S. A. Healy Co.

National Labor Relations Board - Board Decisions

Jun 17, 1969

176 N.L.R.B. 763 (N.L.R.B. 1969)

S. A. HEALY CO., AND/OR TOM M. HESS, 763
S. A. Healy Co ., and/or Tom M. Hess, Inc. and
Fred W. Hamilton
S. A. Healy Co ., and/or Tom M. Hess, Inc. and
William E . Smelden
S. A. Healy Co., and /or Tom M . Hess, Inc. and
William W . Nafus. Cases 27-CA-2462-2,
27-CA-2480, and 27-CA-2462- I
June 17, 1969
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND ZAGORIA
On December 27, 1968, Trial Examiner Howard
Myers issued his Decision in the above-entitled
proceeding , finding that the Respondent had not
engaged in certain unfair, labor practices and
recommending that the complaint herein be
dismissed in its entirety , as set forth in the attached
Trial Examiner ' s Decision . Thereafter , the General
Counsel filed exceptions to the Decision , together
with a supporting brief, and a Motion to Reopen the
Record in Cases 27 -CA-2462-2 and 27-CA-2462-1,
and the Respondent filed a brief in support of the
Decision , and a statement in opposition to General
Counsel ' s motion to reopen the record.'
Pursuant to Section 3(b) of the National Labor
Relations Act, as amended, the National 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 briefs, and
the entire record in this case, and hereby adopts the
findings , conclusions , and recommendations of the
Trial Examiner, except as modified herein.
Respondent ' s work on a highway project near
Knowles, Utah , closed down for an indefinite period
on or about December 25, 1967. It was later
determined that work would recommence around
February 20, 1968 . The complaint in this proceeding
alleges in part that Respondent discriminated
against job steward Fred W. Hamilton by refusing
him reemployment in February because of his union
activities.
The Trial Examiner found that Respondent's
refusal to recall Hamilton to work on February 15
and on February 20 was not due to any unlawful
discrimination , but was rather a decision based
solely on nondiscriminatory reasons.
At a meeting convened on February 15, 1968, for
the purpose of selecting 18 employees for recall,
Respondent ' s Office Manager LaVine, Truck
Foreman William Smelden , Grade Foreman Grant
Haslam , and the newly hired truck foreman, John
Tierney , were in attendance . The process utilized in
the selection was that LaVine read off all the names
of drivers on layoff from a payroll list , and Haslam
and Smelden indicated approval or disapproval of
the recall of the person named. LaVine and Tierney
did not take an active part in the selections, because
they were not acquainted with the various drivers'
qualifications.
The testimony of Grant Haslam and Smelden was
in part in direct conflict, and the Trial Examiner
credited that of Haslam in finding that it was
Smelden who objected to the recall of Hamilton
when his name was mentioned by LaVine, saying
that he would not have him back on the job.
Smelden further stated at this time, "You want
Hamilton back? He's caused him too much trouble
with the union representative."
As a result of this meeting, a list of the drivers to
be recalled was sent to the union business
representative for dispatch, and Hamilton, although
having been considered, was not included.
The Trial Examiner, in finding that Hamilton was
not a victim of discrimination in not being selected
on February 15, based his findings mainly on (1)
crediting the testimony of Grant Haslam over that
of Smelden, (2) crediting LaVine's version of a
conversation between LaVine and Union
Representative Scott Haslam concerning Hamilton,
(3) the fact that Coombs, another employee rejected
by Smelden on February 15, was recalled by Grant
Haslam when one of the original 18 selected was
unavailable, and (4) the fact that Smelden and
Hamilton had engaged in many heated arguments
over complaints made by the drivers of Smelden's
actions as foreman.
After a complete review of the record and the
findings of the Trial Examiner, we disagree with his
conclusion that Hamilton was not discriminated
against at the meeting on February 15 because of
his union activities, and that he was not excluded
from the list of those to be recalled for that reason.
It appears that Hamilton had been active as a
union steward on Respondent's job, and had
handled numerous grievances while in this capacity,
both directly with company representatives, and
through the union business representative, Scott
Haslam. We also note that he was responsible for
the work stoppage by many of Respondent's
truckdrivers in November 1967.
Considering all of the evidence, we find that Fred
W. Hamilton was considered for recall on February
15, following the shutdown of nearly 2 months; that
William Smelden was representing Respondent in
selecting those to be recalled; that Smelden objected
to the recall of Hamilton because of his union
activities; and, because of this objection by Smelden,
Hamilton was not included among the 18 drivers to
be recalled, in violation of Section 8(a)(1) and (3) of
the Act.'
'The General Counsel moved to reopen the record for the taking of
evidence relating to the credibility of William Lavine , the Respondent's
office manager. The motion is hereby denied . Lavine's testimony would
not have affected the conclusions stated herein , and we have not relied
upon it in reaching these conclusions.
'In light of our fording that Hamilton was not selected for recall on
176 NLRB No. 95 .
764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A further contention of the General Counsel is
that employee William Nafus was a victim of
unlawful discrimination when Respondent refused to
reemploy him in February 1968, following the
shutdown of the job, in violation of Section 8(aX3)
and (4) of the Act, for reasons of his membership
and activities on behalf of the Union , and because
of his prior testimony concerning Respondent's
alleged unfair labor practices in S.A. Healy Co..
and/or Tom M. Hess, Inc. and Ralph H. Capehart.
172 NLRB No. 43, herein referred to as
"Capehart's."
In support of this contention, General Counsel
relies in the main on the testimony of employee
Albert Coombs, concerning a conversation he had
with Grant Haslam. According to Coombs, Haslam
stated that he would " like to see some of the guys
get back" to work , like Nafus and some others; and
that he had understood a lot of them did not get
back because they had testified at Capehart's
hearing, and that he did not see why they did not
want them back . Haslam also mentioned Nafus'
name in referring to this group.
General Counsel stresses the point that Haslam
was a supervisor and responsible for the selection of
those to be recalled on February 15, 1968. However,
the evidence clearly shows that Haslam alone did
not select those to be recalled. Truck foreman
William Smelden, (also a witness for the General
Counsel at the Capehart hearing) also took part in
the selection , and, according to the credited
testimony of Haslam , it was Smelden and not
Haslam who rejected Nafus, without stating a
specific reason as far as the record shows.
