by the Union, he
was not authorized to work at the site and must cease work.
Phares based his statements on article III–A of the contract.
Phares testified that after this conversation with the me-
chanic from Omaha, he met with Mike Anderson. Phares
asked Anderson about the men he had seen, telling him they
did not have union cards and had not been cleared to work
on the job. Anderson responded that he had not hired the
men. Phares then asked to use the Respondent’s phone to
call the union hall. Anderson said he was expecting a call,
and for Phares to go outside to make the call. Phares then
went to a nearby shopping center and called Murphy, asking
him if any other men had been cleared in to work on the
job other than the three agreed on before work began on the
project. Murphy said no. Phares then returned to the job and
sought out Anderson, reiterating his position that the men
should cease work. In response, Anderson called Levell and
gave the phone to Phares. In a brief conversation, Levell told
Phares that he was not paying him for time spent calling the
union hall.
When Phares reported to work on April 25 at about 6:45
a.m., he saw Reid Loffelmacher welding on the crane which
Phares and his oiler had been assembling. He also observed
mechanic Kenny Shirley on a forklift holding up a boom
while. Loffelmacher welded on it. Phares spoke to
Loffelmacher and asked him what time he had started.
Loffelmacher replied about 6:30 a.m. Phares then had a con-
versation with Anderson, telling him that according to the
contract, no repair work was to be done on the crane with
the operator and oiler being present and being paid. He
claimed that he and his oiler should therefore be paid for the
day beginning at 6:30 a.m., when the repair work com-
menced in their absence. Phares based his claim on article
XIV of the contract. Respondent paid as requested.
Phares testified that at about 10:30 a.m. on April 25, he
went to check on the Omaha mechanics he had seen on April
24 and found they were still working on the job. He then
went to Mike Anderson, and told him that they should cease
work. Anderson refused to comply with this request. Phares
returned to work, but called Murphy on his lunchbreak and
reported the incident. Murphy testified that he received this
call and in response, went to the jobsite and talked to one
of the involved mechanics, Rich Carlson. Murphy asked if
Carlson was a union member and was told he was a member
of the Omaha local.
Murphy then met with Anderson and told him that Carlson
could have charges preferred against him by the Union for
working on the job without clearance. Anderson told him to
do what he had to do and that he would contact Levell, who
was out of State, and straighten the matter out. According to
Murphy, he then checked with the Union’s Omaha local and
learned that Carlson had taken a withdrawal from that local.
Murphy then called Levell who was in Virginia and ex-
plained the problem to him. Murphy testified that he also
told Levell that the Company’s mechanic was working on
equipment with the operator and oiler being present. Levell
said he would be at the jobsite the following Monday and
would meet with Murphy about these problems.
Murphy testified that the two did meet the following Mon-
day and according to him, Levell agreed to pay operator Har-
old Davis and oiler Freddie Phillips for times when the me-
chanic worked on their assigned equipment in their absence.
Davis testified that he was paid for 2 days in late April when
the mechanic worked on his equipment. Without elaborating,
Levell said there was more to the discussion than the above
and that the payment for 2 days to Davis was a payoff to
keep the job going smoothly.
Shortly after this meeting Phares was appointed union
steward on the project.
Phares testified that on May 16 or 17, Paul Canum, the
oiler hired to replace Phillips, reported to him that someone
had repaired his equipment overnight in his absence. Phares
reported this incident to Murphy. On May 18, Murphy came
to the jobsite where he, Levell, and Phares discussed this on-
going dispute. Levell contended that he had an agreement
with Union Business Manager Zahn that the company me-
chanic could work on the equipment without the presence of
the operator and oiler. Phares said he was unaware of any
concessions and was going by the contract. According to
Phares, Murphy was also unaware of any concessions in this
regard, but told Levell he would check with Zahn.
According to Phares, Murphy had a conversation with
Zahn, who though not remembering making concessions to
Levell, nonetheless agreed that the company mechanic could
repair machinery 1 hour a day, 3 days a week, without the
necessity of the oiler and operator being present. Murphy re-
ported this concession to Levell and told him to work with
Phares on this matter.
3. The matter of pay for a discharged employee
In mid-May, Respondent fired oiler Freddie Phillips. In
June, when Phares filed a charge with the Board over his
layoff and Respondent’s alleged refusal to rehire him, he also
alleged that the termination of Phillips was unlawful. After
an investigation, the Region decided otherwise and dismissed
the charge. However, shortly after the discharge, a problem
arose with respect to the amount of money Phillips should
receive upon termination. Phares testified that late in the day
of May 11, Phillips came to the jobsite with a problem about
the amount of his final check. Phares took the matter up with
Anderson. According to Phares, this took several conversa-
tions and Anderson told him he should be working, not
going back and forth to Phillips. Phares replied that he was
doing what his steward duties required. Anderson paid Phil-
lips the money requested.
In the last conversation that day about the Phillips matter,
Phares informed Anderson that even though Phillips had
been fired, the Respondent could not operate the equipment
to which Phillips had been assigned as oiler until a new oiler
was hired. According to Phares, Anderson got upset and stat-
ed that he could not afford to have this piece of equipment
idled.
4. The matter of a day’s pay for a partial workday and
Phares’ layoff
On Thursday, May 17, Phares operated and Davis oiled
the Northwest crane and breaker ball. The pin on the drive
1017ANDERSON EXCAVATING CO.
chain broke twice that day making the machine inoperable.
