S. A. Healy Co.

National Labor Relations Board - Board Decisions

Jun 25, 1968

172 N.L.R.B. 1297 (N.L.R.B. 1968)

S. A. HEALY CO.
S. A. Healy Co ., and/or Tom M. Hess, Inc., and
Ralph H . Capehart . Case 27-CA-2366
June 25, 1968
DECISION AND ORDER
By MEMBERS FANNING, JENKINS, AND ZAGORIA
On April 12, 1968, Trial Examiner James R.
Webster issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices in violation of the National Labor Rela-
tions Act, as amended, and recommending that the
Respondent cease and desist therefrom and take
certain affirmative action, as set forth in the at-
tached Trial Examiner's Decision. Thereafter, the
Respondent filed exceptions to the Trial Examiner's
Decision and a supporting brief. The General
Counsel filed an answering brief.
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
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and brief,
and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner, and orders
that the Respondent, S. A. Healy Co., McCook, Il-
linois, and/or Tom M. Hess, Inc., Sacramento,
California, their officers, agents, successors, and as-
signs, shall take the action set forth in the Trial Ex-
aminer's Recommended Order.
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
JAMES R. WEBSTER , Trial Examiner : This case
with all parties represented was heard in Salt Lake
City, Utah, on January 16 and 17, 1968, on the
complaint by the General Counsel and answer of S.
A. Healy Co., and/or Tom M. Hess, Inc., herein
1297
called Respondent. The complaint was issued on
November 9, 1967, upon a charge filed on Sep-
tember 21, 1967. The complaint alleges that
Respondent terminated the Charging Party, Ralph
H. Capehart, on or about September 18, 1967,
because of his concerted activities and his union ac-
tivities and that Respondent has otherwise
restrained and coerced employees, thereby violat-
ing Section 8(a)(1) and (3) of the National Labor
Relations Act, herein called the Act.
The General Counsel and Respondent have filed
briefs herein and they have been carefully con-
sidered. Upon the entire record and my observation
of the witnesses, I hereby make the following-
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
S. A. Healy Co. is an Illinois corporation with its
principal place of business in McCook, Illinois. It is
engaged in heavy highway construction and
operates in several States including Utah. In the
course and conduct of its business operations, it an-
nually performs services valued in excess of
$50,000 in States other than the State of Illinois.
Tom M. Hess, Inc., is a California corporation
with its principal place of business in Sacramento,
California. It is engaged in heavy highway construc-
tion in several States including Utah. In the course
and conduct of its operations, it annually performs
services valued in excess of $50,000 in States other
than the State of California.
Since July 1967 these two companies have been
engaged as a joint venture in the grading and con-
struction of approximately 22 miles of Interstate
Highway 80 near Knolls, Utah. This work has been
performed for the State of Utah and has a value in
excess of $4 million.
I find that S. A. Healy Co., and Tom M. Hess,
Inc., are employers engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the
Act
11. THE LABOR ORGANIZATION INVOLVED
Teamsters, Chauffeurs, Warehousemen and Help-
ers, Local No. 222, herein referred to as the
Union, is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Preliminary Statement and Issues
Since August 1, 1967, the Respondent and the
Union have been parties to a collective-bargaining
agreement covering rates of pay, wages, hours of
employment, and other terms and conditions of em-
ployment of truckdrivers employed by Respondent
in its Highway 80 project.
172 NLRB No. 43
1298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The principal issue in this case is whether or not
Ralph H. Capehart , a truckdriver for Respondent
and the Charging Party, was discharged on Sep-
tember 18, 1967, for engaging in a work stoppage
and other union or concerted activities , or whether
he was terminated for refusing to work in connec-
tion with an individual grievance that he had with
Respondent . It is also an issue as to whether or not
Foreman Jess Vasquez threatened the transfer or
discharge of Capehart for union or concerted ac-
tivity.
B. Statement of Facts
Capehart started to work for Respondent on the
Highway 80 project on July 25, 1967, as a dirt
truckdriver. After about 2 weeks he requested and
was transferred to a water truck. During his period
of employment on the water truck Capehart had a
series of grievances with Respondent in regard to
the operation of this truck. His first grievance con-
cerned the rate of pay on the water truck. He was
receiving an hourly rate of $5.23, which was the
rate being paid on the dirt trucks. He contended
that the water truck had a capacity in excess of
6,000 gallons and that the applicable schedule of
pay for a truck of this capacity was $5.53 per hour.
