Hartmann Co., Inc.

412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hartmann Co., Inc., and Harry A. Switzer. Case 25-CA-3639 December 23, 1970 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On August 4, 1970, Trial Examiner Ramey Dono- van issued his Decision in the above-entitled proceed- ing, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the Trial Examiner's Decision. Thereafter, the Respondent filed a motion to reopen the record, exceptions to the Trial Examiner's Decision, and a supporting brief. The General Counsel filed an opposition to Respon- dent's motion to reopen the record and a brief in support of the Trial Examiner's Decision. Pursuant to the provisions of 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,' the briefs, and the entire record in the case, and hereby adopts the findings,2 conclusions, and recommendations of the Trial Examiner. Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommend- ed Order of the Trial Examiner and hereby orders that the Respondent, Hartmann Co., Inc., Terre Haute, Indiana, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. i Respondent's motion to reopen the record to adduce additional testimony is hereby denied , as in our opinion adequate opportunity was available for Respondent to fully litigate this case at the hearing and insufficient reason appears for any reopening of the record at this time 2 The Trial Examiner's Decision is amended to reflect the fact that the charge was filed on January 20, 1970 The Board does not adopt that portion of the Trial Examiner's Decision in which he appears to have partially relied upon the October 1969 picketing in finding a violation of the Act against Respondent as of September 21, 1969 TRIAL EXAMINER'S DECISION RAMEY DONOVAN , Trial Examiner : Tne charge in this case was filed on January 10, 1970, by Harry A. Switzer, an individual, against Hartmann Co., Inc., herein Respondent or the Company . The complaint was issued by the General Counsel of the Board on April 30, 1970, and alleged that Respondent had violated Section 8(a)(1), (3), and (4) of the Act by refusing to employ Harry Switzer because of activities of Switzer protected by the Act. Respondent, in its answer, denied the commission of unfair labor practices. The trial of this case was held in Terre Haute, Indiana, on May 19, 1970. Upon the entire record and from observation of the witnesses, the Trial Examiner makes the following: FINDINGS AND CONCLUSIONS 1. JURISDICTION Respondent is an Indiana corporation with its principal office and place of business at Terre Haute , Indiana, where it is engaged in business as a roofing and sheet metal contractor. In a representative 12-month period, Respondent, in the course and conduct of its business, purchased, transferred, and delivered to its place of business , aforementioned, goods and materials valued in excess of $50,000, which were transported to its place of business directly from States other than Indiana. During the same period, Respondent purchased, transferred, and delivered to its place of business goods and materials valued in excess of $50,000 which were transferred to said place of business from enterprises located in Indiana and these enterprises had received the goods and materials from States other than Indiana. Respondent is an employer engaged in commerce within the meaning of the Act. United Slate, Tile and Composition Roofers, Damp and Waterproof Workers Association, Local 150, herein the Union, is a labor organization within the meaning of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background John Hartmann, president and manager of Respondent, has been in the roofing business many years. His Company is one of five roofing contractors in Terre Haute who, for a period of years, have jointly negotiated contracts with the Union under the group name of Terre Haute Roofing Contractors Association. Respondent, from the standpoint of number of employees, is the largest contractor in the group. The business agent of the Union's local in Terre Haute for 14-15 years and up until about 2 weeks prior to the trial of the instant case was Anthony Jackewicz. For about 9 years, and at the time of the trial, Jackewicz has been employed by Hartmann as a roofing foreman . As business agent, Jackewicz worked part time and received no salary from the Union. The latter did pay for the business agent's expenses for union business and reimbursed him for wages lost when he was functioning as business agent rather than as foreman. The foremen are working foremen but, in our opinion, they are supervisors within the meaning of the Act and Respondent has not contended that its foremen are not supervisors. When a foreman is assigned a crew by the superintendent, the foreman supervises and directs the men in their work on the jobsite; he assigns the men to the tasks 187 NLRB No. 43 HARTMANN CO, INC for which he regards them as best suited and he can move them from one task to another, the foreman can decide to have his men work overtime for brief periods if it is in the company interest to do so, he may also grant permission for a member of his crew to leave work early on a particular day, on a job in town, in the immediate Terre Haute area, the foreman, after arrival on the,Jobsite, may decide that he has one too many in his crew and will so advise the superintendent, on out-of-town jobs, the foreman will, or may, have authority to hire locally according to need, as a part of his supervision, the foreman takes care of material andjob tickets which show the amount of material and time used on the job and these tickets are turned in when the job is completed, there