Boulder Excavating Company

National Labor Relations Board - Board Decisions

Mar 29, 1982

260 N.L.R.B. 1283 (N.L.R.B. 1982)

BOULDER EXCAVATING COMPANY
Boulder Excavating Company and Jimmy Lee Ste-
vens. Case 27-CA-6836
March 29, 1982
DECISION AND ORDER
BY MEMBERS JENKINS, ZIMMERMAN, AND
HUNTER
On August 5, 1981, Administrative Law Judge
Roger B. Holmes issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, ' and
conclusions of the Administrative Law Judge and
to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby
is, dismissed in its entirety.
'The General Counsel has excepted to certain credibility findings
made by the Administrative Law Judge It is the Board's established
policy not to overrule an administrative law judge's resolutions with re-
spect to credibility unless the clear preponderance of all of the relevant
evidence convinces us that the resolutions are incorrect Standard Dry
Wall Products. Inc. 91 NLRB 544 (1950), enfd 188 F2d 362 (3d Cir
1951). We have carefully examined the record and find no basis for re-
versing his findings
DECISION
ROGER B. HOLMES, Administrative Law Judge: Based
on an unfair labor practice charge filed on July 29, 1980,
by Jimmy Lee Stevens, on August 29, 1980, the General
Counsel issued a complaint alleging violations of Section
8(a)(1) and (3) of the Act by Boulder Excavating Com-
pany.
The hearing was held on May 12 and 13, 1981, in
Denver, Colorado. The due date for the filing of post-
trial briefs was set for June 17, 1981. The General Coun-
sel's motion to correct the transcript, which was filed
with his brief and which has not been opposed, is hereby
granted. In addition, Stevens gave his name as indicated
above when he appeared as a witness during the hearing.
Therefore, I have changed the case caption to reflect the
name which he gave during his appearance on the wit-
ness stand.
FINDINGS OF FACT
1. JURISDICTION
The Board's jurisdiction is in issue in this case. At all
times material herein, the Respondent has been engaged
in the excavation business. It has an office and place of
business located at Boulder, Colorado. The Respondent
is incorporated under the laws of the State of Colorado.
During the Respondent's 1979 fiscal year, the Re-
spondent provided services in the amounts indicated for
the following named entities: Beech Aircraft, $20,242.85;
Arapahoe Chemical, $16,545.80; University of Colorado,
$11,561.92; and the city of Boulder, $7,716. Thus, the
total value of the services provided by the Respondent
to those entities during that period of time was
$56,066.57. On an annual basis, each one of the named
entities annually purchases and receives goods and mate-
rials valued in excess of $50,000 directly from points and
places located outside the State of Colorado.
The facts in the preceding paragraph were agreed to
by the parties at the hearing. However, the legal conclu-
sions to be drawn from those facts remain in issue. The
issue had earlier been raised in pre-trial pleadings. Asso-
ciate Chief Administrative Law Judge William J. Pannier
III relied on the Board's decision in Carroll-Naslund Dis-
posal, Inc., 152 NLRB 861 (1965), in his Order Denying
Motion to Dismiss for Lack of Jurisdiction and Denying
Motion for Bill of Particulars, which was issued on April
23, 1981. The factual allegations regarding commerce
data were different at that time. (See G.C. Exh. 1(f).)
However, I find that the Board's decision in Carroll-Nas-
lund is equally applicable to the commerce facts subse-
quently agreed to at the hearing.
In a decision issued on June 23, 1981, the Board stated
in Southern Alleghenies Disposal Services, Inc., 256 NLRB
852:
It is well established that the Board will assert ju-
risdiction over a nonretail enterprise which has an
annual outflow or inflow, direct or indirect, across
state lines of at least $50,000. Siemons Mailing Serv-
ice, 122 NLRB 81, 85 (1958). As enunciated by the
Board in Siemons, indirect outflow refers to sales of
goods or services within the State to "users" meet-
ing any standard except solely an indirect inflow or
indirect outflow standard. Further, the Board stated
that it would continue to define as "users" enter-
prises which themselves were exempted from the
Board's jurisdiction but whose operations were of a
magnitude that the Board would assert jurisdiction
if they were nonexempt.
Here, although the city of Johnstown is exempt
from the Board's jurisdiction under Section 2(2) of
the Act, the magnitude of its operations would
clearly warrant our assertion of jurisdiction over it
if it were nonexempt. Accordingly, because the Re-
spondent's sales of services to the city of Johnstown
are in excess of $50,000, the indirect outflow stand-
ard has been met.4 We therefore find that it will ef-
260 NLRB No. 186
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fectuate the purposes of the Act to assert jurisdic-
tion herein.5
4We thus find it unnecessary to address the General Counsel's
alternative argument for assertion of jurisdiction over Respondent
based on Respondent's services to other enterprises which are di-
rectly engaged in interstate commerce.