He based this on a sticker on the side of the truck
indicating the truck's capacity. About the middle of
August 1967 he mentioned this to Foreman Jess
Vasquez and Vasquez told him that the bill of sale
from the manufacturer of the truck specified that it
was a 5,000-gallon truck. When Union Representa-
tive Scott Haslam next visited the jobsite, Capehart
asked him what the pay rate on the water truck
should be. Haslam took the matter up with Superin-
tendent Don Wright. Wright asked that the truck
be weighed to determine the actual rate of pay due.
Capehart loaded the truck with water and took it to
a public scale for weighing . For some reason that is
not clear, he was not satisfied with the weighing of
the truck. He dumped the load of water he had on
the truck, picked up another load, and had the
truck weighed a second time. On this weighing it
was determined that the truck held 6,650 gallons of
water. He took the weight slips to Foreman
Vasquez and he and other drivers who had driven
the truck before Capehart received retroactive pay
at the rate called for by the contract for trucks of
this capacity. Vasquez showed some irritation over
' On direct examination Vasquez denied telling Capehart that if he found
out who complained to the Union on this matter he would send him down
the road , and as to any such conversation with Killion he testified, "I don't
recall it offhand , no I don 't remember any conversation " On cross-ex-
amination , when he was questioned again on the matter he testified, "1
don't recall I do, now that you mentioned it, I recall asking them if they
had anything to do with the union coming out, and they said no I re-
member that now " I credit the corroborative testimony of Capehart and
Killion as found above
As to Vasquez' initial conversation with Capehart on the matter, he
testified he told Capehart that he was bound and determined to get the
weight up there but that " that was all that was said " I credit Capehart's
testimony as to remarks made in this conversation
the matter by telling Capehart, who had weighed
the truck twice, that he was bound and determined
to get the higher rate, that the Company wanted to
pay all drivers at the same rate so that they could
be switched from one truck to another and that as
Capehart was not satisfied with this uniform rate,
he would be taken off this truck and would not get
the benefit of the higher rate because he com-
plained to the Union on the matter. Capehart, how-
ever, was not taken off the water truck and con-
tinued to drive it during his employment.
On the day following the weighing of the truck,
Foreman Vasquez told Capehart and a group of
other drivers that he or Philip Killion , who had
driven the truck before Capehart, had called the
business agent of the Union to come to the project
on the matter and that when he found out which
one of them had done so he would send him down
the road. Both Capehart and Killion denied that
they had called the business agent to come to the
project t
A few weeks later and at approximately 3 a.m.,
Sunday morning, September 10, 1967, Foreman
Vasquez visited the Hacienda Bar in Wells, Nevada
Capehart and driver Ralph Hendricks were there.
Vasquez took the occasion to advise Capehart as to
his standing with Respondent. He told Capehart
that he was in trouble with Respondent over the
matter of the rate on the water truck and that he
had orders from Superintendent Don Wright to fire
him, but that he would see to it that Capehart
received a transfer to a dirt truck 2
Another grievance or complaint that Capehart
had concerned the stoplights and the turn signals
on the water truck; they did not operate He re-
ported this to one of Respondent' s mechanics in
August 1967 but the mechanic was busy working
on other trucks at the time. Capehart attempted to
replace the light bulbs but found that due to corro-
sion in the units it would be necessary to replace
the entire taillight assemblies. The mechanic stated
that there were none in stock and that they would
have to be ordered. Capehart continued to operate
the truck while awaiting the receipt of new taillight
parts.
Capehart 's next complaint or grievance had to do
with the condition of the truck's fifth wheel plate.
The fifth wheel plate is a metal plate under the
trailer approximately 30 inches square with a pin in
its center which attaches the trailer to the tractor.
