Laughrey Bros. Roofing & Siding Co., Inc.

534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Laughrey Bros. Roofing & Siding Co., Inc., and Harry A. Switzer. Case 25-CA-3562 December 30, 1970 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On August 12, 1970, Trial Examiner Ramey Donovan issued his Decision in the above-entitled proceeding, 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 attached Trial Examiner's Decision. The Trial Exam- iner further found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint, and recommended that those allegations be dismissed. Thereafter, the General Counsel filed limited exceptions to the Trial Examin- er's Decision and a supporting brief. 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 and brief, and the entire record in the case, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommend- ed Order of the Trial Examiner and hereby orders that the Respondent, Laughrey Bros. Roofing & Siding Co., Inc., Terre Haute, Indiana, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order.2 IT IS FURTHER ORDERED that those portions of the complaint as to which no violations have been found are hereby dismissed. 1 We hereby correct the following inadvertent errors in the Trial Examiner's Decision which in no way affect our adoption thereof In the first paragraph the correct year is 1970, not 1969; In the 15th paragraph under section II the year is corrected to read 1969 2 In footnote 22 of the Trial Examiner's Decision substitute "20" for "10" days TRIAL EXAMINER' S DECISION STATEMENT OF THE CASE RAMEY DONOVAN, Trial Examiner: This case was tried in Terre Haute, Indiana, on May 20 and 21, 1970. The charge had been filed on November 4, 1969, by Harry A. Switzer, an individual, against Laughrey Bros. Roofing & Siding Co., Inc., herein the Company or Respondent. The complaint issued by the General Counsel of the Board was dated April 30, 1969, and alleged a discriminatory refusal to hire Switzer because of activities of his protected by the Act, all in violation of Section 8(a)(1)(3) and (4) of the Act. Respondent's answer denies the commerce jurisdictional allegations of the complaint and denies the commission of the alleged unfair labor practices. Pursuant to prior notice, the General Counsel, at the inception of the hearing, amended the jurisdictional allegations of the complaint. Respondent moved for dismissal of the complaint for lack of jurisdiction. Upon the entire record and from observation of the witnesses, the Trial Examiner makes the following: FINDINGS AND CONCLUSIONS I. JURISDICTION Respondent is an Indiana corporation with its principal office and place of business in Terre Haute, Indiana, where it is engaged in business as a roofing, siding, and home improvements contractor. In the past year Respondent has purchased goods and materials directly from suppliers outside Indiana of a value in excess of $20,000 and such goods and materials were shipped to Respondent from outside the State of Indiana. Hartmann Co., Inc., is also an Indiana corporation with its principal office and place of business in Terre Haute, Indiana, where it is engaged in business as a roofing and sheet metal contractor. In the last 12 months Hartmann has purchased and received at its place of business goods and materials valued in excess of $50,000 directly from States other than Indiana. Hartmann is an employer engaged in commerce within the meaning of the Act.' There are five roofing contractors in Terre Haute, Indiana, who, since at least 1952, have, jointly and collectively, as the Terre Haute Roofing Contractors Association, negotiated annually or every 3 years, contracts between the Association and United Slate, Tile and Composition Roofers, Damp and Waterproof Workers Association, Local No. 150, a labor organization.2 Typically, the most recent contract for the period May 1, 1968, to April 30, 1971, was between the Terre Haute Roofing Contractors Association and the Union. The signatory page set forth the names of the Association and the Union as the parties to the contract and apparently I In Hartmann Co, Inc, Case 25-CA-3639, heard by this Trial Examiner on May 19, 1970, a decision has issued in which it was also found that Hartmann was an employer engaged in commerce within the meaning of the Act. 2 The contractors aforementioned were Hartmann Co., Inc, Respon- dent Laughrey Bros ; Lough Bros Roofing & Siding Co, Inc , Paitson Roofing Co., Inc ; and Guarantee Roofing Co , Inc 187 NLRB No. 70 LAUGHREY BROS. ROOFING & SIDING CO. 535 each member of the Association signed under the following heading: Terre Haute Roofing Contractors Association is, therefore, appropriate to consider the total business of members of the Association? We find that Respondent is an employer engaged in commerce within the meaning of the Act, both statutorily and also within the standards of the Board's discretionary jurisdiction. We deny Respon- dent's motion to dismiss for lack of jurisdiction. 