' We expressly disavow the Administrative Law Judge's char-
acterization of Respondent's operation as a purely local function
which does not affect interstate commerce See Carroll-Naslund
Disposal. Inc., 152 NLRB 861 (1965); Nichols Sanitation. Inc., 230
NLRB 834 (1977).
After considering the foregoing and the entire record,
I find that the Respondent is an employer engaged in
commerce and in a business affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
2. Labor organization
The question of whether International Union of Oper-
ating Engineers Local No. 9, AFL-CIO, is a labor orga-
nization within the meaning of the Act is an issue in this
case.
The Union is described as Local No. I in paragraph
III of the General Counsel's complaint. (See G.C. Exh.
l(c).) However, both the testimony and the documentary
evidence at the hearing revealed that the correct number
is Local No. 9. I find the other designation to be merely
a typographical error.
According to the credible testimony given by Daniel
P. McAuliffe, who has been a business agent of the
Union for the past 4-1/2 years, employees participate as
members of the Union, and the Union exists for the pur-
pose of representing employees regarding their wages
and working conditions. The Union will process the
grievance of an employee, where appropriate; but, the
Union has had only minimal problems with the Respond-
ent and no formal grievances regarding the Respondent's
employees.
Introduced into evidence as the General Counsel's Ex-
hibit 2 was a copy of the master agreement between the
Union and various employers in the State of Colorado.
The effective dates of that collective-bargaining agree-
ment were from May 1, 1978, to May 1, 1981. At the
time of the hearing in this proceeding, the contract had
been extended during the negotiations for a new agree-
ment. Introduced into evidence as the General Counsel's
Exhibit 2(a) was a copy of a short-form agreement be-
tween the Union and the Respondent. Among other
things, that agreement incorporates the terms of the
master agreement into the contract between the union
and the Respondent. One of the several job classifica-
tions covered in the master agreement is "assistant to en-
gineer (oiler)." That terminology includes equipment
oilers and crane oilers. The contract does not cover
truckdrivers.
McAuliffe described several ways at the hearing by
which a person could become a union member. One of
those ways involved the person's obtaining experience
through on-the-job training with his employer. McAu-
liffe stated:
Or we also have contractors that over a period of
time, they have employees that gather enough expe-
rience to be able to operate the equipment, say, as
laborers or truck drivers. Now, when this experi-
ence is gathered and we have no one on our out-of-
work list during the height of our season, which is
the summer months and into the fall, if we cannot
supply a qualified employee within 24 hours, then
they are entitled to have the employee that they
feel is qualified make application to the union and
we have to accept him as a member, or her.
After considering the foregoing and the record in this
case, I find that the union meets the statutory definition
of a labor organization as set forth in Section 2(5) of the
Act.
3. The witnesses
As indicated in section 2 herein, I have relied on the
credited testimony of McAuliffe and upon the documen-
tary evidence mentioned therein in making the findings
of fact which are set forth in that section.
Michael Dennis Clark has been the general superin-
tendent of the Respondent for about the past 2 years.
Clark was a knowledgeable witness who appeared on the
witness stand to be relating the facts accurately and to
the best of his ability to do so. He demonstrated that he
had a good recollection of the events about which he
testified. I found his testimony to be accurate and reli-
able, and I have credited his version of the events over
that given by any other witness.
The testimony given by Clark is consistent on many
points with the testimony given by Steven W. Haskins,
who has been the chief executive officer of the Respond-
ent for approximately 4 years. However, there are some
differences in their accounts, but those differences are
not so crucial as to warrant rejection of Haskins' other
testimony. I have also considered the fact that Haskins
testified that the reason for the termination of Jimmy
Lee Stevens was "Because he refused to deliver a load of
material." When Haskins was questioned as to whether
that was the "only reason," Haskins agreed that it was.
However, after being confronted by counsel for the Gen-
eral Counsel with his pretrial affidavit, Haskins acknowl-
edged that Stevens' refusal to oil about a week earlier
was also "a small reason." That portion of his hearing
testimony bears a remarkable similarity with a portion of
his pretrial affidavit. (See Resp. Exh. 1.) In his pretrial
affidavit, Haskins related the fact that Stevens had re-
fused to drive a certain truck for the Respondent. He
then stated in his affidavit, "That was the only reason he
was fired." Two paragraphs later in his affidavit, Haskins
related the fact that Stevens had refused to oil, and he
said, "This played only a minor part in the discharge." If
the word "only" is considered in the sense of "solely" or
"exclusively" in that context, then Haskins was incorrect
in stating that Stevens' refusal to deliver a load of mate-
rial was the "only" reason for Stevens' termination.