is uncontroverted testimony that, when a particular individual was named foreman, John Hart- mann advised him that if an employee did not do his work, the foreman could send the employee to the office and the latter would not be coming back to work B Harry Switzer Harry Switzer had commenced working as a roofing employee for Paitson Roofing Company around 1958 He then worked for Fiblack Roofing Company Both these companies were in Terre Haute After about 4 years in the U S Marine Corps, Switzer was employed as a roofer by Respondent from March 1965 to July 1968 During this period he worked under various foremen, including Robert Medley, James Medley, Anthony Jackewicz, and Ernie Hartmann, who is the uncle of John Hartmann, owner and manager of Respondent Bill Switzer is an older brother of Harry He was employed as a foreman by Respondent from about 1966 to the middle of 1968, when he quit While working for these foremen Harry performed all types of roofing work, including what is referred to as buildup work (most industrial and commercial buildings have flat roofs, the roofing, briefly described, for such roofs consists of layers of building paper or felt applied seriatim, built up with hot coatings of liquid roofing material applied to each layer), shingle work (private dwellings, churches, and some other buildings usually have pitched rather than flat roofs and they are roofed with shingles of various types, the most common types probably being asphalt shingles, and slate work (usually on steep roofs) None of the foremen or any other supervisor ever criticized or found fault with Harry Switzer's work or attitude and they spoke of his work in complimentary terms The common appellation used for Harry Switzer at Respondent's was "Harry the Horse," which was used in tribute to his working capacity i In the latter part of 1966, when Carl, another brother, Bill, and Harry Switzer were all employed by Respondent, i For instance, Jackewicz, under whom Harry had worked on several of Respondent's jobs, used the name 'Harry the Horse because He [Harry] really carried his share of the load ' Foreman James Medley testified that he called Harry Switzer Harry the Horse, because he was strong and was always doing or trying to do more work than others 2 We have previously referred to both Bill and Harry Switzer Carl Switzer, the oldest of the three, was also a roofer employed by Respondent Although the precise period is not entirely clear, Carl Switzer was the union shop steward during his employment He quit Respondent s employ in the latter part of 1968 3 The period of discharge was evidently brief since Harry Switzer 413 they were discharged for engaging in roofing work outside their employment with Respondent 2 On the relatively brief description of this matter in the record, it appears that the Switzers, on their own time, had performed some roofing work for a third party and were paid directly by the latter Respondent discharged the Switzers because it considered that they had engaged in competition with its roofing business However, Respondent subsequently rehired all three brothers 3 They continued in Respondent's employ into 1968 4 Harry Switzer testified that, in February 1968, he received a back injury on the job Respondent arranged to have Switzer go to Doctor Kunkler, the insurance carrier's doctor Although the time periods of various happenings are not too clear from the record, there was a point when the insurance adjuster advised John Hartmann that Doctor Kunkler could find nothing wrong with Switzer's back 5 Switzer was aware of the doctor's finding and evidently had been so advised by the doctor 6 It was then decided that Switzer should be sent to Doctor Burkle This was done and Doctor Burkle could not find anything that was causing back trouble 7 During this February to July 1968 period, Switzer was in St Anthony's Hospital for 7 days At some later point before he returned to work, Switzer had gone to a Veterans Administration hospital but as far as appears was not hospitalized at that facility In this connection Switzer was asked at the hearing Q And did any of these people find anything wrong with you'l A Yes, sir At the last they said that I had a case of muscle spasms, at the last point Hartmann testified that he had been in touch with his insurance company as soon as he had learned of Switzer's injury Thereupon, as we have previously indicated, Switzer was sent to Doctor Kunkler, the insurance carrier's physician From the nature of the situation, it is a fair conclusion that all the foregoing took place soon after the reported injury Equally evident would be the interest of the insurance company and Hartmann in what the physician's examination would reveal In fact, Hartmann was advised by the insurance company, and we assume that it was with reasonable promptness, that Doctor Kunkler "couldn't find anything wrong with his [Switzer's] back" Hartmann concurred with his insurance carrier, that Switzer should be examined by Doctor Buckle This was done and Hartmann was advised that Burkle could not find "anything that was causing back trouble " "About that time," according to Hartmann, he had a conversation with Switzer in which the latter allegedly said "oh, I've got to quit roofing, it hurts my back too much I have to quit roofing That's what the doctor said "8 The last mentioned medical conclusion had in no way been indicated in the first hand medical reports testified that after the discharge he was rehired in about 11/2 weeks 4 Bill Switzer also again worked for Respondent in 1%9, until about December 1%9 when he quit S We do know that the matter of Switzer's claimed back