I Hendricks verified Capehart 's version of the conversation Vasquez
testified that he told Capehart that "he ought to be a little more careful
with it (the water truck] because [Superintendent ] Don Wright had told
me that he was on probation and I thought that this was a good time to give
him a clue that he should be a little more careful in his duties " Vasquez de-
nied telling Capehart that Wright told him to fire Capehart , and I find that
Wright had not told Vasquez that he should fire Capehart, but Wright had
told Vasquez that he had observed Capehart's truck unattended and over-
flowing on two occasions while being loaded with water Vasquez did not
mention this matter to Capehart on this occasion or at any time Vasquez
testified that he considered Capehart to be one of his best drivers I credit
the testimony of Capehart and Hendricks as related above
S. A. HEALY CO.
On about August 30 , 1967, Capehart noticed
cracks at each corner of the fifth wheel plate. On
the next day he drove the truck to Respondent's
shop and reported this condition to the mechanics
and one of them welded the cracks in the plate. On
the next day, Capehart noticed that the welds had
broken . On September 7, 1967, he took the truck
again to the mechanics and the cracks were
repaired a second time . Two or three days later
Capehart checked the fifth wheel plate and noticed
that the welds had broken again . Also, another
crack had developed and this crack extended
toward the middle of the plate where the pin is
located . Because the trailer was attached to the
tractor, Capehart was unable to see how far the
crack extended . He reported this condition to a
mechanic but the mechanic was busy preparing
another truck to serve as a water truck . He told
Capehart to bring his truck in the following day. On
the following day another crack developed. This
was Friday , September 15, 1967. This crack also
went in toward the pin in the center of the plate
Capehart was concerned that if these two cracks
which headed toward the pin should circle it, this
condition might cause the trailer to separate from
the tractor He also reported this condition to
Truck Foreman William Smelden. Smelden sug-
gested that he write an order up for the repairs
needed . Capehart did so.
On Sunday , September 17, 1967, seven of the
drivers met with Union Representative Scott
Haslam at his residence in Salt Lake City. They
presented to him and discussed approximately 17
items that they regarded as grievances . These were
presented to the union representative in writing and
signed by these drivers. Haslam told them that the
Respondent had signed a short -form agreement and
that it did not contain a grievance procedure but
that if they caused the job to be shut down on any
matters, the Company would call him and he would
go out to the project and straighten the matters out.
Monday morning, September 18, 1967, about
5.30 a.m ., Capehart reported for work. He ex-
amined his truck and found that it had not been
repaired . It was dark and he remained by his truck
waiting for a mechanic . Approximately 6.15 a.m.
Superintendent Wright drove up and asked him
why he was not working Capehart replied that his
truck was broken down and had not been repaired
and that he had written it up for repairs on Friday. ,
Wright then proceeded to locate a mechanic. He
found mechanic Lawrence White who was at that
time in the process of getting heavy equipment
started into operation . Wright took White to the
water truck and asked him if he thought the truck
could operate that day. It was Wright 's intention
that the truck be put into operation for that day
and then fixed that evening . Capehart then stated
he would be the one to determine whether the
truck operated . White observed that there was a
crack in the fifth wheel plate which was headed
toward the center of the plate , but being connected
1299
to the tractor and with grease on it, it was difficult
for him to see the extent of the crack and he would
not make a decision as to whether the truck could
be driven in that condition . He asked Wright to
make the decision . Wright then told him to repair
the fifth wheel plate. Wright told Capehart, "You
might as well go back to your trailer until we get it
fixed and we will notify you " He told Capehart
that his pay would not start until the truck is in
operation . One of the mechanics asked Capehart to
drive the tractor out from underneath the trailer
Capehart refused to do so . He testified that the
reason for his refusal was because he was not on
duty and a mechanic could drive the tractor away
from the trailer as easily as he could.
About 6:15 a.m. Union Representatives Scott
Haslam and Lafe Case arrived at the jobsite, and by
6:30 most of the drivers had arrived at work. The
men intended not to start their work until the
grievances were corrected. The pay for the drivers
starts at 7 a.m. but Respondent wanted them to
take their trucks to the loading area by 7 a.m.,
which meant a drive of approximately 8 miles. This
was one of the grievances that the union represen-
tatives discussed with Respondent that morning.
Other matters discussed included the roughness of
the service or haul road, the greasing of the equip-
ment, safety features such as stoplights, brakes,
cracked windshields, etc. Corn agreed to rectify
these matters. The union representatives then re-
ported to the men that their grievances would be
taken care of, and that the men were to go to work.
The men proceeded to work and Capehart went to
a nearby cafe waiting for the repair to his truck.
Later he drove along the work area and observed
that the trucks on the service road were creating
considerable dust and that in his judgment driving
conditions were hazardous. He returned to the cafe,
called the highway patrol in Salt Lake City, and re-
ported that there was a death trap on Highway 80,
that Respondent 's equipment was being run with
defective brakes, lights, and turn signals, and so
forth; he suggested that they come out and do
something before a death occurred.