Nowithstanding that apparent error, I found much of
Haskins' to be believable, and I have relied upon por-
tions of his testimony except for some differences in his
testimony with Clark's account. Haskins admittedly
could not recall the sequence of the matters in his con-
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BOULDER EXCAVATING COMPANY
versation with Stevens on June 27, 1980, and, therefore,
I have relied on Stevens' version.
The testimony given by Stevens at the hearing signifi-
cantly conflicts both with the testimony given by Clark
and the testimony given by Haskins on numerous points.
I was not persuaded that Stevens' versions of these
events were more accurate and reliable than the accounts
given by Clark and Haskins. Having accepted Clark's
testimony, and having relied on portions of Haskins' tes-
timony, as indicated above, I cannot accept testimony
which is contradictory to their versions. Therefore, I
have relied on Stevens' testimony: (1) with regard to his
conversation with Dawn MacPherson on June 26, 1980;
(2) with regard to his conversation with Haskins on June
27, 1980; and (3) with regard to his identification of cer-
tain documents. In other respects, I have not credited his
account.
Dawn MacPherson has been the dispatcher of the Re-
spondent. I have relied on her testimony only to the
extent that: (1) she identified certain business records
with which she was familiar; (2) she related that she re-
ceived the order from Bickhard Construction on June 26,
1980; and (3) she gave her opinion of the job perform-
ance of Stevens. As to the other matters, I found that
Clark and Haskins had the better recollections of these
events. Considering the foregoing and the variation from
her testimony pointed out by the counsel for the General
Counsel regarding her pretrial affidavit (G.C. Exh. 4), I
shall rely on Stevens' version of his conversation with
MacPherson on June 26, 1980.
Counsel for the General Counsel correctly points out
in his post-trial brief that there are conflicts between por-
tions of the testimony given by Robert M. Laingor, who
is the president of the Respondent and the principal
stockholder, and portions of the testimony given by
Clark and Haskins. (See pp. 7 and 8 of his brief.) The
most significant conflict pertains to the number of rea-
sons which Laingor related were given to him by Has-
kins after Haskins had terminated Stevens. I have decid-
ed to rely on Haskins' version because: (1) Haskins was
the one who actually made the decision to terminate Ste-
vens; and (2) Haskins was the one who actually dis-
charged Stevens. While the other matters apparently
either had been reported to Laingor earlier, or had been
observed by Laingor earlier, I am persuaded that the rea-
sons for Haskins' taking action in discharging Stevens
were the ones which Haskins stated at the hearing. I
have not overlooked the fact that Laingor is the uncle of
Haskins and that MacPherson is married to a cousin of
Laingor. However, while those family relationships have
been considered, they do not alter the credibility resolu-
tions mentioned above.
4. The events prior to June 26, 1980
The usual workweek for employees of the Respondent
was from 8 a.m. to 4:30 p.m., if work were available, on
Mondays through Fridays. Payday was on Friday. Clark
explained in general about the comments of employees
regarding their wages and hours:
During the winter everybody gets upset about their
hours. It's a very seasonal business. During the
summer, August, September, everybody's tired and
they want off. They gripe about their hours in the
winter, and they gripe about their hours in the
summer. I'm caught between a rock and hard spot.
It's either too much or not enough.
When employees expressed their dissatisfaction to him
about the low number of working hours during the
winter months, Clark told the employees that things
would improve in the spring if the employees would stay
with the Company.
The Respondent's operators received an hourly wage
rate which was higher than that received by the Re-
spondent's truckdrivers, who were not represented for
collective-bargaining purposes by a union. However,
when a truckdriver performed an operator's task, he was
paid S1 an hour below the union scale, which, according
to Haskins, was "higher than the truck driver rate and
lower than a regular union rate for a full-time member."
Haskins explained the reason for the pay rate: "This is a
nonunion truck driver who is performing a union task
. . . While they're obtaining training before they join
the union."
Sometimes the Respondent's operators drive trucks for
the Respondent. When they do so, the longtime opera-
tors are still paid their union wage scale even though
they are performing a work task outside the coverage of
the contract. However, operators who have worked for
the Respondent for only 4 or 5 years receive the lower
rate paid to the Respondent's truckdrivers.
The Respondent utilizes eight trucks in the operation
of its business. Four of those trucks are 1979 Internation-
al trucks. Three of those trucks are 1973-74 Dodge
trucks. All of those trucks are capable of hauling 12-yard
loads. The oldest truck used by the Respondent is a
single axle Ford dump truck, which is capable of hauling
a 5-yard load. That truck is designated by the Respond-
ent as the T-10. Clark gave this description of the T-10:
"It's an older truck, about a '65 Ford, single axle, dump
truck, capacity approximately five cubic yards. We've
had it for quite awhile. It's not the best looking truck
we've got, but it is functional and it does pass safety
'specs' on the road." Clark said that the T-10 was some-
times missing a window on the driver's side, but that the
company tried to replace the window as soon as it could
do so. He acknowledged that the driver's side window
had been missing for a couple of weeks prior to June 26,
1980, and that the window was still out on June 26, 1980.