injury began in February 1968 and that he returned to work in July 1%8 6 Switzer testified that he had told employee Sumner that 'he doctor couldn t find anything that was wrong with my back, what was causing the injury r Switzer affirms that this was Doctor Burkle's finding but he states that the doctor did not say that there was nothing wrong with Switzer's back 8 Switzer did not refer to any such conversation in his testimony 414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD received by Hartmann, nor had he been told that although nothing had been found wrong with Switzer's back the doctor or doctors had concluded that, because of his back and presumably, as a result of the injury, Switzer should quit roofing. Such a conclusion, that Switzer must quit roofing, would most certainly have been communicated to Hartmann by the insurance company or by the physician's reports if it was the fact; and we believe that Hartmann must have been aware of this gap. If he had any question in his mind as to the asserted medical prognosis, he might reasonably have been expected to recheck the situation since Switzer's report did not jibe with any information that Hartmann had received from the insurance company or its doctors. But Hartmann's testimony indicates that he neither expressed any doubt about Switzer's condition to the employee nor rechecked the situation. After recounting what Switzer had told him about the doctor advising him he would have to quit roofing, Hartmann, in his testimony, simply said, "So that was just it." 9 Continuing with his description of events, Hartmann testified that after the above conversation with Switzer, the latter then came in and told Jackewicz that he wanted to go back to work. Jackewicz reported this to Hartmann. Then, "In the meantime," according to Hartmann, he had heard from some undisclosed source that Switzer had told employee Sumner that "he didn't want to go back to work" because he was going to get a big settlement from the Company. Sumner, an employee of Respondent for 19 years, who was a sheet metal worker, testified that "I recall speaking to him [Switzer] vaguely one afternoon-in the shop." Sumner states that he asked Switzer when he was coming back to work and Switzer said "he wasn't going to come back to work . . . he said he was getting enough money out of his injury, he wouldn't have to work." Sumner states that "I believe I did tell somebody right at that time [what Switzer had said] that was helping me." We are not told who the latter was nor do we know from whom Hartmann allegedly learned about the conversation. For purposes of verifica- tion or corroboration, therefore, both Sumner and Hart- mann have presented a blank wall in the record regarding the incident. Switzer states that on one occasion when he went to the shop for his $25 weekly payment, Sumner asked him how his back was. Switzer replied that he was still having pain in his back but the doctors could find nothing wrong with his back. Sumner then suggested that he go to a hospital in St. Louis that had helped or cured Sumner of some back ailment. (In his testimony, Sumner at first could not remember any conversation about a St. Louis hospital but 9 In addition to the real or potential insurance liability, ultimately reflected in insurance rates, in a situation where a man after an injury on the job is medically told that he must abandon his trade , Hartmann's company, under a separate contract, apparently with the Union, was paying Switzer $25 per week to supplement any workmen' s compensation in spite of all these circumstances, Hartmann displayed no interest in determining whether in fact any doctor had told Switzer what the latter asserted or in determining what Switzer's precise status was from the medical and insurance standpoint io When Switzer had inquired about his job and going back to it, Jackewicz testified that he had told him, "You've never been laid off." This was apparently true and Jackewicz, we believe , had this in mind in connection with the provisions of the contract, when he later advised he later recalled the reference as testified to by Switzer.) Switzer, having mentioned to Sumner that the doctors had found nothing wrong with his back, said, with reference to the St. Louis hospital suggestion, that he did not have the money to go to St. Louis "because ... the insurance will not pay it. Dr. Burkle has said there's nothing he could find that's causing my trouble." Switzer said that the only money he had was the $25 weekly from the Company but that if he received any compensation money he could live on it until he could get back to work. Before resolving the foregoing conflict in testimony, we will recount some succeeding events. There came a time, evidently around June 1968, when Switzer told Jackewicz, who wore the two hats of foreman of the Company and business agent of the Union, that he wanted to go back to work. Jackewicz testified that he told Switzer that the latter would have to get a release from the doctor before he could go back. Jackewicz states that he told Hartmann of the conversation and advised Hartmann that he could not put Switzer back "now because he hasn't got a release" but that when Switzer secured his release he would be entitled to his job.10 After Switzer secured a medical release, he was put back to work about July 12 or 13 and was discharged by Hartmann at the end of that first day. The only reason given by Hartmann to Switzer was that he did not need him anymore. When Jackewicz and the other employees learned of the discharge, Jackewicz told Hartmann that he and the men did not like what Hartmann had done. According to Jackewicz, "We thought he got fired unjustly" and he told Hartmann that the men were going on a 2-day strike in protest. Jackewicz states that Hartmann reiterated that he had fired Switzer. Jackewicz asked, "What for?" Hartmann replied, "For his attitude towards his work." Jackewicz said, "That's not a good reason"; Hartmann said, "That's right." 