At approximately 9:10 a.m someone reported at
the cafe that an accident had occurred about half a
mile down the highway; a safety engineer for the
State of Utah was killed in the accident. Capehart
went to the scene of the accident. The vehicle in
which the safety engineer was riding was on the
wrong side of the highway and had collided with
one of Respondent's trucks. The empty trucks
returning to the loading area were stopped on the
highway behind the truck involved in the accident
Loaded trucks were going in the opposite direction
and were using the service road next to the
highway. The drivers agreed that because of the ac-
cident and the dusty condition that existed they
would cease work until a union representative
returned to the jobsite and handled the matter.
Respondent 's area manager , William Corn , and Job
Superintendent Wright were there. Corn noticed
1300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the service or haul road along the highway was
not wet as it normally should have been, and
Wright told him that Capehart had refused to drive
the water truck. A representative of the State of
Utah was present at the scene of the accident and
told Corn that an investigation of the accident
would be made and that it was a practice in Utah to
shut a job down where there had been a death on
the project.
In the meantime Capehart's truck was repaired.
When the trailer and tractor were disconnected
mechanic White observed that the crack going
toward the center of the fifth wheel plate did not
extend toward the center of the plate any farther
than could be observed when the trailer and the
tractor were together. The mechanic testified that it
was his opinion that because of the position of the
crack the vehicle could have been driven without
immediate danger provided periodic checks were
made thereafter. He proceeded, however, to weld
the cracks in the fifth wheel plate. Also mechanic
Graham Porter testified that he observed the cracks
in the plate after it was removed from the trailer
and did not regard them to be serious.3
About 10:30 or 11 o'clock that morning
Foreman Smelden went to the scene of the accident
and notified Capehart that his water truck was
ready to operate. Capehart replied that the job was
shut down. Smelden reported this to Corn. Corn
asked Capehart what was the trouble with his truck
and why he was not driving it. Capehart replied that
he was not driving the truck because he thought the
job was shut down. Corn asked him if he had not
quit earlier in the day, as Corn had this understand-
ing from conversations earlier with Wright and
Smelden regarding Capehart's refusal to drive his
truck. Capehart replied that he had not quit but
that he was just not driving the truck because of a
picket line. Corn turned to the other drivers and
asked if there was a picket line. No one made a
reply and finally he turned to driver Bill Nafus who
had been a spokesman for the drivers on previous
occasions. The drivers acknowledged that he was
their spokesman. Corn asked Nafus what the
problem was, and Nafus replied that there was a
dead man on the road and that they had some other
problems. Corn asked that they discuss them and
Nafus replied that they had sent for the union
representatives. Corn then stated that a state
representative had asked him to shut the job down
and that there would be no more work that day
because of the accident and that the men should
return their trucks to Respondent's yard.
The wind was blowing quite hard and was picking
up dust from the service road and the desert sur-
rounding the area and blowing it across the
highway. A state representative asked Corn to see
what could be done to control the dust as much as
possible to protect the public. As Capehart refused
to drive his water truck, another driver was asked
to drive it. Also Respondent put into operation
another and older water truck which broke down
after one trip and had to be repaired.
After the drivers returned their trucks to the-yard
they went to a nearby cafe and awaited the arrival
of the union representatives. While at the cafe and
about midday, one of the drivers, Philip Killion,
talked with Union Representative Scott Haslam on
the telephone and asked him if it was all right for
Capehart to drive the water truck under the cir-
cumstances. The message was relayed to Capehart
that it was permissible for him to do so. Capehart
got into his car and drove to Respondent's yard to
report that he was ready to go to work, but was
unable to find Corn or Wright or anyone in supervi-
sion. He told Jerry Hess, a son of one of the
owners, that he would be waiting in the cafe.
About 1.30 p.m., September 18, Union
Representative Haslam arrived at the cafe and
discussed the situation with the drivers. He then
met with Corn and Wright. Haslam told them that
the Union had not set up a picket line or strike and
he asked Respondent not to take any action against
the men because they had stopped work that morn-
ing. Corn agreed to this. As to Capehart, Corn told
the union representative that it was his understand-
ing that Capehart had quit. Haslam stated that he
had not quit. Corn agreed to review the matter and
make adjustments if there were any extenuating cir-
cumstances. Also Corn stated that Respondent was
thinking of oiling the service road to eliminate the
dust. Haslam reported to the drivers the results of
the meeting and told the men that there would be
no reprisals taken against them.