Other evidence clearly demonstrates that Nafus
was refused employment because he had in the past
shown evidence of lack of care for the trucks to
which he was assigned . Respondent ' s general
superintendent Harder cites three instances when
this lack of care on the part of Nafus was evident to
him, and testified that, if Nafus had been sent out
by the Union to drive one of Respondent's trucks,
he would not have put him to work. The reason for
this was that he "... didn ' t feel that he was a man
that we wanted on our job. He was too hard on our
equipment ." Harder had , in fact , fired Nafus in
November for this reason , although he stated he
later found that the blame for the truck damage in
that particular instance could not be pinpointed to
Nafus. He did not, however, rehire him at any time
thereafter.
Further supporting the fact that Harder disliked
Nafus' driving habits, the Union ' s business
representative Scott Haslam credibly testified that in
December 1967, when Asbury Trucking Company
(who leased trucks with drivers to the Respondent,
and who had Asbury's own supervisors overseeing
February 15 in violation of Sec . &(&X I) and (3) of the Act, we find it
unnecessary to pass upon whether or not he was lawfully excluded from
employment on February 20.
the work), was going to put Nafus to work for it,
Harder objected to Nafus being assigned because he
was too hard on equipment. Asbury did, however,
hire him, and it was for this trucking company that
Nafus worked at the time of the job shutdown in
late December 1967.
The Capehart hearing at which Nafus testified
was held more than 2 months after he had been
fired by Respondent, and more than a month after
Harder had objected to Asbury's hiring him. During
that hearing, not only Nafus, but Foreman Smelden
and six other employees testified for the General
Counsel. Of these six employees, three were recalled
by Respondent when the work recommenced or
shortly thereafter, and the other three do not appear
on the Union's out-of-work list used to dispatch the
drivers to Respondent's job.
Based on all of the foregoing, we find in
agreement with the Trial Examiner, that the
statements of Grant Haslam do not overcome the
preponderance of the evidence that Nafus was not a
victim of unlawful discrimination, but rather was
not employed by Respondent for purely legitimate
reasons . Accordingly, we shall order that the
complaint be dismissed as to this allegation.
REMEDY
In view of the findings above set forth to the
effect that the Company has engaged in certain
unfair labor practices we will order it to cease and
desist therefrom and take affirmative action
necessary and appropriate to effectuate the policies
of the Act. In view of the finding that Fred W.
Hamilton was not given employment in reprisal for
his union activities, we will order the Company to
offer him immediate employment in his former or a
substantially equivalent job and make him whole for
lost earnings in accordance with the remedial relief
policies enunciated in F. W. Woolworth Company,
90 NLRB 289, and Isis Plumbing & Heating Co..
138 NLRB 716.
Because we believe that a discriminatory refusal
of employment, as in the instant case, goes to the
very heart of the Act, and also because we believe
that it may be anticipated from Respondent's past
conduct that Respondent may commit other
violations of the Act in the future, we shall issue a
broad cease and desist order herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the
Respondents , S. A. Healy Co., and/or Tom M.
Hess, Inc., engaged in joint venture at Salt Lake
City and Knowles, Utah, their officers, agents,
successors , and assigns , shall:
1. Cease and desist from:
S. A. HEALY CO., AND/OR TOM M. HESS,
(a) Discouraging membership in or activity on
behalf of Teamsters , Chauffeurs , W arehousemen
and Helpers, Local No. 222, or any other labor
organization , by refusing to hire employees or
discriminating against them in any other manner in
regard to their hire or tenure of employment or any
term of condition of employment.
(b) In any other manner interfering with,
restraining , or coercing employees in the exercise of
their right to self-organization , to form labor
organizations, to join or assist the above-named
Union or any other labor organization , to bargain
collectively through representatives of their own
choosing , to engage in concerted activities for the
purpose of collective bargaining or other mutual aid
or protection as guaranteed in Section 7 of the Act,
or to refrain from any and all such activities.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer Fred W. Hamilton immediate
employment in his former or a substantially
equivalent position, without prejudice to his
seniority or other rights and privileges, and make
him whole in the manner set forth in the Remedy
section hereof for any loss of earnings he may have
suffered by reason of the discrimination against him.
(b) Notify Fred W. Hamilton if serving in the
Armed Forces of the United States of his right to
employment upon application in accordance with the
Selective Service Act and the Universal Military
Training and Service Act, as amended, after
discharge from the Armed Forces.
(c) 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 or useful in
analyzing the amount of backpay due and the right
to reinstatement and employment under the terms of
this Order.
(d) Post at its jobsite in Salt Lake City and
Knowles, Utah, copies of the attached notice
marked "Appendix."3 Copies of said notice, on
forms provided by the Regional Director for Region
27, shall, after having been duly signed by an
authorized representative of the Respondent, be
posted by the Respondent immediately upon the
receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted . Reasonable steps shall be taken
to insure that said notices are not altered , defaced,
or covered by any other material.
(e) Notify the Regional Director for Region 27, in
writing, within 10 days from the date of this Order,
what steps the Respondent has taken to comply
'In the event that this Order is enforced by a decree of a United States
Court of Appeals, there shall be substituted for the words "a Decision and
Order" the words "a Decree of the United States Court of Appeals
Enforcing an Order."
765
herewith.
IT IS FURTHER ORDERED that all allegations of the
amended complaint not specifically found to be in
violation of the Act be, and they hereby are,
dismissed.
MEMBER BROWN , dissenting in part:
I would adopt the Trial Examiner's Decision and
dismiss the complaint in its entirety.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to The Decision and Order of The National
Labor Relations Board and in order to effectuate the
policies of the National Labor Relations Act, as amended,
we hereby notify our employees that:
WE WILL NOT refuse to reemploy any employee or
otherwise discriminate against him because of his
membership in, or activities on behalf of, Teamsters,
Chauffeurs, Warehousemen and Helpers, Local No.
222, or any other labor organization.
WE WILL NOT, in any other manner interfere with,
restrain, or coerce employees in the exercise of their
right to self-organization, to form labor organizations,
to join or assist the above-named Union or any other
labor organization, to bargain collectively through
representatives of their own choosing , to engage in
concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to
refrain from any and all such activities.
WE WILL offer Fred W. Hamilton immediate
employment in his former or a substantially equivalent
position, without prejudice to his seniority or other
rights and privileges, and make him whole for any loss
of earnings suffered by reason of the discrimination
against him.
WE WILL notify the above-named employee if
presently serving in the Armed Services of the United
States of his right to employment upon application, in
accordance with the Selective Service Act and the
Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
S. A. HEALY CO.,
AND/OR TOM M. HESS,
INC.
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
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 303-297-3551.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HOWARD MYERS , Trial Examiner: This consolidated
proceeding, with the General Counsel of the National
766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Labor Relations Board (herein called the General Counsel'
and the Board ) and S . A. Healy Co., and/or Tom M.