Levell testified that he did not hold Phares responsible. The
part necessary to fix the machine has been available at the
jobsite since late May; however, this machine has never been
put back in service. Levell testified that when the Northwest
crane broke, Phares asked when the Lima truck crane, which
had been taken out of service, was going to be put back in
service. Levell testified that he asked Phares if he was going
to ‘‘claim’’ the Lima truck crane and Phares said yes.
Article XII of the contract provides, as pertinent:
An employee who is laid off may claim preference
on the machine he was employed to operate for a pe-
riod not exceeding thirty (30) days provided, he does
not register for work with the Union Referral Office,
and shall be recalled if that machine performs any work
on that project prior to the end of 30 days. At the time
of lay-off, the Employer shall advise the employee if
there shall be any work for that machine in the next 30
days and the employee shall inform the Employer if he
claims preference for the 30 day period.
Levell then advised Phares not to claim the Lima truck
crane because it was going to do very little work on the
project after the overhead cranes were taken down. Accord-
ing to Levell, he told Phares that the Northwest crane with
breaker ball would stay on the job and continue to break
concrete. Levell testified that he believed that Phares did
claim the Northwest crane, but conceded that there was noth-
ing to preclude him from putting Phares on any piece of
equipment if that equipment was not being claimed by some-
one else.
At about this time, two pieces of equipment were appar-
ently going into service which Phares might operate while
his Northwest crane was out of service. One was second
Northwest crane with a magnet attached and the other was
a backhoe with a large shear attached. This latter piece of
equipment will be referred to as the ‘‘shear.’’ The second
Northwest crane with a magnet attached was placed in serv-
ice at the end of June.
Another employee, Harold Davis, was present for the con-
versation between Phares and Levell about claiming equip-
ment. According to Davis, Levell told Phares that another
piece of equipment, the shear, would be available, that there
was a lot of work for the shear, and was Phares interested
in trying to work with the shear. Phares told Levell that it
had been several years since he had been on a large backhoe
such as the one involved. Levell suggested that Phares give
the backhoe with shear a try. According to Davis, Levell also
said he would be setting up a magnet crane and said that if
Phares wanted to run it, he could. Levell testified that Phares
advised him that he had never operated a crane with a mag-
net attached. If a person is unfamiliar with the operation of
the magnet, there is the very real danger that damage can
easily be done to the magnet’s switch, costing thousands of
dollars to repair.
On May 18, a second shear was added. The first shear on
the job had been operated by cleared-in employee Mike
Smith. Levell decided to try Phares out on this second shear,
and testified that he felt obligated to call Murphy for his ap-
proval of this tryout. Murphy denied that anyone asked for
his approval of this arrangement, and Respondent evidently
never asked for such approval before switching operators
from one piece of equipment to another. On the other hand,
as will be discussed, Murphy did come to the jobsite and
with Levell, jointly observe Phares’ operation of the shear.
On Friday, May 18, Phares began operating the shear with
Davis as his oiler. According to Phares, he got on the back-
hoe with its regular operator, Mike Smith, who continued to
operate it for about 5 minutes with Phares present. Smith
briefly gave Phares instructions on how to operate the equip-
ment and then left. According to Phares, Smith did not spend
any further time with him and did not say anything further
to him about the operation of the equipment or give him fur-
ther assistance, nor did anyone else. Levell testified that he
tried to ride on the shear with Phares, but Phares’ operation
of the machine was so rough he could not hang on to the
side of it. Levell also testified that he attempted to explain
to Phares how to operate the machine. I credit Levell’s testi-
mony in this regard. This was the usual way the Respondent
broke an employee in on a new piece of equipment, and at
this time, Respondent did not appear to harbor any ill will
toward Phares, as it was attempting to keep him employed
though his regular machine was not in service. I do not be-
lieve that any failure of Respondent to properly train Phares
on the shear was discriminatorily motivated.
Levell testified that he considered Phares’ operation of the
shear to be unsatisfactory in that it was too rough and poten-
tially dangerous. Murphy, who also observed Phares on the
shear testified that he told Levell that Phares was tentative
and slow on the machine. After Phares was laid off, Levell
commented to Davis that Phares was too slow in his oper-
ation of the shear.
On May 19, Phares operated the backhoe with shear from
7 until 11:30 a.m. Phares testified that although it did rain
that day, they continued to work and they were not rained
out. According to Phares, as he was going to what he
thought was lunch, another operator told him that they were
just working a half day. Phares then went to the office to
talk with Levell. Harold Davis and Mike Smith were present
for parts of the conversation that ensued between Phares and
Levell.
Phares testified that when he asked Levell if they were
working a half day, Levell confirmed that to be true. Phares
then explained to Levell that according to the contract, if
they worked past 4 hours, unless they were rained out or a
machine broke down, they were supposed to be paid for 8
hours. Phares testified that Levell started screaming that
Phares was nitpicking him to death with union rules and that
he was not going to pay the 8 hours. Levell said that al-
though he had thought that Mike Anderson was the problem
on the job and he was going to replace him, he had decided
that Phares was the problem. According to Phares, Levell
said that he wanted them to put up a picket. He said that he
would bring in his nonunion company in the back gate and
would drive in the front gate and ask people on the picket
line how much money they had made that week. Levell said
that he would only work operators part time and that 30
hours a week would be the most that any operator would get.