11 The foregoing credible testimony of Jackewicz, covering the period from the time Switzer made known his desire to return to work and up to and including his discharge in July, does not reveal that Hartmann even indicated that he had discharged Switzer because he considered him to be a malingerer who had said (a) to Hartmann that the doctor had advised him that he had to give up roofing because of his back; and (b) to Sumner that he was not going to return to work because of the big settlement he was securing. A discharge on such grounds as far as appears would have been perfectly legal. Further, if such was what was in Hartmann's mind, confronting Switzer with such allega- tions would have been a normal action and would have put the cards on the table for all, including fellow employees, to know. Hartmann of the obligation to take Switzer back when a medical release was secured The contract provided that "In the event a workman is unable to work because of sickness or accident such workman shall, upon his return to work, receive his former position without loss of seniority " We do not believe that the contract required an employer to reinstate a man who had faked an injury and had revealed himself as a malingerer , which is how Hartmann allegedly regarded Switzer ii We do not regard Jackewicz as a witness hostile to Respondent At the time of the hearing, his sole employer was Respondent and Jackewicz was a foreman Even in the prior period when Jackewicz was both a foreman and business agent, he received no salary from the Union and was primarily dependent upon his wages from Respondent Jackewicz was a witness called by Respondent. HARTMANN CO., INC. Since Switzer was aware, and presumably aware at an early stage, that both Doctors Kunkler and Burkle could find nothing wrong with his back, and was presumably aware, as any reasonably intelligent person would have been, that Hartmann would be cognizant of the findings of his Company's insurance doctors, it is difficult to believe that Switzer was telling Hartmann and Sumner, respective- ly, that, in effect, he was never going to be able to return to work because of what the doctor had told him and that, anyhow, he was securing such a substantial settlement, that he had no intention of working. And, then, of course, Switzer admittedly applied to return to work. We perceive no consistency in this picture and we believe that if this was the series of events that occurred, as Hartmann testified, he would have at least attempted to ascertain if the doctor, contrary to the import of what Hartmann had been told by the insurance company, had told Switzer that he would have to give up roofing because of his back or that Switzer was going to receive a large settlement for his injury so that he would never have to work despite the fact that both doctors had reported to both Switzer and Hartmann that they could find nothing wrong with Switzer's back. If Hartmann believed that Switzer was a dangerous and costly faker of an injury, Hartmann could have readily, and normally under the circumstances would have, adduced convincing evidence that Switzer had deliberately misrepresented what the doctor had told him. Or, at least he could have confronted Switzer, when he applied for work, with the reports that Hartmann allegedly had at the time about not returning to work because of a large settlement and so forth. Or, he could have discharged Switzer expressly stating such reasons and could have told Jackewicz the alleged reason for the discharge. But he did none of these things.12 Since the complaint alleges a discriminatory refusal to employ Harry Switzer since July 1968, we do not have before us a question of adjudicating whether or not Switzer's discharge on July 13, 1968, was illegal. However, we have been considering and will further consider the circumstances of the discharge as part of a total picture in order to determine the issue posed by the complaint. The point we have reached is the discharge of Switzer and what Hartmann told him and told Jackewicz at that time as the reason for the discharge.13 There was a 2-day strike when Switzer was discharged and the employees returned 12 As to Sumner's testimony , the Examiner doubts that the witness deliberately falsified his testimony . As he stated himself, he "vaguely" remembered the encounter with Switzer . At first he did not remember at all the topic of the St. Louis hospital and then recalled that this aspect has been discussed at some length , including his own cure at that hospital. There was reference to insurance compensation in the conversation but we incline to believe that it was not in the context described by Sumner. We do not believe that Switzer said that he was not going back to work because of the large settlement he would be receiving. 13 Switzer feed a charge against Respondent on October Il, 1968, alleging that his discharge had been discriminatory. This charge was dismissed and the dismissal was sustained on appeal . The dismissal of a charge does not make the subject matter of the charge res adjudicata although Section 10(b) of the Act may prevent subsequent action on the charge. Jersey City Welding & Machine Works, Inc., 92 NLRB 510. 