Clark compared driving one of the newer International
trucks to the old T-10 truck as follows: "It's like driving,
a Cadillac compared to a Volkswagen."
The employees of the Respondent do not have the
privilege of selecting the particular truck that they will
drive. Instead, the trucks are assigned by Clark to the
employees for a particular delivery. Clark tried to ac-
commodate Stevens' preference for driving one of the
newer 1979 International trucks. In particular, Stevens
preferred T-23, and Clark assigned that truck to Stevens
more often than to all of the other truckdrivers com-
bined. Clark also attempted to accommodate the other
truckdrivers with their preferences, when he was able to
do so, in order to keep the truckdrivers happy. With
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
regard to the T-10, Clark had assigned that truck to Ste-
vens on a number of occasions prior to June 26, 1980,
and Stevens had not refused to drive the T-10 prior to
June 26, 1980. Clark was aware, from what MacPherson
had told him, that Stevens had refused to drive one of
the Dodge trucks on one occasion a month or two prior
to June 26, 1980, but Clark took no action against Ste-
vens at that time.
On May 19, 1980, the T-10 was used to deliver a load
ordered by the Bickhard Construction Company for the
Boulder Memorial Hospital jobsite. Jack Bent drove the
T-10. It took him I hour and 5 minutes to complete that
trip from the time that Bent left the Respondent's shop
until the time he returned to the Respondent's premises.
On June 2, 1980, another load was delivered in the T-10
to the Boulder Memorial Hospital jobsite on orders from
the Bickhard Construction Company. Gary Wright de-
livered that load of inch-and-a-half rock. Clark explained
at the hearing that only a small truck of the size of the
T-10 could deliver the loads to the north side of the hos-
pital site. He stated:
At Boulder Memorial Hospital, on the north side of
the hospital, there is a parking lot. From that park-
ing lot, the new addition is on the west end of the
hospital. We had to back the truck up a fairly steep
incline under some low wires. This is why a big
truck wouldn't fit in there. We had to have a small-
er, lower-profile truck to get up the hill, go under-
neath the wires, and dump the load.
In addition to the foregoing, the T-10 had been uti-
lized for other deliveries in June 1980 prior to June 26,
1980. One delivery was on June 6, for Haas Construc-
tion. Jack Bent made that delivery for the Respondent.
Another delivery was on June 12, for the Economy In-
stitute, which employee Pat Beland delivered. Another
delivery was on June 24, for the Arapahoe Chemical,
which Stevens delivered for the Respondent.
When employees are hired by the Respondent, they
are told that a condition of their employment is that they
learn to operate the equipment, and after learning to do
so, the employees are expected to join the Union. Sever-
al times during the winter months of 1980, Stevens re-
quested Haskins' assistance in getting Stevens into the
Union. Haskins advised Stevens that he would have to
learn how to operate the equipment, and because it was
wintertime, there was no way that the Union would
allow Stevens to come to work for the Respondent in an
operator's position. (See the dispatch procedures set
forth in the collective-bargaining agreement between the
Union and the Respondent (G.C. Exhs. 2 and 2(a).)
Recall also the seasonal decline in the Respondent's busi-
ness during the cold winter months.) Nevertheless, Has-
kins did talk with Union Business Agent McAuliffe in
January or February 1980 and "told him that I had a
good man and I wanted to get him in the union."
Clark recalled an occasion when he suggested to Ste-
vens that he learn how to operate a backhoe in the Re-
spondent's yard. He explained to Stevens that Stevens
needed to know how to operate such equipment in order
to get into the union.
About 2 weeks prior to June 26, 1980, Haskins told
Clark to fill out an application for Stevens to join the
Union. Clark did so at that time except for some items
on the application form, such as the name of Stevens'
beneficiary. Clark gave the union application form to
Stevens the next day, and Clark told Stevens to fill out
the rest of the items on the union application.
On June 23, 1980, Haskins spoke with Stevens regard-
ing the Union. Haskins informed Stevens of the hours
that the union hall was open, and he inquired whether
Stevens was going to the union hall that night to join the
Union. Stevens asked Haskins if Haskins would pay him
the Union's scale for driving a truck. Haskins said no.
Stevens replied that he did not think he would join the
Union.
The task of oiling was explained by Haskins at the
hearing as follows:
You must deliver the crane to a particular job; you
must know how to rig different loads on the crane;
you're responsible for oil levels, fuel levels, water
levels on different engines on the crane; you're re-
quired to assist the operator whenever he required
assistance-he possibly might be working blind on
the job, you have to know the proper hand signals
to give.