Hess , Inc. (herein called Respondent ) being represented by
counsel , came on to be heard before me on August 14 and
15, 1968 , at Salt Lake City, Utah, upon an amended
complaint dated June 7 , 1968, issued by the General
Counsel , for and on behalf of the Board , through the then
Acting Director for Region 27 (Denver , Colorado), and
Respondent' s answer to amended complaint.'
The amended complaint , based upon a charge
(27-CA-2462- 1), duly filed on March 13 , 1968, by William
W. Nafus (herein called Nafus ), upon a charge
(27-CA-2462-2) duly filed on March 13, 1968 , by Fred W.
Hamilton (herein called Hamilton ), and upon a charge
(Case 27-CA-2480 ) duly filed on April 8, 1968, by
William E . Smelden (herein called Smelden ), alleged that
Respondent violated Section 8 (axl), (3), and (4) of the
National Labor Relations Act, as amended from time to
time, herein called the Act.'
Upon the entire record in the case' and from his
observation of the witnesses , I make the following:
Hess , in the course and conduct of its business,
annually performs services valued in excess of $50,000 for
customers in States outside the State of California.
Upon the basis of the foregoing facts , I find , in line
with established Board authority , that Respondent is
engaged in , and during all times was engaged in, a
business affecting commerce within the meaning of
Section 2(6) and (7) of the Act and that its business
operations meet the standards fixed by the Board for the
assertion of jurisdiction.'
If. THE LABOR ORGANIZATION INVOLVED
Teamsters, Chauffeurs, Warehousemen and Helpers,
Local No. 222 (herein called the Union) is, and at all
times material was, a labor organization admitting to
membership employees of Respondent.
111. THE ALLEGED UNFAIR LABOR PRACTICES
A. Prefatory Statement
FINDINGS OF FACT
1. RESPONDENTS BUSINESS OPERATIONS
S. A. Healy Co. (herein called Healy), an Illinois
corporation , with its principal offices and place of business
at McCook, Illinois , and Tom M. Hess, Inc. (herein
called Hess), a California corporation with its principal
offices and place of business at Sacramento, California,
are heavy highway construction operators and, as such
operators , are engaged in, and during all times material
were engaged in, constructing highways in the States of
California and Utah.
Respondent is currently engaged in a joint venture
under a contract valued in excess of $4 million with the
State of Utah for the grading and constructing of
approximately 22 miles of Interstate Highway 80, between
Knowles, Utah, and Great Salt Lake Flats, Utah.
Healy , in the course and conduct of its business,
annually performs services for customers valued in excess
of $50,000 in States other than the State of Illinois.
'This term specifically includes counsel for the General Counsel
appearing at the hearing.
'The same day the amended complaint was issued , June 7, the
aforementioned Acting Director , by the authority vested in him by Sec.
102.33 of the Board 's Rules and Regulations , Series 8, as amended , issued
and served upon the parties herein , an amended . order consolidating, for
the purposes of hearing , the above-captioned cases.
'With respect to the unfair labor practices , the amended complaint
alleged in substance - ( 1) on or about January 24 , 1968, Respondent
discriminatorily transferred Smelden from its Knowles , Utah , job, to a job
which Respondent was then performing in the Los Angeles, California,
area, (2) since on or about February 12, 1968 , Respondent has
discriminatorily refused to reemploy Hamilton after a temporary cessation
of construction operations ; (3) since on or about February 15, 1968,
Respondent has discriminatorily refused to reemploy Nafus after a
temporary cessation of construction operations in December 1%7, because,
among other things , Nafus gave testimony in Case 27-CA-2366 concerning
Respondent's alleged unfair labor practices ; and (4) on or about March 24,
1968. constructively discharged Smelden.
'On October 7, 1968 , briefs were received from Respondent's counsel
and from the General Counsel which briefs have been carefully considered.
At the close of the General Counsel's case-m-chid' and again at the
conclusion of the taking of the evidence, Respondent 's counsel moved to
dismiss the complaint for lack of proof . Decisions thereon were reserved.
The motions are hereby disposed of in accordance with the findings,
conclusions, and recommendations hereinafter set forth.
Respondent is, and at all times material was, engaged
in the construction and grading of a portion of Interstate
80, a Federal Highway project at Knowles, Utah.
Presently employed on this project are approximately 35
employees driving large heavy-duty trucks, commonly
referred to as "doubles," valued at approximately $30,000
to $40,000 each and requiring experienced drivers to
operate them.
Respondent, before hiring drivers for the aforesaid
trucks, normally test drive the applicants to ascertain
whether or not they are qualified.
Work on the above-mentioned highway project
commenced in July 1967, and was still in progress at the
time of the hearing herein. However, due to equipment
changeover and adverse weather conditions, there was a
temporary cessation of work from December 25, 1967,
until February 20, 1968, which resulted in the lay off of
most, if not all, of the drivers.
At the inception of the said highway project in July
1967, Respondent became a signatory to a
collective-bargaining agreement with the Union which
agreement was in full force and effect until December 4,
1967, at which time Respondent joined the Utah Chapter
of the Associated General Contractors of America and
thereby became bound to the collective-bargaining
agreement then in effect between the Union and said
employer-association.
On February 15, 1968, Respondent, in anticipation. of
resuming partial work on the aforementioned highway
project on February 20, selected 18 of the approximately
35 drivers laid off on December 25, 1967.
B. The Alleged Unlawful Discrimination Against
Hamilton , Nafus, and Smelden
It is the contention of the General Counsel that
Respondent ( 1) discriminatorily refused to rehire
Hamilton on or about February 12, because of his
activities on behalf of the Union ; (2) discriminatorily
refused to rehire Nafus on or about February 12,+
"because of Nafus ' prior testimony concerning the
Respondent ' s alleged unfair labor practices in Case
27-CA- 2366 (S. A. Healy Co . and/or Tom M. Hess, Inc.
'See S . A Healy Co., and/or Tom M. Hess, Inc. 172 NLRB No. 43.'
S. A. HEALY CO., AND/ OR TOM M. HESS,
and Ralph M. Capehart ), and because of his membership
and activities on behalf of the Union "; and (3) on or
about January 24 , 1968, discriminatorily transferred
Smelden from the Knowles , Utah, highway job to a job
Respondent was then performing in the Los Angeles,
California , area , "because of the Respondent ' s belief that
the Union was dissatisfied with " Smelden ' s relationship
with the Union thereby causing Smelden to terminate his
employment with Respondent on or about March 24.°
Hamilton was first hired by Respondent on September
11, 1967, as a fuel man or greaser and about 2 weeks later
was made a driver of a "double" with a 25-cent-per-hour
increase in pay . On September 27, 1967, Hamilton was
appointed a steward by the Union' s Executive Board. As
such steward , Hamilton handled numerous grievances with
management ; some of which were settled without recourse
to the Union and others were not.