14 The union contract with the Employer provided that the latter recognized the Union "as the proper source from which to obtain said workmen, whenever available" but that if after at least 48 hours, the Union 415 to work when an International representative of the Union came to town and directed them to return. Jackewicz testified that he spoke to Hartmann two or three times about employment for Harry Switzer, beginning about 2 weeks or a month after the July 1968 discharge.14 Hartmann consistently said he would not hire Switzer.15 Switzer talked to Hartmann several times about securing employment but he could not fix the dates of such conversations. At first Hartmann told Switzer he had nothing to say to him. On other occasions he said he would not hire him. Employee Hogle has worked as a roofer for Respondent for about 7 1 /2 years and was president of the local union. He was discharged for being absent from work by Respondent early in 1970 but he was hired back soon after.16 Hogle testified credibly that he has worked on jobs with Harry Switzer many times and that Switzer did his share of the work and more. He stated that Switzer was called Harry the Horse because of the heavy work he performed. Hogle states that he had never known Switzer to have been a troublemaker. Because Harry or his brother asked him to do so and because Hogle wanted to see Switzer get back to work, Hogle talked to Hartmann about Switzer in the late summer or early fall of 1969. Hartmann said he was not going to hire Harry-he did not need anybody- and besides, he said, Harry had cost him a lot of money.17 Burns, a supervisor of Respondent, was present during the conversation. Later, after Hartmann left, Hogle spoke to Burns, remarking that the Company could use some good roofers. Burns agreed but said that Harry Switzer was a "troublemaker." Burns did not testify. Hartmann states that he did not really recall the above conversation with Hogle but said that he would not deny it. Respondent hired a journeyman roofer, Jerry Conard,18 on September 21, 1969, shortly after the Hogle-Hartmann and Burns conversations above. In the latter part of 1969, Carl Switzer testified credibly that Hartmann said to him, "I wouldn't hire any of you brothers because you cause me too damn much trouble, especially that brother of yours, Harry." Around October 1969, Billy Switzer, while employed by Respondent, was working under Foreman Robert Medley. Billy Switzer told Medley that his brother, Harry, who was a good roofer, was hurting because he could not get ajob. Medley said, "Harry hurt himself due to the N.L.R.B." 19 We have described some of the testimony of Jackewicz, could not furnish the workmen, the employer may secure employees "from other sources." 15 At a later point we will discuss testimony regarding the reasons given for not hiring Switzer and what Jackewicz allegedly reported to others. 16 Jackewicz testified that it was not unusual for Hartmann to rehire people whom he had discharged and that there were others besides Hogle who had been rehired. Earlier, we have seen that in 1966 Hartmann discharged the three Switzer brothers for doing roofing work on their own but that he rehired them within a few weeks. 17 As the result of the charge that Harry Switzer had filed against Respondent in October 1968, Respondent engaged an attorney. While the latter's fee was relatively modest, it was nevertheless an expenditure and, also, because of the charge, Hartmann was obliged to devote some time to the investigation, including interviews and the giving of an affidavit. 18 Spelled Connor in the transcript. 19 It is reasonably clear that the reference was to the unsuccessful charge that Harry had filed against Respondent with the Board. 416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent's witness, regarding his conversations with Hartmann at the time of Harry Switzer's discharge in July 1968. Jackewicz also testified that he had thereafter talked to Hartmann on several occasions as to why he would not rehire Switzer. On direct examination, Jackewicz stated that the reason given to him by Hartmann as to why he would not rehire Switzer was what Hartmann had said in an affidavit regarding Switzer's October 1968 charge. Accord- ing to Hartmann, these reasons were: Switzer had a negative attitude; he was a troublemaker; and he was not interested too much in his work. Jackewicz said that he reported the foregoing to the Switzers at several union meetings. On cross-examination, Jackewicz, referring to the same topic, reiterated that he had talked to the Switzers on several occasions about why Hartmann would not rehire Harry. The witness was then asked the simple question, Q. And you've told Carl and Bill Switzer what? A. The reason he [Harry] couldn't get hired at Hartmann Co., it was when he filed charges against John [Hartmann], and they came back dismissed, and that's the reason he [Hartmann] give . . . the reason that he fired him and will not hire him back.... . Q. That isn't what you told your attorney on direct, is it? A. Well, that's the same thing. Q. The same thing? A. Uh huh. While Jackewicz's testimony on the foregoing aspect is not too precise (the charge obviously was not a reason for the discharge), we are satisfied that the filing of the charge and its dismissal for lack of ment, was a factor in the adamant refusal to rehire Switzer although Respondent had rehired employees whom it had discharged for cause at one time or another.20 Respondent's basic position as to why it would not rehire Switzer appears to be that it was because Hartmann considered Harry Switzer to be a troublemaker, and a man with a negative attitude who was not too much interested in his work. The task of discerning what Hartmann