Haskins said that Stevens knew how to get the crane to
the jobsite, but that Stevens did not know how to run
any heavy equipment. Haskins described the task of
oiling as being the initial step in learning the operator's
job. When Stevens refused to perform the task of oiling,
Haskins felt that Stevens was no longer interested in
joining the Union. Haskins testified:
Well, he wouldn't be qualified to join the union. He
didn't know how to run any equipment. Oiling is
the first initial step down this learning path, and by
refusing to do so, as far as I was concerned, he was
no longer interested in joining No. 9.
Management personnel expressed favorable opinions at
the hearing with regard to Stevens' job performance.
Clark said, "Jim was a good truck driver," and Clark felt
that there had been no reason to discipline Stevens prior
to June 26, 1980. Haskins said, "Jim was an excellent
truck driver. He knew the town; knew the Internationals,
and he could really do the job well." With regard to Ste-
vens' refusals prior to June 26, 1980, to drive certain
trucks, Haskins stated, ". . . at the time I was able to
work around them, so I figured I can get this thing
straightened out." Haskins said that Stevens' earlier re-
fusals had not been held against him, and that there had
been no discipline of Stevens prior to June 26, 1980.
Laingor said, "With a few exceptions, I think he got
along fine. The man is neat, well-mannered, competent,
and other than a few occasions when anybody might
want to argue about something, I certainly never had
any objections to his attitude." MacPherson said, "I
know that I used Jim quite a bit when I had a difficult
load to find, or something like that, because I knew that
he would be able to handle it. If he got lost, he would
call in or ask someone else. We don't always have that
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BOULDER EXCAVATING COMPANY
advantage with all the truck drivers, and I used him
when I could."
One truckdriver, other than Stevens, was terminated
by the Respondent after he refused to deliver a load.
That happened about 1 year prior to June 26, 1980. The
employee involved was named Dan Ashley. Haskins ter-
minated Ashley because Ashley refused to take a back-
hoe to an IBM jobsite. Ashley was a member of the
Union at the time.
5. The events on June 26, 1980
On June 26, 1980, Stevens delivered a load for Beech
Aircraft. He left the Respondent's shop at 8 a.m. that
day, and he returned to the shop at 1:15 p.m. Stevens
worked through his lunch hour. He drove the Interna-
tional truck known as T-23 for the Beech Aircraft deliv-
ery.
Also on June 26, 1980, dispatcher MacPherson re-
ceived a telephone order from Roland Bickhard of the
Bickhard Construction Company for the delivery of a 5-
yard load of inch-and-a-half rock to the Boulder Memo-
rial Hospital jobsite. Bickhard specified that the delivery
was to be made before 2:30 p.m. that same day, and that
the delivery be made in a small truck so that it could get
into the area.
After Stevens returned to the shop from the Beech
Aircraft delivery that afternoon, he and MacPherson had
a brief conversation. Stevens testified: "Dawn just said
she had a load for me in T-10, and I waited for a couple
of minutes, and she didn't say anything so I told her I
was going to go out to the shop, or the waiting room,
and eat my lunch."
Next, MacPherson informed General Superintendent
Clark about the order which had been received from
Bickhard Construction, as described above. To Clark's
knowledge, MacPherson had not asked Stevens to take
that load of rock. Clark also testified:
Okay. Dawn MacPherson, dispatcher at the time,
told me we had to get a load of rock to Bickhard
Construction. I asked her who I had in the shop
and she said Jim was in. So, I went immediately to
the shop office and Jim was in there. I think he was
changing his shoes or something. I said, "Jim,
would you take that load to Bickhard at the hospi-
tal? It's a load of inch-and-a-half washed rock on T-
10." He said, "No."
Well, that's the first time I'd ever been-some-
body had actually said, "No, I'm not going to do
that." So I just turned around, and I had another
man there in the shop, one of the shop helpers, and
I asked him, I said, "Ed, would you take that load
to Bickhard Construction?" He said, "Yes." So, Ed
delivered the load.
Q. Was Ed a truck driver?
A. Yes. He was also shop helper and anything
else we needed.
Concerning Ed Roe, Clark also testified: "He would
sweep the floors, break tires, anything else we needed
like that. If we got in a bind in the field and needed an-
other truck out, we had one in the yard, Ed would drive
a truck." However, Roe worked primarily as a shop
helper, as distinguished from a truckdriver, and Clark
pointed out at the hearing that Stevens was the only one
in the truckdriver classification who was available at that
point in time to make the Bickhard Construction deliv-
ery by 2:30 p.m. Clark also pointed out that the T-10
was the only truck which the Respondent had that
would be able to make the delivery to the north side of
the Boulder Memorial Hospital jobsite. (Note the preced-
ing section regarding the use of the T-10 in two earlier
deliveries to that jobsite.) With regard to the absence of
a window on the driver's side of the T-10, Clark ac-
knowledged that there may have been some thunder-
storms that day in Boulder, but that there was not con-
stant rain. The Bickhard Construction delivery was made
that day in the T-10 by Roe. The records disclosed that
Roe left the Respondent's facility at 1:15 p.m., and that
he returned to the dispatch office at 2:40 p.m. that day.