Shortly before February 15, 1968, ' Tom Harder,
Respondent ' s general superintendent and the person in
charge of the Knowles highway job from October 1967
until about the following April, telephoned from the Los
Angeles , California , area to the Knowles jobsite and, after
informing William LaVine, Respondent ' s office manager,
that the aforementioned Knowles highway job would be
reactivated within a few days, instructed LaVine, to confer
with William Smelden , Respondent ' s then truck foreman
and the Charging Party in Case 27-CA-2480," and Grant
Haslam , Sr., Respondent ' s grade foreman , and to select
18 of the laid off drivers for reemployment.
Pursuant to Harder ' s above referred to instructions, La
Vine, Smelden, Grant Haslam , Sr.,' and John Tierney, the
newly hired replacement for Smelden as truck foreman,
conferred on February 15, in Repondent ' s office at the
Knowles highway project site.
The procedure followed at the aforesaid meeting was:
LaVine read aloud the names of the drivers appearing on
Respondent' s master payroll '° and Smelden and Grant
Haslam would then indicate whether they approved or
disapproved of the recall of the person whose name was
called ." According to Smelden , Grant Haslam objected to
the recall of Albert Coombs, Philip Killian Nafus, and
Hamilton . When asked on direct examination by the
General Counsel whether Grant Haslam gave any reason
for voicing his objection to Hamilton , Smelden responded
that Haslam stated , "We have problems with them, we
can't control them - the three men, which was Nafus, Al
Coombs and Fred Hamilton , and Phil Killian ." Smelden
was then asked by the General Counsel if Grant Haslam
stated the nature of the "problems ," and Smelden replied,
"He (Haslam ) said it this way . `We can ' t control them',
and I said , `What do you mean , can't control them?' and
he said ` Well, my son and I, we cannot control them,' so
we dropped it at that , and then he came back later and
said... Bill Nafus and Phil Killian was [sic] the agitators
and pushed Al Coombs up front to shoot the popcorn."
The General Counsel contended at the hearing and argued in his brief
that Smelden's termination of employment was, in fact , "a constructive
discharge."
'Unless otherwise noted all dates hereinafter mentioned refer to 1968.
'Smelden worked continuously throughout the December -February
shutdown.
'Grant Haslam , Sr., is the father of Grant Scott Haslam , the Union's
business agent and who is referred to in the record as Scott Haslam.
Hereinafter Haslam , Sr., will be referred to as Grant Haslam and his son
as Scott Haslam.
"Included on said payroll were the employees driving certain trucks
leased by Respondent from Asbury Trucking Company . These Asbury
drivers were under limited direction and limited control of Respondent
767
During the course of the meeting referred to
immediately above , Scott Haslam called and spoke to
LaVine . Regarding this telephone conversation, Smelden
testified that after LaVine had talked with Scott Haslam
"about different things", LaVine remarked "We are
making up the list right now, and we will bring it in to
you shortly as Mr. John Tierney arrived on the site this
morning , and we want to transfer him to the Teamsters";
that after some "small talk about Mr. Tierney ," LaVine
asked , "What about Hamilton ?" and after some further
"small talk on the phone", LaVine remarked , "We have
him on the list of drivers"; that after a short pause,
LaVine said , "Oh, I thought it was all right if he came
back as a driver"; and that said telephone conversation
concluded when LaVine said he would talk to Scott
Haslam "more about the matter when -he got to the
office."
LaVine testified that he did not participate in the actual
selection or rejection of the 18 drivers to be recalled
because he was in no position to pass upon their
qualifications and therefore he was compelled to rely upon
Grant Haslam ' s and Smelden's appraisals of the men; that
he "hardly knew " Hamilton and he "hardly ever had
contact with" Nafus; that he called out the names of all
the men appearing on the drivers ' payroll and as each
name was called he asked Grant Haslam and Smelden
what they thought of the man ' s ability ; that Grant
Haslam and Smelden would express their comments about
the men as their names were mentioned ; that Grant
Haslam and Smelden seemed to be in general agreement
as to the "bulk of the men" being good drivers ; that he
could ' not recall any specific objection to any individual
driver mentioned ; that Hamilton was considered for recall
but not selected; and that after he had prepared the list of
the 18 selected he delivered the list to the Union's Salt
Lake City headquarters that day , February 15.
LaVine further testified that during the meeting at
which the 18 drivers were selected for recall, he received a
telephone call from Scott Haslam inquiring when the
Union would receive the list containing the names of
drivers selected ; that, after telling Scott Haslam that the
list would be delivered later in the day, he , to quote from
LaVine 's testimony , "brought up the question . . . since
Hamilton wasn 't one of the first 18 , and since I could not
see anything in the Union book ," I asked him what our
obligations were as far as job stewards" were concerned";
and that when Scott Haslam replied that job stewards had
no more privileges than other drivers, he "was able to
guide [himself ] accordingly."
At the above-described February 15 meeting at which
18 drivers were selected for recall , Grant Haslam testified
that Smelden remarked when Albert Coombs ' name was
called by LaVine , "He's not coming back"; that he was
agreeable to Hamilton's recall whereas Smelden said, to
quote Grant Haslam, "he wouldn 't have Hamilton back
on the job," adding, to again quote Haslam , "You want
Hamilton back? He's caused him too much trouble with
the union representative;" that Smelden also objected to
the recall of Nafus ; and that he objected to five drivers
being recalled.
during the period they were driving the trucks leased to it.
"Neither LaVine nor Tierney took any part in the selection or rejection
of the men, the former because he did not know the qualifications of the
drivers and the latter because he did not know any of them.
"Apparently, meaning the collective-bargaining agreement then in effect.
"It will be recalled that Hamilton was the job steward at the time of the
December shutdown.
"When asked on redirect examination by Respondent's counsel to give
768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I credit the testimony of LaVine and Grant Haslam
over the testimony of Smelden regarding what transpired
at the aforementioned February 15 meeting and find that
it was Smelden and not Grant Haslam who opposed the
recall of Hamilton , Nafus, and Coombs . I also find that
at no time did Grant Haslam oppose the recall of Killian.