That afternoon Corn discussed with Wright the
status of Capehart. He concluded that Wright had
given Capehart a direct order and that Capehart
had been insubordinate. Since he had promised the
union representative that no reprisals would be
taken against the men because of the work stop-
page which occurred after the accident, Corn
testified that he wanted to be sure that this was not
the reason for Capehart's discharge. Wright also
told Corn that after he gave Capehart an order to
take the truck out that morning, Capehart not only
refused to do so but also stated that he would be
the judge and not the Company as to whether the
truck was in condition to operate. Corn did not go
into the details of the condition of the truck. His
approval on discharges is normally not necessary
but under the circumstances of his promise to
Union Representative Haslam, he wanted to review
the matter. He attempted to ascertain the nature of
the damage to the truck but the mechanics had left
and he was unable to get this information from
them.
About 9:15 p.m. that evening, Capehart, who
lives in a trailer near the project, was in the cafe
9 Shortly after Thanksgiving 1967, the fifth wheel plate on this trailer
was replaced
S. A. HEALY CO.
located near the project. Superintendent Wright
came in and gave Capehart a dismissal notice and
his paychecks. Wright stated that Capehart's ser-
vices were no longer required. Capehart inquired as
to the meaning of the remark "unsatisfactory" on
the termination notice. Wright replied that it was
self-explanatory and that his services were un-
satisfactory.
C. Conclusions
It was a duty of the driver of the water truck to
report to work earlier each day than the other
truckdrivers and to spread water on the service or
haul road before the dirt trucks started using it.
Because of the cracks in the fifth wheel plate, the
reappearance of these cracks after repairs, and the
appearance of additional cracks, Capehart con-
sidered his truck unsafe to drive. In order to do his
job expeditiously, he operated the truck at times at
speeds of 65 miles per hour or more. He discussed
the condition of the fifth wheel plate with Foreman
Smelden on Friday evening, September 15, and a
work order for repairs on the truck was made out.
Unless the truck were repaired on an evening or
during the weekend, it would have to be taken out
of operation while the dirt trucks were hauling dirt,
for repairs to be made. A repair of the fifth wheel
plate in this instance would require about 3 hours.
When Superintendent Wright learned of the
situation on Monday morning, he was in a quandary
as to what to do. The truck was urgently needed to
spread water on the service road to keep down the
dust. He hoped that the truck could be operated
that day and be repaired that evening, but
mechanic White would not make a decision that
the truck could be operated with the fifth wheel
plate in the condition he observed. He left it to Su-
perintendent Wright. Capehart, however, told
Wright that it was his (Capehart's) decision to
make as the driver of the truck.
The drivers planned not to go to work that morn-
ing, September 18, until the union representatives
met with Respondent and got their grievances, in-
cluding safety items on vehicles, remedied.
Whether or not Capehart would have started
operating his truck that morning before the union
representatives met with Respondent, if it had been
repaired, is not entirely clear. At least he reported
ready for work at 5:30 a.m., and presumably would
have started watering down the service road if his
truck had been repaired. An issue in this case is
whether or not Capehart was discharged for his
refusal to take his truck out that morning and
because of his statement to Wright that he would
"There is no no -strike clause in the contract , furthermore , Manager
Corn agreed not to take any reprisals against the drivers for their work
stoppage after the accident
On cross-examination Wright was asked "Why did you tell Mr
Capehart you would notify him when the truck was repaired when in fact
you decided to fire him," and he answered equivocally as follows
1301
be the one to decide if the truck were in condition
to operate, or whether he was discharged for his
refusal to operate the truck later in the day after a
work stoppage had been instituted by the drivers. If
it is the latter, then his discharge would have been
caused by his participation in protected concerted
union activity and a violation of the Act.' If it is the
former, a further issue is presented as to whether
Capehart's refusal to work early that morning was
over an individual grievance or was part of a con-
certed plan of the drivers not to work until their
several grievances had been discussed by the Union
and the Company and corrected. It must be noted
here, however, that Capehart's grievance about the
fifth wheel plate was not on Union Representative
Haslam's agenda as a separate and specific
grievance, although general safety conditions of
vehicles were.