Levell said if they put up pickets, the Laborers would cross
the picket line because his company had an international
agreement with them. He said that their company had been
a union company for years and that his brother had blown
up trucks of nonunion companies. As employees were leav-
1018 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Levell did testify that he believed that Phares had ‘‘claimed’’ the
Northwest crane with an attached breaker ball. Thus, for 30 days,
Respondent believed it was obligated to reassign Phares to this piece
of equipment if it was put back into service in that timeframe and
Phares did not reregister for work at the union hall. However, as
noted earlier, even if Phares had claimed the Northwest crane, there
was no contractual prohibition against assigning Phares to operate or
oil another piece of equipment if it was not claimed by another oper-
ator and if Phares was qualified.
ing, Levell said that he would have to get them back if he
had to pay them the 8 hours. According to Phares, he told
Levell that they were not going to press the contract on pay-
ing everybody 8 hours that day but he wanted him to know
that it was going to be in effect. Phares testified that Levell
finished the conversation by saying, ‘‘We’ll see what hap-
pens Monday.’’ Phares then left. According to Phares,
Levell’s voice got louder, and he paced back and forth and
waved his arms in an agitated way throughout this conversa-
tion. Phares testified that he based his claim to Levell about
pay for part days on article XI of the contract.
Davis testified that he heard Levell say that ‘‘he was sick
and tired of all the nitpicking and he wasn’t going to have
it anymore, that the nitpicking just had to come to a cease.’’
According to Davis, Levell said that ‘‘they were going to run
the job without us guys telling them what to do.’’ Levell list-
ed three alternatives. Levell said that if they wanted to strike
the job to go ahead and strike it. He said that he would go
in the back door and complete the work with his nonunion
company. As a second alternative, Levell said that if they did
not want to fall in line, he would do what he had done in
Local 649; he would call the union hall, have an operator
show up, tell him that there was no work, and just drag it
out until they got the message. Levell said that he could also
bring double sets of machines in, work operators 2 or 3 days,
lay them off and call another crew in for 2 or 3 days. Davis
described the conversation as one in which Levell spoke in
a stern tone which got their attention. According to Davis,
Phares explained to Levell that he had people to whom he
had to answer and that he was trying to get some problems
solved. Davis testified that Levell said that he thought that
Mike Anderson was the problem on the job and now he was
not so sure. Levell said that the Company in earlier days was
a staunch union supporter and at one time, his brother, Jack
Levell, had blown up some machines to get union contractors
in line who were wandering from the fold.
Levell did not deny Phares or Davis’ description of this
conversation. Levell had to leave the hearing before its con-
clusion and was not present after this testimony as well as
that of Murphy was given. Based on my observation of
Levell when testifying, I have serious doubts that he made
all the statements attributed to him in this encounter. How-
ever, regardless of what was actually said by Levell, it is
clear that he was very irritated by Phares’ claim for more
money on May 19.
May 19 was Phares’ last day on the Respondent’s project.
The entry in the daily log for May 19 states that Phares was
‘‘laid off today, crane is broke.’’ According to Levell, as
Phares’ regular crane was out of service and there was no
other work available for Phares except on the shear, he laid
off Phares on May 19 because he ran the shear too roughly
and too dangerously and he could see that Phares was going
to cost his company too much money.
At 6:15 a.m. Monday, May 21, Phares received a phone
call from Levell. Phares testified that Levell told him that he
did not have any work for him that day. According to
Phares, Levell did not tell him that he had not worked out
on the backhoe or that he was being laid off. After Levell’s
call, Phares went to the union hall. He was at the hall when
a referral request was received from Respondent for an oper-
ator for the shear. Phares told Murphy that Respondent had
called him and told him that they did not have any work for
him.
According to Phares, about 6:15 a.m on May 22, he re-
ceived a call from Mike Anderson. Anderson told him that
they did not have any work for him that day. Anderson also
called Phares on May 23, 24, and 25 and told Phares the
same thing. On Friday, May 25, Phares went to the jobsite
to pick up his paycheck. At that time, Anderson told him that
he would give him a call the following Tuesday and let him
know if he had any work for him or not. After the conversa-
tion on May 25, Phares never heard from either Mike Ander-
son or Levell. He contends he was never told he was laid
off. I believe that there may have been some confusion in
Phares’ mind on this point because Respondent continued to
call him on a daily basis for several days. However, the fact
of his layoff must have become obvious when Respondent
requested an oiler on May 29 or 30, a position for which
Phares was qualified.
Union Business Agent Murphy testified that on Monday,
May 21, Phares came to the union hall and told him that Re-
spondent had laid him off and did not have any work for
him. After Phares reported this to Murphy, Murphy went to
the jobsite where he had a conversation with Levell. Murphy
testified that he asked why Phares had been laid off. Accord-
ing to Murphy, Levell said that they had worked a half day
that was one-half hour past the lunch hour on Saturday but
that Phares was not aware that it was going to be a half day.
According to Murphy, Levell told him that Phares said he
would have to pay employees according to the contract for
an 8-hour shift. Murphy testified that Levell became upset
and told him if he caught any more people reading that
agreement he was going to fire them. Levell also told Mur-
phy that they were in no hurry to fix Phares’ crane. As noted
above, Levell left the hearing before this testimony and did
not deny this conversation.5
Was Phares’ layoff discriminatory? The Board set forth in
Wright Line, 251 NLRB 1083 (1980), the causation test to
be used in all cases alleging discriminatory discharges or lay-
offs. The General Counsel must make out a prima facie
showing that protected conduct was a motivating factor in
the employer’s decision; the burden then shifts to the em-
ployer to demonstrate the same action would have taken
place even in the absence of protected conduct. Phares did
engage in protected conduct in seeking to enforce the con-
tractual provisions and such activity did irritate Levell. The
timing of Phares’ layoff, coming immediately after his latest
assertion of a costly claim against Respondent and Levell’s
being upset by it, certainly supports the General Counsel’s
position. Phares’ protected activity prior to May 19 does not
appear to have upset Respondent as it tried him out on the
shear when his regular machine broke. It could have laid him
off at that time if it were looking for a reason to get rid of
him.