As to the five drivers Grant Haslam did disapprove of, the
undersigned finds that none of them is involved in this
proceeding , and hence makes no finding with respect to
them . I further find that the reason for not including
Hamilton , Nafus , Killian , and Coombs in the 18 selected
at the February 15 meeting , was not due to any unlawful
discrimination but the decision was based solely on
nondiscriminatory reasons.
I base the above findings mainly , but not entirely upon
(1) the unpersuasiveness of Smelden ' s version of what
transpired at the meeting in question , coupled with his
observation of the demeanor during the hearing of
Smelden , LaVine , and Grant Haslam . Furthermore, in the
judgment of the undersigned, the versions given by Grant
Haslam and LaVine, including the latter ' s version
regarding his telephone conversation with Scott Haslam
which took place during the course of said meeting, are
inherently more credible than Smelden ' s for I am
convinced that Smelden was more concerned about the
successful outcome of his case against Respondent based
upon the charge filed by him in Case 27-CA-2480, which
case was consolidated and heard with the instant
proceeding , than testifying to the true facts; (2) the fact
that when Scott Haslam informed his father, on or about
February 19, the "day [the Union ] was clearing the [18]
drivers" selected for recall , that John Gray , one of the 18
selected drivers , had returned to California and hence was
unavailable for recall at that time , Grant Haslam
immediately requested that Coombs be dispatched;16 (3)
the fact that on a good many occasions prior to the
December shutdown , Smelden and Hamilton , who was
then job steward , engaged in many heated arguments over
the drivers' numerous complaints that Smelden gave
Respondent' s California drivers preference over
Respondent ' s truckdrivers in the assignment of newer
trucks and overtime work ; (4) regarding an incident which
took place in August 1967 , wherein Smelden deliberately
drove his truck in front of Nafus ' truck thereby nearly
causing bodily harm to Nafus and serious damage to
Nafus' truck ; and (5 ) that as soon as Tom Harder,
Respondent 's superintendent , learned that Killian was not
among the 18 selected at the February 15 meeting, Harder
instructed LaVine to request the Union to dispatch
Killian , in order , as Harder credibly testified , "to show
that there was no hard feelings because [Killian] did
testify" at the prior Board hearing based upon the charge
filed by Ralph H. Capehart against Respondent." Killian
was dispatched and put to work as soon thereafter as an
opening occurred.
On February 19, Scott Haslam left Salt Lake City,
where the Union ' s headquarters are, and at all times
material were , located for Boise , Idaho . On the aforesaid
date , Scott Haslam , in anticipation of a request being
received from Respondent in his absence for additional
drivers , handed Mrs . Lucille McLelland, the Union's
his reasons "for your objection to the two people you said you did." Grant
Haslam replied, "They was [sic] always getting stuck out ... in the dump
area."
"Coombs was dispatched and put to work on February 19
"Case 27-CA-2366. Reported at 172 NLRB No. 43.
cashier and sometime dispatcher , a list containing the
names of six drivers with instructions to dispatch said
listed drivers to Respondent if it requested drivers. On
said list were the names of Hamilton, Nafus, and Killian.
On February 20, LaVine telephoned the Union's
headquarters and requested McLelland to dispatch six
drivers the following day. Thereupon, McLelland
telephoned the six men whose names were on the list given
her the previous day by Scott Haslam and informed them
of the openings at Respondent's highway job and then
issued dispatch slips to each of them.
Harder testified, and I find, that shortly after the 18
drivers who were selected for recall on February 15, had
reported for and had been put to work, Hamilton came to
the Knowles highway jobsite and asked why he had not
been recalled; that he told Hamilton "there was a list
made up of 18 men for the first 18 trucks that we put to
work, and that we had phone calls [from other drivers]
complaining that they weren't the first men to be called,
so at that time I made up my mind that I was going to
call men from the out-of-work list. I told him I was sorry,
but I couldn't deviate from that. I did tell him that I
made one exception though. When I learned on (sic) these
first 18 men , a gentleman by the name of Phil Killian
[was not on the list] - and he was a man that testified in
a prior hearing" - I asked our office man to ... call him
out by name to show that there was no hard feelings
because he did testify at [that] hearing"; and that when
Hamilton replied, "Well, it looks like all I have to do to
come back to work is file a grievance," he said, "Well,
that's your prerogative.""
LaVine testified, and I find, that in view of Harder's
explicit instructions to no longer request the Union to
dispatch any particular named driver but to have the
Union dispatch drivers from the top of the out-of-work
list, "because of the animosity and hard feelings"
generated by those drivers who were not among the first
18 recalled, he called the Union several hours after he had
requested the dispatch of the six drivers to be certain that
Harder's above referred to "explicit instructions" were
carried out and that the six men would be selected for
dispatch from the top of the out-of-work list; that the
reason he made the call, instead of waiting for the
dispatched men to report for work the following morning
and then ascertain if Harder's instructions had been
complied with was due to the fact that he lived 85 miles
from the Knowles highway project and normally, when the
job was in progress, he would have to be in the project
office when newly dispatched men report for work at 7
o'clock in the morning in order to sign them up, but if
newly dispatched men had been signed up the previous
day or other arrangements had been made with respect to
the necessary data needed to be secured for them, prior to
the time the newly dispatched men actually commenced to
work on the job, he then had no problem in that regard
and could arrive at the project after 7 a.m.; that when
McLelland answered the phone he asked her for the
names of the six drivers who had been selected for
dispatch, she replied that Hamilton, Nafus, and Killian
and three other drivers had been told to pick up their
dispatch slips and to report for work the following
morning, that he then inquired whether these six men were
taken from the top of the out-of-work list; that when;
McLelland replied in the negative , he asked to speak to
Scott Haslam; that when McLelland stated that Scott
"Meaning the Capehart proceeding (Case 27-CA-2366).
"Hamilton places this conversation as having taken place on March 5.
S. A. HEALY CO., AND/OR TOM M. HESS, 769
Haslam was out of town, " I said Mr . Harder has
explicitly instructed me - because of the animosity and
the hard feelings - that we should take the men from the
top of the list." McLelland then stated "She would then
have to notify Mr. Hamilton and Mr. Nafus and whoever,
and send out men from the top of the list and call these
men up and tell them to stay home until it was
straightened out."
On February 20, or on the day following, Scott Haslam
returned to Salt Lake City and was informed by
McLelland about the cancellation of the dispatch of
Hamilton, Nafus, and Killian. Later that day, Scott
Haslam went to the Knowles jobsite and demanded to
know from Harder and LaVine the reason for the
cancellations . Harder and LaVine stated that the three
above-named individuals were dispatched "in violation of
the labor agreement" because the Union "had taken these
men out of turn, off the list ahead of the other people."