Wright contends that his decision to terminate
Capehart was made that morning when Capehart
told him that he would decide, and not manage-
ment, whether or not the truck should be drivem. If
Wright had in fact reached the conclusion at that
time to discharge Capehart, then it is somewhat in-
congruous that he would have told Capehart to
return to his residence trailer and await a call for
work when the truck was repaired.' Of course, it is
not unreasonable for a supervisor to continue the
status quo in order to give himself an opportunity
to reflect on an inclination arrived at while in a
state of annoyance. If so, then when was that reflec-
tion completed. He was already annoyed with
Capehart over the matter of the wage increase on
the water truck, and, also, because Capehart had
on two occasions left his water truck unattended
while being loaded, resulting in its overflowing.
Since Capehart was not told of his discharge until
9:30 p.m. on September 18, and since Corn' s initial
understanding from Wright and Smelden was that
Capehart had quit (thus, not discharged), and since
Capehart was asked to drive his truck at about 11
a.m., after it had been repaired, I cannot conclude
that Wright had finalized his decision to discharge
Capehart until after Capehart's refusal to drive the
truck after it had been repaired and after the ac-
cident. If Capehart had driven the truck after the
accident as requested, it appears that he would not
have been discharged. 1, therefore, find that it was
his participation in the work stoppage with other
drivers after the accident that was the proximate
cause of his discharge.
Thus, although it is not necessary to resolve the
second issue regarding whether Capehart's refusal
to drive the truck earlier in the morning was part of
a concerted plan or was individual action, I find
Mr Capehart had told me that he was going to make the decision on
the truck running I told Mr Capehart to go to his trailer, and I told
him I would notify him, we'd notify him when the truck was ready to
go In the union contract , the company must pay the men a certain
portion for show -up time, a certain portion for the day
1302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the preponderance of the evidence indicates
that it was in fact part of a concerted plan. I base
this on the following: Capehart was annoyed by cer-
tain conditions on his truck that concerned its
safety, such as stoplights, turn signals, and cracks in
the fifth wheel plate. He with six other drivers met
with Union Representative Haslam on Sunday, Sep-
tember 17, on grievances, including safety of vehi-
cles. Haslam testified that he recalled Capehart
mentioning his problem on the stoplights. The
drivers agreed not to start work on the morning of
September 18 unless the job was straightened out.
Union Representative Haslam came to the project
before starting time to discuss the grievances with
Respondent. He told the men that morning to go to
work and that Respondent would take care of their
problems. The fact that Capehart called the
Highway Patrol and reported that vehicles were
being operated with defective safety devices in-
dicated his concern with the correction of their
grievances before operation of the trucks. Thus, I
conclude and find that Capehart's refusal to drive
his truck on both occasions on September 18
represented his contribution to and participation in
concerted action by the drivers as a means of
getting grievances rectified.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with its opera-
tions described in section 1, above, have a close, in-
timate , and substantial relationship to trade, traffic,
and commerce among the several States and tend
to lead to labor disputes burdening and obstructing
commerce and the free flow thereof.
Upon the basis of the foregoing findings of fact
and upon the entire record in this case, I make the
following:
CONCLUSIONS OF LAW
1. Respondent , S. A. Healy Co., and/or Tom M.
Hess , Inc., is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of
the Act.
2. Teamsters, Chauffeurs, Warehousemen and
Helpers, Local No. 222, is a labor organization
within the meaning of Section 2(5) of the Act.
3. By statements of Foreman Jess Vasquez in
August 1967 threatening Capehart with transfer to
a different truck on which the wage rate was less
and by Foreman Vasquez' threat of discharge of
Capehart made to him on September 10, 1967,
because of his activities to establish a new wage
rate on his truck through union intervention,
Respondent has interfered with , restrained, and
coerced employees in violation of Section 8(a)(1)
of the Act.
4. By discharging Ralph Capehart on September
18, 1967, because of his participation in concerted
union activities , Respondent has discriminated
against him in violation of Section 8(a)(3) and (1)
of the Act.
5. The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and
(7) of the Act.
V. THE REMEDY
Having found that Respondent engaged in certain
unfair labor practices, I shall recommend that it
cease and desist therefrom and that it take certain
affirmative action which I find appropriate to
remedy and to remove the effects of the unfair
labor practices and to effectuate the policies of the
Act.