1019ANDERSON EXCAVATING CO.
6 Degner was the employee referred by the Union on May 21 to
replace Phares in the operation of the shear.
Based on the timing of the layoff, the veiled threat made
to Phares by Levell on May 19, and Levell’s statement on
May 21 to Murphy about firing any employee who read the
contract, I find that General Counsel has made the requisite
prima facie case under Wright Line, supra. On the other
hand, I believe that Respondent has demonstrated that it
would have laid off Phares even in the absence of his pro-
tected activity. Respondent demonstrated that at the time of
his layoff there was no other work available except as the
operator of the shear. It did not use Phares’ Northwest crane
again on the project nor did it employ another crane to do
what Phares had been doing, breaking concrete with a break-
er ball, until October.
I also believe the best evidence demonstrates that Phares
did not perform adequately on the shear. I have considered
the testimony of Phares, Davis, Murphy, and Levell in this
regard. As noted earlier, even Murphy testified that Phares
was slow and rough on the shear. Although Phares gave
some excuses about his operation of this piece of equipment,
he did not file a grievance over his being taken off it.
Therefore, I find that there was no work for Phares for
which he was qualified after May 19 until May 30 and do
not find that his layoff during this period was in violation
of the Act.
C. Did Respondent Unlawfully Refuse to Recall
Phares on May 30
Murphy testified that on May 30 he received a call from
Levell requesting an oiler for the backhoe with shear. When
Levell asked for the oiler, Murphy told him that Phares was
laid off and that he should call Phares back because he was
still signed out with Respondent. Levell said he would not
hire Phares as an oiler because he was an operator. Murphy
asked Levell if that was his way of slapping Phares’ hands.
According to Murphy, Levell did not respond. After this con-
versation, Murphy sent Elmer Fickus to fill the request for
an oiler. As Levell did not testify after Murphy, he did not
deny having a conversation with Murphy on May 30, and did
not deny the conversation as testified to by Murphy. On the
other hand, Levell was shown in the General Counsel’s ques-
tioning to be in Washington, D.C., on May 30 and it is dif-
ficult to believe that he, rather than Anderson, called the
union hall to place a routine request for another oiler. In any
event, the fact remains that on May 30, an oiler was re-
quested and Phares was qualified to be an oiler.
Phares was not referred out to the project by the Union
and the Respondent had no contractual obligation to recall
him for the oiler position. However, after careful review of
the evidence, I find that by not recalling Phares to the oiler
position, Respondent acted contrary to its employment policy
and past practice without any rational explanation. Absent
such explanation, one can only assume that the discrimina-
tory motivation which was existent at the time of Phares’
layoff had not abated.
It was demonstrated in the record that Respondent’s policy
was to keep employees referred to its project on the project
unless they were fired. As will be shown below, operators
were shifted to oiler positions when their equipment broke or
was taken out of service and operators and oilers were shift-
ed from one piece of equipment to another almost routinely.
According to Levell’s testimony, it is in the Respondent’s
best interest to keep its employees working once they have
been trained. He also testified that the normal practice when
equipment breaks down is to find other work for the affected
operator and oiler ‘‘most of the time, just in certain cir-
cumstances.’’
With the exception of Phares, who was characterized by
Levell as an excellent crane operator, Respondent generally
followed this stated policy.
From April 20 through the time that oiler Jack Fillbright
went on his vacation the week of May 14, he had oiled for
George Phares on the Lima truck crane and the Northwest
crane. From May 22–30 when Fillbright quit, he oiled for
Robert Degner6 on the shear. Fillbright was replaced as
Degner’s oiler by Elmer Fickus who worked for Respondent
through July 19. When the drive motor went out on the
shear, Fickus and Degner were assigned to the Koering
crane, but on the Koering crane, Fickus was the operator and
Degner was the oiler. Fickus also operated the Northwest
crane with Degner working as his oiler.
Mike Smith ran the shear from the time he began working
for Respondent until it broke down in late October or early
November. At that time a Komatsu hoe was brought to the
job, and Smith began running this piece of equipment. Dur-
ing this period of time, Degner was operating a second shear.
When Degner’s shear was subsequently shipped to another
job, Degner began operating the Komatsu hoe which Smith
had previously operated and Smith returned to operating his
shear.
Levell testified that rather than lay Degner off when there
was no work for his shear, he tried to give him work by hav-
ing him run the Northwest crane. Degner also operated the
forklift. During the course of Degner’s employment, he not
only acted as the operator of the shear, Komatsu hoe and
forklift, but he also oiled on both the Northwest and Koering
crane.
According to Levell, Degner was the only employee other
than Phares who was laid off because there was no work for
his machine. Levell testified that Degner was laid off on De-
cember 11 because they were getting short of work to keep
all the equipment going. The job was originally scheduled to
be completed by December 1, and Steve Roberts, who began
working for Respondent on October 8, was the last operator
Respondent requested from the Union.
Ralph Booth was hired as a crane operator on July 18. He
operated the Lima truck crane, the Northwest crane with a
magnet and with a ball, and the Koering crane with a magnet
and a ball. Levell testified that a magnet crane can be dam-
aged if the switch is left on for more than 2 minutes. Ac-
cording to Levell, Booth in fact burned out the switch on the
Koering magnet crane by leaving it on too long. No action
was taken against him. In accord with Levell’s stated policy
of finding other work for his employees when their equip-
ment breaks down, Booth was then transferred to operate the
Northwest crane with the magnet.