Scott Haslam testified, and I find, that he knew when
he placed the names of Hamilton , Nafus , and Killian on
the list he gave McLelland on February 19, they would be
dispatched out of turn ; that if they were dispatched it was
in violation of the then existing collective-bargaining
agreement ; and that the sole reason he arranged for the
dispatch of Hamilton , Nafus, and Killian on February 19,
was "because of the animosity and hard feeling these
fellows had about not being requested back , and I was
bothered every night with phone calls from them. I just
decided that I was going to get them off my back and
send them back to the job."
The General Counsel contended at the hearing and
argued in his brief that the main reason that Hamilton
was not accepted for employment on February 15 or on
February 20, was his activities as job steward." In
particular the General Counsel points to Hamilton's
actions in calling a work stoppage on November 29 which
action Respondent resented most vehemently . The credited
evidence , however, does not support this contention." In
fact, I am convinced and find , that Hamilton's
membership and activities on behalf of the Union or his
activities as job steward played no part whatsoever in
Respondent' s failure to select Hamilton for recall on
February 15, or to honor his February 20 dispatch.
Accordingly , I recommend that the allegations of the
amended complaint with respect to Hamilton be
dismissed.
William W. Nafus was first employed by Respondent
on its Knowles highway project on August 18, 1967.
On or about September 23, 1967, he was fired by his
immediate superior , Donald Wright , alledgedly for
willfully damaging his truck. After investigation , however,
Respondent decided that the Nafus' truck was damaged
due to no fault of Nafus and, two days after his aforesaid
discharge, reinstated Nafus to his job as truck driver.
On November 10, 1967, Nafus was again discharged.
This discharge was brought about because Nafus drove his
truck without sufficient oil in the crank case, thereby
damaging the truck ' s engine . Nafus' original November 10
discharge slip read , "reduction in force" and in the
portion requesting "explanation" for discharge was
"According to Harder ' s credited testimony he would have accepted
Hamilton for reemployment on February 20, had Hamilton been
dispatched in accordance with the collective -bargaining agreement.
"The undersigned finds that the other incidents involving Hamilton
referred to by the General Counsel in support of his contention that
Hamilton was unlawfully discriminated against to be without substance or
merit.
printed "Driver burned engine up on truck due to lack of
oil."
On November 14, 1967, Nafus filed a grievance with
the Union. Upon receipt of said grievance Scott Haslam
telephoned Tom Harder and requested that Nafus'
original November 10 discharge slip be destroyed and a
new one issued deleting therefrom the reason for the
November 10 discharge so that Nafus would be able to
obtain unemployment benefits. Shortly thereafter a new
discharge slip was issued to Nafus with merely a check
mark in the square marked, "Reduction of Force."
On December 3, 1967, Scott Haslam issued Nafus a
clearance to a truck driver's job with Asbury Trucking
Company.2' Nafus worked for that firm from the date of
said clearance until the Knowles highway project was shut
down on December 25.
As found above, Nafus' Union dispatch of February 20
was revoked because it was issued out of order. Harder
testified that he would not have rehired Nafus even if his
dispatch from the Union was in accordance with the
provisions of their existing collective-bargaining agreement
because, to quote from Harder's credited testimony, "I
didn't feel that he was a man that we wanted on the job.
He was too hard on our equipment."22
In addition to the allegations of the amended complaint
that Respondent discriminated against Nafus in violation
of Section 8(aX3) of the Act by refusing to rehire him on
and after February 15, "because of his membership and
activities on behalf of the Union," said amended
complaint also alleged that Respondent discriminated
against Nafus in violation of Section 8(a)(4) of the Act
"because of Nafus' prior testimony concerning the
Respondent's unfair labor practices in Case 27-CA-2366."
On January 16 and 17, 1968, the hearing in the case
referred to immediately above was conducted by Trial
Examiner James R. Webster. During the course of said
hearing, besides the complainant, Ralph H. Capehart, and
Smelden , the General Counsel called as his witnesses
seven persons who were in Respondent's employ at the
time of Capehart's discharge on September 18, 1967.23
I have read the entire testimony and have reread
portions thereof of the aforementioned seven
employee-witnesses and find nothing in Nafus's testimony
which, in any manner, shape, or form, could cause
Respondent any concern. On the other hand, the
testimony of most of the other employee-witnesses was
heavily relied upon by Trial Examiner Webster in
reaching his conclusion that Respondent unlawfully
discharged Capehart.24 In fact, the only reference to
"It will be called that Respondent had an arrangement with Asbury
Trucking Company whereby the latter leased trucks to Respondent. The
hiring and supervision of the drivers of the Asbury leased trucks were
directly under the direction and control of Asbury's superintendent.
However, it was one of Smelden 's duties to check the number of trips
made by the leased Asbury trucks as well as the time consumed on each
trip in order to ascertain the money due Asbury from Respondent for the
use of the leased trucks.
"Nafus' abuse of equipment is illustrated , in part, as follows: (1) In
November 1967 Nafus was discharged because he damaged the engine of
the truck he was driving due to lack of oil; (2) operated a truck when there
was a discernible malfunction of the fan hitting the radiator ; and (3) by
operating his truck at an excessive rate of speed and striking a hole in the
road thereby extensively damaging the expensive trader attached to his
truck.
"Namely, Ralph Hendricks, Nafus, Grant Clark, Killian , Lawrence
White , Graham Porter , and Wayne Buzzard.
"Trial Examiner Webster 's Decision was adopted by the Board in its
entirety.
770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Nalus ' testimony in the Trial Examiner ' s Decision appears
in the first full paragraph on page 6 of the aforesaid
Decision , which reads as follows:
At 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 understanding from converations 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.
Further in support of his contention that Nafus was
refused reemployment because he had testified as a
General Counsel witness in the Capehart hearing, the
General Counsel points to the testimony of Coombs and
Hamilton . With respect to the latter's testimony in this
regard , the portion thereof upon which the General
Counsel relies is a conversation between Hamilton and
Harder, which Hamilton testified took place on March 5,
Harder's version thereof is quoted in its entirety in the
portion of this Decision concerning the revocation of
Hamilton ' s February 20 dispatch slip and hence it would
serve no useful purpose to set it forth here at length.
Hamilton ' s version of the aforementioned conversation is
as follows:
I asked Mr . Harder the same question I put to Mr.