Haskins was first informed about Stevens' refusal to
make the Bickhard Construction delivery by means of a
two-way radio conversation. Haskins spent most of the
day on June 26, 1980, in Denver at the Hewlett-Packard
office. He returned to the Respondent's office in Boulder
about 4 p.m. At that time Clark spoke in person with
Haskins and recommended to Haskins that Stevens be
terminated. Clark testified:
He wasn't angry. I told him the circumstances
behind it; that Jim had refused to drive the truck,
and that this is the fourth or fifth time he has re-
fused to do something around Boulder Excavating,
and I couldn't function with an employee like that.
And he said, "Well, think about it, calm down, and
we'll see what happens." But I did make my recom-
mendation.
The reference to the person who was not angry at that
time was to Haskins, who acknowledged that he has a
temper.
6. The events on June 27, 1980
Haskins did not make his decision to terminate Stevens
until the next day, which was Friday, June 27, 1980.
Haskins explained at the hearing why he did not make
the decision on Thursday: "Well, to think on it a day,
figure out exactly what I was doing. It's hard for me to
terminate somebody. I really had to think about it, and
that's why I took a day to think about it."
About 4 p.m. Haskins came into the dispatch office
and told Clark, "Well, I'm going to take your recom-
mendation." Then Haskins left for a nearby bar, which is
called "The Bus Stop," to collect for some repair work
which the Respondent earlier had performed on the
parking lot. A few minutes later, Stevens came into the
dispatch office, and he told Clark that he wanted to
speak with Haskins. Clark replied that Haskins was not
there at the moment, but that Haskins would be back
shortly.
When Haskins returned in a few minutes to the Re-
spondent's facility, he and Stevens had their final conver-
sation in which Haskins terminated Stevens. However,
Haskins stated at the hearing that he had already made
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
up his mind to terminate Stevens prior to his last conver-
sation with Stevens. As indicated previously, Haskins
could not recall the sequence of the events during his
conversation with Stevens. Haskins testified with candor,
"I can't recall the order of the conversation. I recall his
threats, and I recall that I terminated him, and I don't
know which occurred first."
Stevens described his conversation with Haskins on
June 27, 1980, as follows:
I told Steve I thought we had better have a little
discussion over the way the work was going and so
forth. He had made several commitments to me;
none that had come through, such as, they were
going to get uniforms for me, I was going to be on
the company medical policy. I was supposed to
have been in the union by then. Steve had agreed to
get me in the union and pay the contract scale for
whatever work I was doing, which never came
about.
I was just rather concerned that now, because all
this had transpired, my hours had dropped dramati-
cally that week, new drivers had been hired on, I
told him I didn't really think it was right. I had
stayed through the winter when they were saying,
"Well, stay through the winter; come Spring there
will be work and we'll get you in the union and so
forth." None of this was developing.
Q. This is what you said to Mr. Haskins?
A. To Mr. Haskins, yes. I told him that I thought
I had played fairly with the company, been honest
with them, and I had just been shafted for the expe-
rience. At that point Steve said he had never had
anybody speak to him ....
THE WITNESS: Well, after the point where Steve
said he had never had anyone speak to him that
way before and he didn't like it, I told him, "Well,
here's something else you probably won't like
either. If we cannot come to an understanding here,
I'm going to contact every labor organization,
union hall, and I think the IRS would be interested
in your policy of paying cash occasionally, and I'll
contact every outside force I can think of in order
to get some satisfaction here."
At that point Steve told me, "If that's the way
you feel about it, the only reason you have to come
in to work on Monday is to pick up your check." I
asked him, "Are you firing me?" He said, "I have
no choice. You refused to do some work for us, and
I have no choice." I wanted him to clarify that
point so I said, "You are firing me." He said, "Yes."
At that point I told him, "Well, let's go inside
and make the check out now because I see no sense
in driving back over here from Longmont Monday
just to pick up a check."
After the foregoing had taken place, Haskins spoke to
Clark and told him, "Jim is gone." That occurred about
4:20 or 4:25 p.m.
At the hearing Haskins offered this explanation as to
why Haskins had not terminated Stevens earlier for his
refusals to drive Dodge trucks: "Benefit of the doubt. I
thought we could get things worked out to where Jim
could get in the union and work as an oiler for us."