Paul Canum replace Freddie Phillips as the oiler on the
shear afte Phillips was terminated. Canum was later fired
after he tore out the gear box on the shear. However, Levell
rehired Canum on October 12. According to Levell, he re-
hired Canum after Charlie Murphy asked him if he was
going to put Canum back to work and after he had discussed
1020 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 I am not sure whether there is any practical consequence to this
finding of a violation. Phares was aware on May 30 that he was laid
off, and must have been aware after that date that Respondent was
not willingly going to rehire him. Therefore, I believe that on and
after May 30, he had a positive duty to seek other work by reregis-
tering at the Union’s referral office. The Union’s records will show
when he would have been referred to another employer or back to
Respondent’s project as it uses a rather mechanical formula for refer-
rals. As will be discussed below, I find that he was never properly
referred back to Respondent.
it with Mike Smith, the backhoe operator. During Canum’s
employment with Respondent, he oiled on both the Komatsu
hoe and the shear.
Barney Ferguson worked as an operator, and Bob Mathon
worked as his oiler. During the period May 21 through their
termination on June 28, it appears that from the daily log
that Ferguson operated and Mathon oiled on three different
types of cranes.
Harold Davis was laid off for a period of time when his
endloader has been broken down and he refused an offer to
operate a crane. However, he was recalled to oil for the
crane which Phares operated.
With respect to company policy about replacing tempo-
rarily missing operators or oilers, Phares testified that in a
conversation with Levell, Levell said that rather than call for
a new hire for 1 or 2 days, he preferred to keep the people
he started with and just switch them around. Harold Davis
testified that he was present for this conversation and remem-
bered Levell saying that he did not like to call the union hall
to replace an oiler or operator for a day or two, but liked
to keep a crew working every day.
Given Respondent’s policy and practice of shifting em-
ployees from machine to machine and from the operator po-
sition to oiler position and back again to keep its crew to-
gether, Levell’s statement that he did not recall Phares to oil
because he was an operator just does not ring true. Although
Respondent credibly asserted that Phares was not qualified to
operate the shear, and feared he was not qualified to operate
a magnet crane, there is no evidence to show there existed
any doubt about his qualifications to oil the shear. I do not
credit Respondent’s contention that it could not have violated
the Act by not recalling Phares on May 30 because it had
no contractual obligation to do so. Its past practice and pol-
icy dictated that it would have recalled him to oil on that
date had it not had a reason for not wanting him back on
the project. The only reason discernable from the evidence
for not wanting Phares is Respondent’s unhappiness with
Phares’ protected activities. Consequently, I find that Re-
spondent, by not rehiring Phares to oil on May 30 violated
Section 8(a)(1) and (3) of the Act.7
D. Did Respondent Unlawfully Refuse to Rehire Phares
on June 29 Because of His Protected Activities,
Including His Filing of an Unfair Labor
Practice Charge
On June 14, Phares filed a charge with the Board against
Respondent alleging it unlawfully laid him off on May 21
and unlawfully refused to recall him on May 30. The com-
plaint also alleges that Respondent unlawfully refused to re-
hire him on June 29 because of a continuing discriminatory
motive and because Phares filed the charge on June 14. I
have found above that Respondent violated the Act by not
recalling Phares on May 30 and as this violation was a con-
tinuing one until the project was completed, I consider the
matter of refusing to rehire him at a later date to be a moot
point. In the interest of making a complete decision in the
event that my finding of this violation is overturned, I will
address the alleged refusal to rehire on June 29. On June 28,
the Respondent requested that the Union supply it with an
oiler and an operator for a Northwest crane. The crane oper-
ator was required to be qualified to operate a magnet attach-
ment for the crane. Phares showed up at the Respondent’s
jobsite on June 29 purportedly with a referral for the position
of crane operator. Although not discussed by the parties at
the hearing, I believe that Respondent had an obligation to
recall Phares for the oiler position just as it should have re-
called him on May 30. I do not believe it was required to
recall him for the crane operator position, based on what I
find to be credible doubts on Respondent’s part regarding
Phares’ qualifications to operate a magnet crane. I also find
that Phares was not properly referred for the operator posi-
tion and do not believe that he was told he was denied work
on June 29 because he had filed a charge with the Board.
Phares and the Union contend that Phares was referred to
the Respondent to fill the operator position on June 29. As
General Counsel’s Exhibit 5(d) was introduced as a union
requisition for referral form dated June 28 purportedly refer-
ring Phares to Respondent to fill the position of operator—
Northwest Crane. The form also notes that the person re-
ferred must be qualified on magnet and steel. The form is
initialed by Murphy.
As General Counsel’s Exhibit 5(t) was introduced, the
same form, but without Phares’ name, Murphy’s initials, or
the qualification about magnet and steel filled in.
Neither variation of this referral form was supplied to Re-
spondent as part of a sworn reply to interrogatories by Zahn
in a Federal district court lawsuit Respondent has filed
against the Union. The interrogatories required that the refer-
ral forms for all persons named in the interrogatories, includ-
ing Phares, be supplied. None of the standard entries in the
Union’s other books documenting referrals notes the pur-
ported Phares’ referral. Zahn testified that the information
contained on the referral forms is entered into a permanent
ledger on the date the referrals are filled out. Yet the Union’s
ledger shows no referral of Phares to Respondent on June 28.