I shall recommend that Respondent offer to
Ralph H. Capehart immediate and full reinstate-
ment to his former or substantially equivalent posi-
tion without prejudice to his seniority or other
rights and privileges, and that Respondent make
him whole for any loss of earnings suffered by him
by reason of his discharge by payment to him of a
sum of money equal to that which he normally
would have earned from the date of the discrimina-
tion to the date of his reinstatement or of the
completion of Respondent's highway construction
operations in the State of Utah, whichever is earli-
er, less net earnings during such period, in ac-
cordance with the Board's formula set forth in F.
W. Woolworth Company, 90 NLRB 289, together
with interest at the rate of 6 percent per annum as
prescribed in Isis Plumbing & Heating Co., 138
NLRB 716.
Upon the basis of the foregoing findings of fact
and conclusions of law and the entire record, and
pursuant to Section 10(c) of the Act, I hereby issue
the following:
RECOMMENDED ORDER
S. A. Healy Co., and/or Tom M. Hess, Inc., their
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening employees with transfer to less
desirable jobs because of their union activities.
(b) Threatening employees with discharge
because of union activities.
(c) Discouraging membership in Teamsters,
Chauffeurs, Warehousemen and Helpers, Local No.
222, or any other labor organization of their cho-
ice, by discharging employees or in any other
manner discriminating against employees in regard
to hire or tenure of employment or any terms or
conditions of employment.
(d) In any like or related manner interfering
with , restraining , or coercing employees in the ex-
ercise of their rights guaranteed in Section 7 of the
Act.
2. Take the following affirmative action:
(a) Offer to Ralph H. Capehart immediate and
full reinstatement to his former or substantially
S. A. HEALY CO.
equivalent position, without prejudice to his
seniority or other rights and privileges, and make
him whole for any loss of earnings he may have suf-
fered as a result of the discrimination against him,
in the manner set forth in the section of this Deci-
sion entitled "The Remedy."
(b) Preserve and, upon request, make available
to the Board or its agents, for examination and
copying, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Recommended Order..
(c) Post at Respondent's bases for operation on
Highway 80 in the State of Utah copies of the at-
tached notice marked "Appendix."6 Copies of said
notice , on forms provided by the Regional Director
for Region 27, after being duly signed by Respon-
dent's representative, shall be posted by it im-
mediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices
to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by
any other material.
(d) Notify Ralph H. Capehart if presently serv-
ing in the Armed Forces of the United States of his
right to full reinstatement upon application in ac-
cordance with the Selective Service Act and the
Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
(e) Notify the Regional Director for Region 27,
in writing , within 20 days from the receipt of this
Decision, what steps have been taken to comply
herewith.'
6 In the event that this Recommended Order is adopted by the Board, the
words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner " in the notice In the further
event that the Board 's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order"
r In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director, in
writing, within 10 days from the date of this Order, what steps Respondent
taken to comply herewith "
APPENDIX
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board
and in order to effectuate the policies of the Na-
tional Labor Relations Act, as amended, we hereby
notify our employees that:
1303
WE WILL NOT threaten employees with
transfer to less desirable jobs because of their
union activities.
WE WILL NOT threaten employees with
discharge because of union activities.
WE WILL NOT discourage membership in
Teamsters, Chauffeurs, Warehousemen and
Helpers, Local No. 222, or any other labor or-
ganization of their choice, by discharging em-
ployees or in any other manner discriminating
against employees in regard to hire or tenure
of employment or any terms or conditions of
employment.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of their rights to self-organization,
to form labor organizations, to join or assist the
above-named Union, or any other labor or-
ganization, to bargain collectively through
representatives of their own choosing, and to
engage in other concerted activities for the
purpose of collective bargaining or other mu-
tual aid or protection, or to refrain from any or
all of such activities.
WE WILL offer to Ralph H. Capehart im-
mediate and full reinstatement to his former or
substantially equivalent position, without
prejudice to his senioriy or other rights and
privileges, and make him whole for any loss of
earnings he may have suffered aas a result of
the discrimination against him.
Dated By
S. A. HEALY CO., AND/OR
Tom M. HESS, INC.
(Employer)
(Representative ) (Title)
Note: We will notify Ralph H. Capehart if
presently serving in the Armed Forces of the
United States of his right to full reinstatement upon
application in accordance with the Selective Ser-
vice Act and the Universal Military Training and
Service Act, as amended, after discharge from the
Armed Forces.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, 260 New Custom House, 721 19th Street,
Denver, Colorado 80202, Telephone 297-3551.