LaVine: "Why when they started up operations , that he
hadn ' t called back the man that had worked the hardest
for him ."" He told me that they had had some
difficulties when they called in and requested the men,
and that from now on they were going to take the men
off the top of the out-of-work list. If my name came up,
I would certainly be welcome back on the job.
I told him that wasn't the procedure they were using
because they had requested Bill Bird , Phil Killian, and I
thought Lloyd Levick, and Ron Johnson, and he told
me at that time that they were not thinking about
hiring back Phil Killian and Bill Nafus because they
had appeared in the Capehart case, but they had
reconsidered on Mr . Killian because he had filed a
grievance against the Union, and it seemed that it had
merit , and they decided to hire him back on that basis.
He said at that time , "Are you sure that we requested
Mr. Bird back?" I said , "Yes." He went over to the -
he said , " I will find out about it right now," and went
to his radio to call Mr. Tierney , and this is right at
"Respondent's project manager.
"Meaning himself, Hamilton.
noon, and he couldn't arouse Mr. Tierney on the radio.
Upon the entire record, I find that Harder's version of
the aforesaid conversation to be substantially in accord
with the facts. I further find that Nafus' name was not
mentioned during this conversation . These findings are
based mainly, but not entirely upon the fact that Harder
impressed me as being a person who is meticulous in not
enlarging his testimony beyond what he remembered
about the events under inquiry. On the other hand,
Hamilton gave me the distinct impression that he was
attempting to conform his testimony to what he thought
would be to his and to his co-complainants ' best interests.
The portion of Coombs' testimony relied upon by the
General Counsel in support of his contention that Nafus
was not reemployed for unlawful reasons concerns a
conversation Coombs had with Grant Haslam.='
Regarding his conversation with Grant Haslam referred
to immediately above, Coombs testified as follows:
A. I was standing along side Grant's pickup waiting
to dump. There were two trucks in front of me waiting
to dump, and we were just talking, and he (Grant
Haslam ) said he would sure like to see some of the
guys get back, like Bill Nafus and some of these guys.
Q. Do you recall anything else being said by Grant
Haslam at that time?
A. Well, he said that a lot of the guys that didn't
come back he had understood that they didn't want
them to work because they had testified at Ralph
Capehart' s trial , that he couldn't see why they didn't
want them back.
Q. Did he mention any names of people that he
referred to?
A. Well, Bill Nafus and - I'm not sure; I believe he
mentioned Phil Killian, but I don't remember for sure,
but Phil Killian was recalled later.
Although Grant Haslam testified in this proceeding, he
was not questioned about Coomb's testimony. In the
opinion of the undersigned nothing in the statements
attributed to Grant Haslam by Coombs warrants a finding
that Nafus was refused reemployment on or after
February 15 because he had testified as a General
Counsel's witness at the Capehart hearing.
The General Counsel also argued in his brief that
"Respondent considered Nafus to be a well-qualified
driver when he was referred out by the Union to drive
Asbury trucks on December 3, 1967." The testimony of
Scott Haslam is to the direct contrary. Scott Haslam
testified that in a prejob meeting which took place in the
latter part of November 1967 and attended by himself,
Harder, Asbury's superintendent and a Mr. Stanley,
Harder objected to Nafus being assigned to any of the
leased trucks because Nafus was "too hard on the
equipment."
Upon the record as a whole, I find that the allegations
of the amended complaint that Respondent violated
8(a)(3) or (4) by not recalling Nafus on or after February
15, have not been sustained by substantial evidence."
Accordingly, I recommend that the allegations of the
amended complaint with respect to Nafus be dismissed.
"Coombs places this conversation as having taken place about 2 weeks
after February 20.
"It is significant to note that of the seven employee -witnesses called by
the General Counsel at the Capehart hearing , Grant Clark was selected for
recall on February 15; Buzzard was dispatched and apparently put to work
on February 20; LaVine was instructed by Harder to have Killian
dispatched as soon as an opening occurred ; and the names of Hendricks,
White and Porter do not appear on the Union 's out-of-work list received in
S. A. HEALY CO., AND/OR TOM M. HESS, 771
William E. Smelden was first employed on the Knowles
highway project on July 25, 1967, as a lead driver under
the direct supervision of William A. Corn, a manager of
Tom A. Hess, Inc. and Respondent's manager of the
Knowles highway project. Immediately prior to the
aforesaid date, Smelden drove a truck for the Hess
concern on a job it was then performing at Duarte,
California.
Smelden first settled in California in 1954.
About June 1967, while Smelden was on the Duarte
project, Fred ReCupido, a member of the Hess
management, asked Smelden if he would be willing to
transfer to the Knowles highway job. When Smelden
replied in the affirmative, ReCupido explained the nature
and duration of the job, the pay Smelden would receive,
and that Smelden should report to Knowles on July 24 or
25, 1967. DeCupido also told Smelden on that occasion
that Smelden could take his wife and two children, ages
13 and 7, with him if so desired.39
Shortly before July 25, Smelden proceeded to Knowles
without his wife and children. Upon his arrival in Knowles
he looked for a house to rent. Not being able to rent a
suitable house in or near Knowles, Smelden purchased a
house in Grantsville, Utah, some 70 or 80 miles from the
Knowles job site.
About mid-August 1967, Jesse Vasquez, the truck
foreman on the Knowles job was injured in an automobile
accident. Thereupon, Corn replaced Vasquez with
Smelden. As truck foreman '30 Smelden was guaranteed a
50-hour week at 12 cents per hour pay over the highest
paid man under his supervision."
Within 10 days or so of his employment at Knowles,
Smelden became embroiled in a heated argument with
Grant Haslam. At a cafe shortly after said argument,
Smelden stated to several of his coworkers that he
intended to "whip" Grant Haslam. This threat soon came
to the attention of Scott Haslam and several days later,
Scott Haslam, while at the jobsite collecting dues
deduction assignments for Respondent's truckdrivers
questioned Smelden and Grant. Haslam about said
incident. When Smelden stated that a misunderstanding
had arisen between him and Grant Haslam and that he
"wasn't going to whip" the latter, Scott Haslam "let it
drop at that", adding that his (Scott Haslam's) younger
brother was a little upset about the threatened whipping.
As found above, numerous truckdrivers on the Knowles
project complained to Hamilton about Smelden's
favoritism toward Respondent's California drivers over its
Utah drivers in the assignment of newer trucks and
overtime work. In addition, the credited evidence
establishes that, from time to time, there were numerous
complaints lodged with Hamilton and with Scott Haslam
against Smelden by various truckdrivers of Respondent,
not only about the aforesaid favoritism but about pay due
to said drivers. In fact, Scott Haslam, on a great many
occasions, took these matters up with the Knowles project
top management, including Harder. The credited evidence
also establishes that the Union "because of the trouble [it]
evidence as G.C. Exh. 7.