meant by these terms was complicated by Respondent's insistence on referring to the three Switzer brothers jointly rather than focusing on Harry specifically when particularization was requested as to Harry Switzer's alleged deficiencies. Hartmann was asked whether he had had any trouble with Harry Switzer as an employee prior to the time that Harry was first discharged. He replied that it was "difficult to separate the Switzers as to what they did or what they didn't . . . if there was some trouble that came up it was one of the Switzers . . . which one it was never always quite determined . . . . But we've had various work stoppages just due to the Switzers, nobody else." The witness was once more asked specifically about Harry and he replied that the Company had received telephone calls from credit bureaus and loan companies and "somebody had a check that bounced" but Hartmann testified ". . . it's difficult to separate this one man ... I'm not going to pinpoint on any one man because again were talking about the Switzers . ." Having thus described why Harry Switzer, or rather why he regarded all the Switzers as troublemakers, Hartmann then came to the July 1968 discharge of Harry Switzer and he stated that he discharged him because "I didn't like his work." Q. All right. Can you be any more specific than that? What were your reasons ... . The witness replied, ". . . the various things that had gone on [described above ] plus this fact that he wasn't to go back to work, so he says, because he was going to get a big settlement .. . I figured I'd had enough." Bearing in mind that our primary focus is on why Respondent would not rehire Harry Switzer and that Hartmann gave the foregoing testimony both as the reason for the discharge and for the refusal to rehire, we now have seen the explication of Hartmann's statement that he did not rehire Switzer because he was a troublemaker, had a negative attitude, and was not interested in his work. Our first observation is that Harry Switzer's asserted "troublemaking" does not purport to be individual conduct of Harry or, for that matter, of Bill or Carl Switzer. It is a general indictment of the Switzers as troublemakers. Specifically, work stoppages were attributed to the Switzers. Later, in his testimony, when Hartmann was asked about the work stoppages that he had mentioned, he referred only to two. One was the 2-day work stoppage in July 1968 when the employees struck because Harry Switzer was discharged by Hartmann at the end of his first day on thejob following the back injury. The other incident occurred about October 30 or 31, 1969, when Respondent and other roofing contractors were picketed for a day or half a day by union members in protest that the companies were allegedly not securing employees from the Union as required by the contract. Both the foregoing incidents of picketing or work stoppage took place after Harry Switzer was discharged in July 1968. Since such incidents were part of the trouble- making that Hartmann attributed to Harry Switzer and his brothers and since Hartmann states that one of the reasons for not rehiring Harry was the fact that he was a troublemaker, we now have specific evidence as to the reasons for not rehiring Harry. Another matter, described above, which Hartmann mentioned in recounting the trouble with the Switzers, was the calls from credit and loan companies. When questioned further about this, Hartmann stated that he had not received such calls but his office girl had reported that she had received calls "concerning the Switzers." She did not specify which Switzer, and Hartmann admitted that he did not know whether, in fact, anyone had called regarding Harry Switzer. In describing calls from loan and credit companies, Hartmann stated that they asked such ques- tions as, "Do you have so-and-so working for you"; "How long"; "What is his classification"; "What's his basic wage?" Hartmann said there were similar calls regarding other employees but not as many as those regarding the Switzers. The Trial Examiner is not persuaded that the foregoing evidence as to credit company telephone calls regarding the Switzers was in fact a genuine reason why Respondent would not rehire Harry Switzer. zo See also the testimony of Bill Switzer, Hogle, and Carl Switzer, above, that bears on this aspect. HARTMANN CO., INC. Apparently, as another reason why Harry was a troublemaker, Hartmann testified that on one occasion when Harry was seeking to be rehired, Hartmann remarked to Foreman Robert Medley that Harry had been in asking for a job. Medley allegedly said that if Harry was hired, Hartmann would have to get a new gang of roofers, implying that the existing crew would quit. Medley, the foreman, was not called as a witness to corroborate this testimony.21 Hartmann also testified, apparently to further illustrate the trouble caused by Harry, that he had loaned the employee money. Although Hartmann was under no obligation to make a loan in the first place, the "trouble" entailed was that the bookkeeper routinely thereafter made deductions from the employee's pay in repayment of the loan. As a matter of fact, the only specific loan mentioned by Hartmann was the time around Christmas when he, of his own initiative, loaned Harry and his brothers $50 each. They had not requested the loans. Equally unconvincing are Hartmann's assertions that he did not like Harry's work and that Harry had a negative attitude toward his work. The testimony of supervisors and others is that Harry Switzer, Harry the Horse, was a good workman who did his share of the work and more. There was no criticism of his work by any supervisor and