S. A. Healy Co.

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, Warehousemen 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.