It does reflect the referral of an oiler to Respondent on that
date and of an operator named Charles Copley to fill the op-
erator position on June 29. Zahn also testified that the nor-
mal practice when a referred employee is rejected by an em-
ployer is to simply cross his name off the referral form and
put another persons’ name on it, not prepare a new form.
This was not done in the case of Phares’ alleged referral. For
that matter, it is my understanding of the referral process that
Phares could not have been referred to the job on June 28,
as he was not listed on the out-of-work list. He could not
have been referred on June 29 until after he reported being
out of work and then was the most senior union member
qualified for the job referral.
Because of the evidence set out above, I was of the opin-
ion at the hearing and am still of the opinion that General
Counsel’s Exhibit 5(d) was not an actual referral and was in-
stead partly manufactured to bolster the Charging Party’s po-
sition in this proceeding. I will set out the evidence presented
by Phares and the Union in this regard because it is my find-
1021ANDERSON EXCAVATING CO.
ing with respect to the legitimacy of General Counsel’s Ex-
hibit 5(d) that I make credibility findings adverse to Phares
and the Union on the issue of whether Respondent violated
Section 8(a)(4) when it did not hire Phares on June 29.
Phares testified that on June 28 he was present at the
union hall. On that date, he provided an affidavit to counsel
for General Counsel concerning the charge. Phares testified
that while he was giving his affidavit, the Union’s financial
secretary interrupted and said he had two requisition forms,
one for an oiler and one from Respondent for an operator of
a Northwest crane. The crane operator had to be qualified on
magnet and steel. According to Phares, he was shown the
requisition forms and, at that time, the forms had been filled
out except for the portion of the forms requesting the names
of the employees referred. According to Phares, he asked for
copies of the forms and they were supplied to him and to
counsel for General Counsel, who was present. Later on that
day, Phares talked with Murphy, who mentioned the possi-
bility of him going back to Respondent’s job since he was
still signed out to Respondent. Murphy told Phares that he
would talk to Hugo Zahn and that he would call Phares later
and let him know what Zahn thought. Phares testified that
he later received a call from Murphy who told him that he
should go back to the job on the crane since he was still
signed out to Respondent. According to Phares, he was re-
ferred by his business agent to Respondent’s job to operate
the crane pursuant to the referral request for a crane operator
which he had seen earlier.
Murphy testified that at 12:37 p.m. on June 28, the office
secretary at the union hall took a call from Respondent for
an operator and an oiler for a Northwest crane with a mag-
net. Murphy testified that he referred George Phares pursuant
to Respondent’s request for an operator and completed that
portion of the referral requisition form requesting the name
of the employee referred to the job. Murphy wrote Phares’
name and seniority number and his initials on the form. Mur-
phy testified that he referred Phares to fill the position for
which Respondent requested an operator and referred Huey
Lyons to fill the requested oiler position. According to Mur-
phy both Phares and Lyons were to report to the job on June
29.
Business Manager Hugo Zahn testified that employees ob-
tain referrals from the hall as a result of an employer’s re-
quest. Normally an employer makes its request by telephone.
Whoever from the hall takes the employer’s telephone call,
fills out a requisition for the job, and then the business man-
ager or one of the business agents actually refers the em-
ployee out. At the time at which the call comes in, the date,
the time the call comes in, the employer’s name, the work
for they are requesting the employee, the date and time that
the employee is to report and the location of the job are
completed on the requisition form. Until a referral is actually
made, the employee’s name and the referring business
agent’s name or initials do not appear on the requisition for
referral.
Zahn testified that when an employer’s call comes in and
a requisition for job referral form is completed, the requisi-
tion for referral is put in a drawer and kept there until about
3 p.m., at which time the Union begins contacting its mem-
bers and making referrals. Once the requisition for referral
form is completed and filled out and the referral is made, the
form and the employee’s qualification record are laid aside
until all the jobs for the day are filled. Then the information
is transferred to another record which contains the name of
the employee who was sent, the employer to whom he was
sent, for what job he was sent, and the date and time that
he was sent. The information is also put on the employee’s
employment record. The requisition for job referral form is
then put on a clipboard with two posts which is kept in the
referral office. The referrals are kept on that clipboard until
they build up about 2 inches and then they are transferred
to a box.
Zahn had no explanation why the purported referral of
Phares was not supplied to Respondent in connection with
the sworn answer to interrogatories he filed in the Federal
lawsuit except that it may have been overlooked. Likewise
he had no explanation for why the record of the referral does
not appear on any of the other union records.
I do not doubt the authenticity of General Counsel’s Ex-
hibit 5(t), the partially filled out referral form, nor do I doubt
Phares’ testimony about how he received a copy of this
form. I do not doubt that Phares reported to Respondent’s
jobsite on June 29 seeking employment as the crane operator
in response to the referral request. Whether this was done
with or without Murphy’s approval, I am not sure. However,
what I object to in this matter is the attempt by the Union
and Phares to pass General Counsel’s Exhibit 5(d) off as a
legitimate referral prepared in the regular course of business.
It obviously was not and the attempt to make it seem so calls
into serious question the credibility of the witnesses for the
Charging Party on the remainder of the evidence offered
about refusal to rehire on June 29 which is set out below.
Phares testified that on June 29 he reported to work at Re-
spondent’s job at 6:45 a.m. and had a conversation with
Mike Anderson in the office. Harold Davis was also present
during this conversation. According to Phares, Anderson told
Phares he could not work for him because he had a claim
against them. When Phares asked Anderson if he was refus-
ing to hire him, Anderson stated that the crane was not fixed.