7. The unemployment compensation finding
Introduced into evidence as General Counsel's Exhibit
5 was a copy of the first page of the claim filed by Ste-
vens with the State of Colorado Department of Labor
and Employment with regard to Stevens' termination by
the Respondent. The claim form indicates that it was
filed on July 8, 1980. Haskins said at the hearing, "I re-
member seeing it, but that's all I remember about it."
Haskins acknowledged that the Respondent had not con-
tested Stevens' unemployment insurance claim. He indi-
cated that it was the policy of the Respondent to allow
former employees to obtain unemployment compensation
benefits even though the payment of such benefits cost
the Respondent in deductions made by the State of Colo-
rado. However, Haskins stated that he had contested two
other unemployment compensation claims because the
employees had quit working for the Respondent during
the busy season and then moved away.
Introduced into evidence as General Counsel's Exhibit
3 was a copy of the decision made by the State of Colo-
rado Department of Labor and Employment regarding
Stevens' claim. The form indicates that either party had
the right to appeal that decision and have a hearing held
on the matter before a referee. However, as indicated
above, the claim was not contested. Thus, the initial ad-
ministrative decision became final for unemployment
compensation purposes. The "findings of fact and con-
clusion" set forth in General Counsel's Exhibit 3 indi-
cates:
The claimant was discharged after questioning the
employer about unfair labor practices. Evidence
substantiated by the claimant indicates the employee
was assigned additional duties that were not speci-
fied at the time of being hired. It is determined that
the employer is responsible for the separation.
Under Section 8-73-108(4) of the Colorado law, the
claimant is entitled to a full award of benefits.
8. Conclusions
As discussed in the previous section, the decision of
the State of Colorado Department of Labor and Em-
ployment regarding the Respondent's termination of Ste-
vens was received into evidence in this proceeding. The
Board has indicated that such a decision by a state
agency is admissible into "evidence for whatever proba-
tive value it may have." Supreme Dyeing & Finishing
Corp and Valley Maid Co., Inc., 147 NLRB 1094, 1095,
fn. 1 (1964). However, the Board pointed out that the
determination of the state agency was not controlling.
Instead, in Bolsa Drainage, Inc., 242 NLRB 728 (1979),
the Board held in fn. 1:
The state agency's determination was rendered
under a statute with different definitions, policies,
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BOULDER EXCAVATING COMPANY
and purposes than the National Labor Relations
Act. Respondent does not show that the unfair
labor practices issues in this matter were considered
by the state unemployment tribunal. Our Decision,
and that of the Administrative Law Judge, must be
based upon an independent consideration and evalu-
ation of the evidence received in this unfair labor
practice proceeding.
With the foregoing guidance from the Board in mind,
I conclude that the state agency determination regarding
Stevens is of little probative value in the circumstances
presented here. It will be recalled that the decision was
not contested and apparently was based solely on the
evidence presented by the claimant and without a hear-
ing by a referee. That observation is not made in any
way critical of the state agency. The procedures for
appeal and a hearing are clearly spelled out in General
Counsel's Exhibit 3, but those procedures were not in-
voked. In any event, as the Board has held in Bolsa
Drainage, supra, an independent consideration and evalu-
ation of the evidence is necessary.
In examining the evidence presented in this case, it ap-
pears that the Respondent has encouraged employees to
advance their careers with the Respondent by acquiring
the skills of an operating engineer. Thus, new employees
have been informed of the Respondent's expectations in
that regard, and specifically in the case of Stevens, he
was encouraged to learn the job of oiling as a first step
in becoming an operating engineer. Note also that Clark
encouraged Stevens to learn how to operate a backhoe
in the Respondent's yard. (See sec. 4 herein.) Rather
than discouraging union membership, the evidence shows
that the Respondent's management lent encouragement
to Stevens to acquire an operator's skills and to join the
Union. It will be recalled that it was Haskins who spoke
to the Union's business agent in January or February
1980 regarding Stevens, and it was Haskins who instruct-
ed Clark to fill out the union application form for Ste-
vens. Then Haskins advised Stevens of the hours during
which the union hall was open, and Haskins inquired
whether Stevens was going to the union hall. It was only
after Haskins declined to pay Stevens an operating engi-
neer's wage rate for Stevens' driving a truck that Stevens
indicated that he was not going to join the Union. Of
course, the truckdriver's job classification was not cov-
ered under the collective-bargaining agreement between
the Union and the Respondent, although the Respondent
had paid some longtime operators their contract wage
rate when they performed truck driving work.