"At that time , about June 1967, Smelden owned a house in La Puenta,
California , where he and his family resided. Upon leaving for Knowles,
Smelden rented said house "for the duration , or until the completion of the
job at Knowles."
"In this capacity Smelden was a supervisor within the meaning of the
Act.
"On the Duarte job, Smelden was paid $5 .64 per hour on a
60-hour-per-week basis.
was having on the bickering about the California people"
due to Smelden's favoritism, Haslam was forced to
appoint an assistant job steward so that Hamilton would
be free to handle other union matters.
Harder testified, and I find, that in October or
November 1967, Scott Haslam informed him, to quote
Harder, "that his men on the job there had told him that
some of them were being favored over others, which he
didn't think was right, and that there was just more or
less complaints of how Mr. Smelden was conducting
himself as a foreman"; that he then decided to recall Jess
Vasquez, the foreman whom Smelden replaced when
Vasquez was injured as soon as Vasquez's doctor released
him; that he recalled Vasquez early in December, but had
to release Vasquez soon thereafter because Vasquez did
not seem well enough mentally to return to work at that
time.
During the December 1967-February 1968 shut down
Smelden continued his job as foreman.
In January 1968, Respondent decided to hire John
Tierney who was then employed in or near Chicago,
Illinois, as truck foreman. Tierney reported for work at
the Knowles highway project on the morning of February
15. As found above, Tierney attended but took no active
part in the February 15 meeting at which 18 drivers were
selected for recall. The record clearly discloses that on, or
before, that date, February 15, Smelden was aware that
he was being replaced as foreman by Tierney. This finding
is buttressed among other things, by the fact that
Smelden's name appears on the February 15 list of
truckdrivers to be recalled.
On February 22, according to the credited testimony of
Harder the following transpired between him and
Smelden: 32
This would have been on a Wednesday of that week. I
called Bill Smelden outside the trailer and told him that
we were going to have John Tierney as our new truck
foreman, and I felt it was in his best interests and the
company's best interests if he would go back to
California and drive one of our company trucks. I
asked him if this would put too much of a hardship on
his family. He said it would, but he would go wherever
I asked him to go. However, he would like to go and
talk to his wife, so I told him at that time, "Well, do
that, and call me the next day, or I will call you, and
we will make a decision at that time as to whether you
go or not."
In addition, Harder credibly testified that during the
conversation referred to immediately above, he told
Smelden that he thought it might be "a hardship on Mr.
Smelden to work on the job site with the same men that
he was in control of previously"; that he came to the
conclusion that it would not be to Respondent's or to
Smelden's best interest to retain Smelden as a
nonsupervisory truckdriver," because "I had reports from
different men at different times saying they have [sic]
personality problems. I had also been told that some of
the membership in the Union were being treated more
favorably than others."
"Smelden's version of this conversation is considerably different from
Harder's. For the reasons hereinabove stated , the undersigned credits
Harder's version and rejects Smelden ' s. In fad , Smelden's testimony
regarding a telephone conversation he had with Harder on February 23 is
at a variance with his wife's version , who listened to the entire conversation
on an extension telephone . I also reject Smelden 's version of the February
23 Smelden-Harder telephone conversation.
"The only job to which Respondent could assign Smelden on the
772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The following day, February 23, Harder testified, and
the undersigned finds, that he telephoned Smelden at the
latter's home , and told him that he "had decided that I
would like him to go to [to Respondent ' s California
project] if his wife was agreeable . I would like for him to
finish the week [here ] and over the week -end go over [sic]
to California and report to the job site on the following
Monday morning"; that when he asked Smelden whether
Smelden ' s wife was agreeable to the transfer , Smelden
replied , to again quote Harder , "They had agreed that he
would go"; that when he specifically asked Smelden
whether the transfer was agreeable to him. Smelden
answered in the affirmative , adding, that Mrs. Smelden
and the two children would remain in Utah to finish out
the school year and that he would go to California and
stay with his brother until his family arrived in California.
Harder denied that Smelden was transferred at the
Union ' s request ; that he told Donald Fitzpatrick, or
anyone else that Smelden was transferred so he (Harder)
"could get along with the Union better."
Smelden left Knowles for California over the week-end
of February 25, and reported at the Hess , Los Angeles,
California , job on the following Monday and was put to
work that day as a truck driver at the rate of $4.88 per
hour , with the understanding that he would be given a
9-hour workday . However , Smelden did not work steady
and he was "shuttled" from his original California job to
another . His final California assignment was at San
Pedro . Smelden did not desire this assignment and
voluntarily quit Hess' employ during the first week in
April.
Smelden testified , and the undersigned finds, that after
working in California on the Hess jobs for seven or eight
weeks, he informed his foreman and Jerry Hess, a
coworker, "approximately two weeks before I terminated
with the company that I couldn ' t afford to work for that
Knowles project was that of a truckdriver.
"It is significant to again note that Smelden 's Grantsville house is
approximately the same distance from the Knowles highway project.
amount of scale and that I would have to return to Utah
because my wife could not take our child - because we
had an . adjustment with our child , our boy when we
brought him up [to Utah] , he has a problem in the school
because he had never been moved from the school that he
had originally started , and we had to go through several
hardships over this, so we didn ' t dare take him back [to
California ] and change him again."
Smelden also testified that upon being transferred to
California he took up residence at his brother 's house in
West Covina and that the San Pedro job was some 70 or
80 miles from his brother ' s house."
Upon the record as a whole the undersigned is
convinced, and finds, that the General Counsel has failed
to sustain by substantial evidence the allegations of the
amended complaint that Respondent discriminated against
Smelden in violation of Section 8(aX3) of the Act.
Accordingly, I recommend that the allegations of the
amended complaint as to Smelden be dismissed.
Upon the basis of the foregoing findings of fact and
upon the record as a whole , I make the following:
CONCLUSIONS OF LAW
1. Respondent is engaged in, and during all times
material was engaged in , commerce or in a business
affecting commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The, Union is a labor organization within the
Meaning of Section 2(5) of the Act.
3. The allegations of the complaint , as amended, that
Respondent has engaged in, and is engaging in, unfair
labor practices affecting commerce within the meaning of
Section 8(a)(1), (3), and (4) of the Act, have not been
sustained by substantial evidence.
RECOMMENDED ORDER
It is recommended that the complaint, as amended, be
dismissed in its entirety.