Phares then went to the union hall and reported out of work.
He testified that he told Murphy about what had happened
and Murphy replied that he had expected it. According to
Phares, at about 7:50 a.m. on June 29 while he was at the
union hall, the hall received another request from Respondent
for a crane operator.
Harold Davis testified that in the Anderson-Phares’ con-
versation on June 29, Anderson told Phares that he could not
work there. Phares asked if he was refusing to hire him and
Anderson said, ‘‘Yes, you can’t work for the Company, you
got a lawsuit against the Company, and we can’t hire you.’’
Charlie Murphy testified that at 7:50 a.m. on June 29 he
received a call from Mike Anderson. According to Murphy,
Anderson said they could not hire Phares because he filed
charges against the Company. Murphy told Anderson that he
would send him another operator. Murphy then referred
Charlie Copley to operate the Northwest crane for Respond-
ent.
Murphy testified that on June 29 after his conversation
with Mike Anderson, he also received a telephone call from
Levell. According to Murphy, Levell asked why they sent
Phares back to the job, and Murphy replied that Phares was
still signed out to the Company and was a qualified crane
operator. Levell told Murphy that he had told him in a pre-
vious conversation not to send Phares to the job, that they
1022 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 Again, Phares did not ask and the Union did not file a grievance
over the refusal to rehire Phares. For that matter, Murphy did not
even seem to argue with Respondent over the refusal which also
makes me doubt the truthfulness of the Charging Party’s evidence
about the events of June 29.
9 Reinstatement as of this date is unlikely as Respondent’s project
in Springfield, Illinois, is likely finished.
would call Phares back when they were ready, and that
Phares’ crane was still not repaired.
Mike Anderson testified that on approximately June 29, he
requested the Union refer to it a person qualified to operate
a magnet crane. Anderson testified that it was at this time
at which he had called for a magnet crane operator that
Phares came to the jobsite. According to Anderson, Phares
appeared on the jobsite on June 29, and he asked Phares
what he was doing there. Phares replied that he had come
to run the crane. Anderson testified that he told Phares that
Phares had previously told Levell that he could not run a
magnet crane. Anderson testified that he said that he could
not put Phares to work because his crane was still broken.
According to Anderson, Phares asked if this was because of
the charge he filed and Anderson said no. Anderson was
aware that Phares had filed such a charge.
On June 29, Phares signed the out-of-work list at the
union hall and on July 2, was referred to another employer.
This case turns on credibility. Murphy, Phares, and Davis
all testified that Anderson gave as the reason for not rehiring
Phares his filing of a charge with the Board. Murphy’s ini-
tials appear on General Counsel’s Exhibit 5(d) and he does
not deny that they are his. Thus, he played a part in its prep-
aration and the introduction of false evidence in this pro-
ceeding. He also alleges that a damaging conversation with
Levell took place on May 30, a date Levell was in Wash-
ington, D.C. Phares testified that he told Murphy about the
reason for the refusal to rehire on June 29, but Murphy testi-
fied that he learned of it in a call from Anderson. The Gen-
eral Counsel asserts that the testimony of Harold Davis
should be believed because he is still an ‘‘employee’’ of Re-
spondent. The truth is that at the time of hearing the Re-
spondent’s project was almost complete and Davis was, is,
and will remain dependent on the Union for future work.
Anderson appeared credible in his testimony about the
conversation he had with Phares on June 29, and for that rea-
son and because I have reason to doubt the credibility of the
Charging Party’s witnesses, I credit his testimony about this
event.8 Consequently, I do not find that Respondent gave as
a reason for not rehiring Phares his filing of a charge with
the Board. However, as noted above, Respondent was con-
tinuing to violate the Act by continuing to fail to recall
Phares when a position for which he was qualified became
available on May 30. There is no reason Phares could not
have been recalled to the vacant oiler position for which a
referral was requested on June 28, even if Respondent did
not believe him qualified to run a magnet crane. Thus, Re-
spondent again demonstrated its unwillingness to reemploy
Phares for a position for which he was qualified without giv-
ing any reason for its unwillingness.
CONCLUSIONS OF LAW
l. The Respondent, Anderson Excavating and Wrecking
Company, is an employer engaged in commerce within the
meaning of Section 2(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. The Respondent engaged in and continues to engage in
conduct in violation of Section 8(a)(1) and (3) of the Act by
refusing to recall its employee George Phares from layoff on
May 30, 1990, and thereafter to perform work for which he
is qualified.
4. The Respondent did not engage in the other unfair labor
practices alleged in the consolidated complaint.
5. The unfair labor practices which Respondent has en-
gaged in are unfair labor practices affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in and is en-
gaging in unfair labor practices within the meaning of Sec-
tion 8(a)(1) and (3) of the Act, it is recommended that it be
ordered to cease and desist therefrom, and take certain af-
firmative action which is necessary to effectuate the policies
of the Act.
As the Respondent has unlawfully refused to recall its em-
ployee George Phares from recall since May 30, 1990, and
continuing to date, it is recommended that Respondent be or-
dered to offer Phares immediate reinstatement to his former
position, or if that position no longer exists to a substantially
similar position,9 and make Phares whole for any loss of
earnings or any other benefits he may have suffered as a re-
sult of Respondent’s unlawful discrimination against him, to
be computed in the manner described in F. W. Woolworth
Co., 90 NLRB 289 (1950), with interest as prescribed in New
Horizons for the Retarded, 283 NLRB 1187 (1987).
[Recommended Order omitted from publication.]