The foregoing circumstances do not suggest an em-
ployer with a bent towards discouraging union member-
ship or activities among its employees. Nevertheless, it is
urged by the General Counsel that Stevens was seeking
to enforce the terms of the union contract when he re-
fused to perform the task of oiling. As indicated in sec-
tion 3 herein, Haskins stated that Stevens' refusal to oil
was "a small reason" and played "a minor part" in Ste-
vens' termination. Without repeating the findings of fact
which are set forth in section 4, it will be recalled that
the Respondent paid its truck drivers a higher rate of
pay when they performed operator's work, but even so,
the higher rate of pay was $1 an hour less than the union
scale in the contract. Thus, by refusing to perform the
task of oiling, Stevens was in effect refusing to work in a
job covered by the collective-bargaining agreement at a
wage rate which was less than the wage rate provided
for in the contract. However, it appears that the union
was at least aware of the fact that truckdrivers and la-
borers sought to advance their careers by gaining experi-
ence through on-the-job training in operator's jobs. (See
sec. 2 herein.) Particularly during the busy season, such
persons would have the opportunity to move up into op-
erating engineers' positions, if earlier they had acquired
the necessary experience. (See sec. 2.) The logical result
of such career advancement would be more members for
the Union because those persons would be working
under the terms of the collective-bargaining agreement
and the union-security clause would apply. (See G.C.
Exhs. 2 and 2(a).)
Significantly, Stevens was not terminated, nor even
disciplined in any way, for his refusal to perform the task
of oiling. It was only after Stevens refused to deliver the
load for Bickhard Construction to the Boulder Memorial
Hospital jobsite on June 26, 1980, that Stevens was fired.
I conclude that it was Stevens' refusal to deliver the load
on June 26, 1980, which precipitated his termination by
the Respondent. His earlier refusals to perform certain
work, such as oiling or driving the Dodge trucks, had
been condoned by the Respondent. Haskins had felt that
he could "work around them," and he felt that the
matter would straighten itself out because he expected
Stevens to become an oiler, rather than a truck driver,
for the Respondent. The Respondent's willingness to
overlook Stevens' earlier refusals to work, and to take no
disciplinary action regarding them, is not illogical in
view of the favorable opinions unanimously held by
management of Stevens' ability as a truckdriver. (See
sec. 4 herein.) In these circumstances, it seems reasonable
to infer from the facts that Stevens' good job perform-
ance made him a valuable employee to the Respondent
and caused the Respondent to acquiesce in Stevens' ac-
tions up to a point.
The Respondent's leniency with Stevens ended abrupt-
ly on June 26, 1980, when, in General Superintendent
Clark's view, Stevens refused to work once too often. As
Clark told Haskins that afternoon when Haskins returned
to the Respondent's facility, ". . this is the fourth or
fifth time he has refused to do something around Boulder
Excavating, and I couldn't function with an employee
like that." (See sec. 5 herein.) Thus, it was the repeated
nature of Stevens' refusals which finally prompted Clark
to recommend that day that Stevens be fired.
As indicated in section 6, I found to be credible the
fact that Haskins had made his decision to terminate Ste-
vens prior to the conversation late in the afternoon of
June 27, 1980, between Haskins and Stevens. Haskins'
testimony in that regard finds support in Clark's testimo-
ny that Haskins told him prior to that conversation,
"Well, I'm going to take your recommendation." (See
sec. 6 herein.) Under those circumstances, I conclude
that the evidence shows that Haskins had already made
up his mind to terminate Stevens prior to their conversa-
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion that afternoon, and, thus, the matters asserted by
Stevens in that conversation did not result in his termina-
tion.
Finally, I conclude that the Respondent's action in ter-
minating Stevens was not without precedent. About a
year earlier, Haskins had terminated another employee,
Dan Ashley, for refusing to make a delivery to a jobsite.
(See sec. 4 herein.)
After considering all of the foregoing, and the argu-
ments persuasively presented by the attorneys, I con-
clude that the Respondent has established that the termi-
nation of Stevens would have taken place on June 27,
1980, even in the absence of any union activities or pro-
tected activities by Stevens. Wright Line, a Division of
Wright Line, Inc., 251 NLRB 1083 (1980). Accordingly, I
further conclude that a preponderance of the evidence
does not show that the Respondent has violated Section
8(a)(l) and (3) of the Act, and I must recommend to the
Board that the General Counsel's complaint be dismissed.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce and in an industry affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The Respondent has not engaged in the unfair labor
practices alleged in the General Counsel's complaint in
this proceeding for the reasons which have been set forth
above.
Upon the basis of the foregoing findings of fact, con-
clusions of law, and the entire record in this proceeding,
and pursuant to the provisions of Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 1
It is hereby ordered that the complaint in this proceed-
ing be dismissed in its entirety.
In the event that no exceptions are filed, as provided by Sec. 102.46
of the Board's Rules and Regulations, the findings, conclusions and rec-
ommended Order herein shall, as provided in Sec. 102 48 of the Board's
Rules and Regulations. be adopted by the Board and shall become its
findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
1290