Hartmann admits that he had received no critical reports. Even Hartmann admitted that Harry was "a good worker" although he qualified the admission by saying that he was a good worker when he wanted to be. Respondent's attitude that the Switzers collectively were troublemakers has led us to examine the basis thereof.22 Bill Switzer was at one time a foreman for Respondent and he was not discharged but quit and thereafter he was rehired and continued to work well into 1969 after Harry's discharge in July 1968. The record reveals no troublemak- ing on his part except that Hartmann included him among the Switzers who were responsible for work stoppages such as the July 1968 and the October 1969 picketing. Carl, however, had been shop steward and as such had several rather heated clashes with Hartmann over seniority and other rights of certain employees. After one such encounter, in which Hartmann has said he would fire the whole bunch and get a new crew if he wanted to, the superintendent, Harold, spoke to Carl in private, and advised him to keep his mouth shut and let the employees take care of their own problems. Harry, of course, in Hartmann's eyes and according to Hartmann's testimony, was one of the Switzers and was equally guilty for such troublemaking as work stoppages, described above. Aside from the picketing 21 The Examiner heard two cases in Terre Haute on May 19-21, 1970 The instant case was heard and completed on May 19 The Respondent in the second case was Laughrey Bros Roofing & Siding Co, Inc. Case 25-CA-3562 In both cases the issue was alleged discriminatory refusal to hire Harry Switzer Both Respondents were parties to the same contract with the Union that had been negotiated by an association to which they belonged Respondents had different counsel Hartmann was a witness in both cases and was present at both hearings In the second hearing, Laughrey Bros, Robert Medley was a witness Among other matters, Medley testified that he never had any conversation with Hartmann about hiring Harry Switzer and had never said anything about what he or anyone else would do if Harry was hired 22 In addition to Hartmann's express testimony, previously described, Respondent's counsel stated at one point, "It is a family type problem with respect to why at least Mr Hartmann hasn't hired Mr. Harry Switzer " 23 Although we do not find it necessary to rely thereon, we note that in 417 and work stoppages after Harry's discharge, the evidence as to troublemaking is, as we have shown, of a very tenuous nature, with the exception of Carl's militancy when he was the steward. The latter type of conduct may well have been viewed as sufficient basis , from Respondent's standpoint, to view the Switzers as troublemakers, and as confirmed by the 1968 and 1969 picketing incidents to which Hartmann testified. The evidence regarding statements made by supervisors about the relationship between Harry Switzer's having filed a charge against the Company and the dismissal of the charge as at least one factor in the Respondent's refusal to rehire Harry Switzer is also not to be ignored.23 Whatever would have been our adjudication if the issue framed by the complaint had been the legality of Harry Switzer's discharge in July 1968, we are satisfied that the refusal to rehire him was materially due to what Respondent viewed as Harry Switzer and group Switzer "troublemaking," including Carl Switzer's "troublemaking" as steward, and the July 1968 work stoppage following Switzer's discharge, the October 1969 picketing, and the filing of the charge against Respondent by Harry Switzer, with the dismissal of the charge being viewed by Respondent as confirmation that Harry Switzer was an unjustified troublemaker whom Respondent would not hire.24 We are of the opinion that "troublemaking" of the foregoing nature is union or concerted activity protected by the Act and that the refusal to hire Harry Switzer, when such activities are material factors in the refusal to hire, constitutes a violation of Section 8(a)(3), (4), and (1) of the Act. CONCLUSIONS OF LAW Since September 21, 1969, Respondent has refused to employ Harry Switzer because Harry Switzer engaged in activities protected by the Act, including striking, picketing, and filing a charge with the Board , and because Respon- dent believed that Harry Switzer was one of the causes of such activities as strikes or work stoppages among Respondent's employees. Such refusal to hire constitutes a violation of Section 8(a)(1), (3), and (4) of the Act. THE REMEDY Having found that Respondent has violated the Act in the respects set forth above, it will be recommended that Respondent cease and desist from such conduct. In order to remedy the discrimination against Harry the Laughrey case, aforementioned, Hartmann , as a witness, testified that he considered Switzer a troublemaker and that one of the reasons was the trouble that Switzer caused him by filing the unfair labor practice charge 24 From March 23 to September 21, 1969, Respondent hired five roofers In early 1970, Respondent hired two roofers , Fred Conard and Don Payne. Of these seven men, two were apprentice roofers The record is clear that Harry Switzer as a journeyman roofer was superior as a workman to an apprentice . Respondent states that some of the roofers it hired were shingle men The evidence shows that although the bulk of Respondent's work was flat roof work on commercial buildings , it also performed shingle work, used principally on private homes, churches, and so forth Harry Switzer had performed both flat roof and shingle work for Respondent and without criticism We believe that the record demonstrates