Deborah A. Fisher, Esq., for the General Counsel.
Gerald Tockman, Esq., of St. Louis, Missouri, for the Re-
spondent.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
WALLACE H. NATIONS, Administrative Law Judge. On
May 17, 1991, I issued a decision finding that Anderson Ex-
cavating and Wrecking Company (Respondent), inter alia,
violated Section 8(a)(3) of the National Labor Relations Act
(Act) by refusing to recall Charging Party George Phares
from layoff. The Respondent filed exceptions and a sup-
porting brief, and the General Counsel filed a brief in sup-
port of my decision.
On November 25, 1991, the Board issued an order re-
manding this proceeding to me to make further credibility
findings and to modify, if necessary, any findings of fact,
conclusion of law, or recommended action.
I. DIRECTION AND ACTION ON REMAND
A. The Board’s Direction on Remand
In its Order remanding, the Board recites:
1023ANDERSON EXCAVATING CO.
Union Business Representative Charlie Murphy testified
that on May 30, 1990, he received a phone call from Re-
spondent Vice President Lanny Levell requesting an oiler.
Murphy allegedly reminded Levell that George Phares was
laid off from the Respondent’s employ and that Levell
should call Phares back for the oiler position. Levell alleg-
edly responded that he would not hire Phares as an oiler be-
cause he was an operator.
In section III,C, paragraph 1, of my decision, I stated that
although Levell did not deny the conversation because he did
not testify after Murphy, questioning by the General Counsel
revealed that Levell was in Washington, D.C., on May 30,
1990, and that ‘‘it is difficult to believe that he, rather than
Mr. Anderson [the Respondent’s job superintendent], called
the union hall to place a routine request for another oiler. In
any event, the fact remains that on May 30, an oiler was re-
quested and Mr. Phares was qualified to be an oiler.’’ Fur-
ther, in the penultimate paragraph of my decision, in the
course of discrediting Murphy’s testimony on another aspect
of this case, I stated: ‘‘He [Murphy] also alleges that a dam-
aging conversation with Mr. Levell took place on May 30,
a date Mr. Levell was in Washington, D.C.’’
In its exceptions, the Respondent argues, inter alia, that I
erred in failing to consider its argument that it had simply
followed the collective-bargaining agreement in requesting
that the Union make a referral for an oiler position and in
hiring the employee whom the Union referred. The Union re-
ferred employee Fickus and not Phares. The Respondent
points out that article III,A, paragraph 6, of the collective-
bargaining agreement requires that the Respondent accept a
referred member employee unless there is just cause to reject
him or her. We are unable to pass on the Respondent’s argu-
ment concerning the referral, however, because I failed to
make crucial findings about the alleged May 30, 1990 phone
conversation.
The Board has decided to remand this case to me for spe-
cific credibility resolutions as to the alleged May 30 con-
versation. Specifically, I am to determine whether the con-
versation took place and whether Murphy specifically stated
that Respondent should call Phares back to work as an oiler.
B. Directed Credibility Resolution
Because Levell was in Washington, D.C., on May 30,
1990, and it was the practice of the Respondent to request
employees from the union hall on a local basis, and because
of my doubts about Murphy’s credibility set out at pages 16–
20 of my original decision, I find that the conversation in
question did not take place.
C. Further Discussion of the Issues in Light of the
Order Remanding
I agreed at the hearing and I agree now with the Respond-
ent that if it requested an employee from the union hall it
was obligated to take the employee referred so long as the
employee was qualified for the job. I still contend that this
fact and the defense based on this fact make no difference
to the proper disposition of this case.
On May 30, 1990, the Union could not have referred
Phares out to the job as an oiler because he was already re-
ferred out to the job. He was technically at least still in Re-
spondent’s employ and subject to recall to fill any job open-
ing for which he was qualified, including that of oiler. Pursu-
ant to the Union’s rules governing referrals, Phares could not
be referred to any other job until he reregistered at the union
hall, an event which did not take place until late June. There-
fore, on May 30, the Union was obligated to refer someone
other than Phares to fill the requested oiler position if re-
quested by the Employer to do so.
However, the Respondent could have recalled Phares from
layoff to fill this position without asking for a further referral
from the union hall or without even notifying the Union. As
I found at pages 14–16 of my original decision, it was Re-
spondent’s consistent practice to do just that. Respondent
regularly recalled employees from layoff to perform duties
other than those originally assigned, and transferred employ-
ees from job to job to avoid their layoff in furtherance of
its admitted goal of keeping its crew together. It was the
variance from this past practice in Phares’ case, and thus dis-
parate treatment of Phares, that I found to be unlawful be-
cause of Respondent’s unlawful motivation. There was no
reason advanced by Respondent for not recalling Phares that
was not contradicted by past practice. There was no legiti-
mate business reason advanced for not recalling Phares rather
than seeking the referral of a new employee. Certainly, the
collective-bargaining agreement did not in any way bar the
recall of Phares to fill the oiler position on May 30.
I found in my earlier decision, and I find again, that Re-
spondent refused to recall Phares from layoff to fill the oiler
position on May 30, 1990, because of its displeasure with
Phares’ protected activities and for no other reason.
II. CONCLUSIONS AND RECOMMENDED DISPOSITION OF
THIS PROCEEDING
Pursuant to the direction of the Order Remanding, I have
made the requested credibility resolution. With addition of
this credibility resolution, I adopt by reference, without
modification, the findings of fact, conclusions of law, rem-
edy, and recommended Order set forth in my decision issued
May 17, 1991.
[Recommended Order omitted from publication.]