that Harry Switzer, a 28-year-old journeyman roofer, had shown that he was a qualified roofer, a journeyman, qualified to perform both types of roofing work 418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Switzer it is recommended that Respondent offer to hire Harry Switzer in any available employment that it may have for a journeyman roofer, displacing, if necessary, any journeyman roofer or apprentice roofer hired on or since September 21, 1969; and in the event the aforesaid employment is not available, place Harry Switzer on a preferential hiring list for the next available employment for a journeyman roofer and offer to employ him when such employment becomes available. It is further recom- mended that Respondent compensate and make whole Harry Switzer for the loss of wages incurred by Harry Switzer by reason of the discrimination against him. This is to be accomplished by paying the employee the wages he would have earned in Respondent's employ from Septem- ber 21, 1969, to the date of the offer of employment or to the date of placement on the preferential hiring list, aforedescribed, if employment is not immediately available. Any wages due Harry Switzer under the aforesaid computation shall be less any other intermediate earnings that the employee may have had elsewhere, figured on a quarterly basis, and with interest at 6 percent on the net amount found to be due, less any tax withholdings required by law.25 Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, the Trial Examiner issues the following: RECOMMENDED ORDER Hartmann Co., Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discriminating as to the hire of Harry Switzer or any other employee because he has engaged in union or concerted activities or in any activity protected by the Act. (b) In any other like or related manner interfering with employees in the exercise of rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action that will effectuate the policies of the Act: (a) Offer to employ Harry Switzer as a,journeyman roofer if such employment is available and displace, if necessary, any journeyman roofer or apprentice roofer hired on or since September 21, 1969; in the event employment is not available as aforedescribed, place Harry Switzer on a preferential hiring list for the next available employment for a journeyman roofer and offer to employ him when such employment becomes available. (b) Pay Harry Switzer any wages he may have lost by reason of its refusal to hire him from September 21, 1969, to the date of the offer of employment, or, if appropriate, to the date of placing him on a preferential hiring list, all according to the formula and method of computation more fully described in the Decision under the heading entitled "The Remedy." (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 to determine the amount of backpay due under this Recommended Order. (d) Post at its place of business in Terre Haute, Indiana, copies of the attached notice marked "Appendix." 26 Copies of said notice, on forms provided by the Regional Director for Region 25, after being signed by Respondent's representative official, shall be posted by Respondent immediately upon 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 other material. (e) Notify the Regional Director for Region 25, in writing, within 20 days from the date of receipt of this Decision, what steps Respondent has taken to comply herewith.27 25 Isis Plumbing & Heating Co, 138 NLRB 716 26 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations , and Recommended Order herein shall, as provided in Section 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes In the event that the Board's Order is enforced by a judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board " 21 In the event that this Recommended Order be adopted by the Board, this provision shall be modified to read . "Notify the Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government As the result of a trial, at which the Company and the General Counsel of the National Labor Relations Board were represented by their attorneys, and at which all parties introduced evidence, including testimony of witnesses under examination and cross-examination, and documen- tary evidence, the Board has issued a Decision and Order. Pursuant to that Decision and Order, we advise you that: WE WILL NOT discriminate as to hiring Harry Switzer or any other employee because he has engaged in umon or concerted activities or in any activity protected by the National Labor Relations Act. WE WILL offer to employ Harry Switzer as a journeyman roofer if such employment is available and, if necessary, we will displace any journeyman roofer or apprentice hired on or since September 21, 1969; in the event that employment is not available as aforedes- cnbed, we will place Harry Switzer on a preferential hiring list for the next available employment for a journeyman roofer in our employ and we will offer to employ him when such employment becomes available. WE WILL pay Harry Switzer any wages he may have lost by reason of our refusal to hire him from September 21, 1969, to the date of our offer of employment, or, if appropriate, to the date of our placing him on a preferential hiring list. HARTMANN CO., INC. 419 Dated By HARTMANN Co., INC This notice must remain posted for 60 consecutive days (Employer) from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with (Representative) (Title) its provisions, may be directed to the Board's Office, 614 ISTA Center, 150 West Market Street, Indianapolis, 921. This is an official notice and must not be defaced by Indiana 4204, Telephone 317-633-8 anyone.