11. THE ALLEGED UNFAIR LABOR PRACTICES By First Party United Slate, Tile and Composition Roofers, Damp and Waterproof Association, Local No. 150 By Second Party Robert T. Laughrey, known as "Ted," is vice president of Respondent and is the son of Robert W. Laughrey, president. Robert T. testified that every 3 years the Terre Haute contractors, aforedescribed, get together and jointly bargain a contract with the Union. The participants in the joint negotiations are the union representatives on the one side and the contractors committee on the other side. The latter committee is composed of the president or represent- ative of each contractor, with John Hartmann, president of the Hartmann Company, as the spokesman. Hartmann is the largest contractor in Terre Haute in terms of number of employees and Robert T. Laughrey stated that "John [Hartmann] is the oldest roofing contractor in Terre Haute, and probably the State of Indiana, and more or less we leave it up to him to run the Committee." Laughrey testified that the Association has no officers or meetings or address and its sole function is to negotiate a periodic contract with the Union. There has been no instance of an individual contractor withdrawing from the contract negotiations, and the contract negotiated between the Association and the Union is the contract applicable to all members of the Association. In our opinion, the existence of a multiemployer bargaining unit is clear. The instant multiemployer unit functions under the name Terre Haute Roofing Contrac- tors Association, and the formality or informality of this Association is immaterial on the issue.3 In deciding the jurisdictional question in such a multiemployer situation, it 3 The John J Corbett Press, Inc, 163 NLRB 154, 155, 157, and cases cited therein 4 we shall adhere to our past practice of considering all members by multiemployer bargaining negotiations as single employers for jurisdictional purposes" Siemons Mailing Service, 122 NLRB 81, 84, Carpenter & Skaer, Inc 90 NLRB 417, 419 1 Jackewicz has been employed by Hartmann for 9 years He is a In 1958, Harry Switzer, a member of the Union, began working in the roofing industry in Terre Haute for the Paitson Company. After about 4 years in the United States Marine Corps, Switzer returned to roofing in Terre Haute in 1964. From early in 1965 to February 1968, he was employed as a roofer by the Hartmann Company in Terre Haute. Switzer was a journeyman roofer. This was the basic job classification in the union and the trade. The other rank-and-file classification was that of apprentice-trainee and apprentice. Roofing work can be divided into what is called buildup or flat roof work, sometimes referred to as hot work, and shingle or sloped or angled roof work. Commercial and industrial buildings usually have flat roofs and the roofing, simply stated, consists of layers of building paper applied with hot tar or asphalt coating. Private homes, some churches, and other structures usually have sloping roofs and shingles of various types are applied to such roofs. The record indicates that roofing contractors perform both types of roofing work but some may normally perform a high percentage of flat roof work while others have a high percentage of shingle jobs. Journeyman roofers may have become experienced in one or the other type of work and may thus become more proficient at either buildup or shingle work. Some journeymen have had experience in both types of work but with more experience and expertise in one type. Apparently a relatively small number can be regarded as specialists in both types of work. Switzer had performed both buildup and shingle work. There is no evidence that his work was unsatisfactory in either category. In fact, the evidence indicates that he was an all-around roofer but that he had spent a higher proportion of his working experience in buildup rather than in shingle work. In February 1968, while employed by Hartmann, Switzer sustained a back injury. After securing a medical release, Switzer returned to work for Hartmann in July 1968, sometime before the middle of the month. At the end of Switzer's first day at work in July 1968, John Hartmann, owner of the Company, discharged Switzer. Both Robert Medley, Switzer's foreman at the time, and Jackewicz, business agent of the Union, told Switzer at the time that, in effect, they did not consider Hartmann's action justified .5 A strike of I or 2 days' duration was engaged in by employees of Hartmann against their employer when Switzer was discharged as aforementioned. Switzer filed a charge against Hartmann with the National Labor foreman For 15 years, and up until about 2 weeks before the instant hearing, Jackewicz has also been the business agent of the Union in Terre Haute He thus had the dual role of foreman for Hartmann and business agent of the Union Robert T Laughrey, vice president of Respondent and son of the president, Robert W Laughrey, had worked in the roofing trade for about 10 years and had been president of the Union Local from 1959 to 1961 536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Relations Board in October 1968, alleging that his discharge was illegal. This charge was dismissed by the Regional Director of the Board on November 29, 1969. The instant charge against Respondent was filed on November 4, 1969.8 Switzer testified that, between October 1968 and November 1969, he applied for work about a dozen times at Respondent's office. On such occasions he states that he either spoke to the woman in the office or a man. He would ask if they were doing any hiring and would be told, no. Sometimes, Switzer states, his name, address, and telephone number were taken down on A piece of paper by the woman or the man but on other occasions nothing was written down. Switzer never had any contact with Robert W. or Robert T. Laughrey during this period although Robert W. does the actual hinng at Respondent's. Although there apparently is another woman in Respon- dent's office, the evidence indicates that the two people who have contact with job applicants who come to the office are Mrs. Kops, the bookkeeper, and Maxwell, who functions generally like an office manager although he has no specific title. Kops has less contact with applicants than Maxwell and she generally enters into the picture only in Maxwell's absence. The entire procedure involving job applicants coming to Respondent's office is quite informal and does not follow any precise format. There are no punted job application forms and, if a man walks in and asks if the Company is doing any hiring, Kops or Maxwell will answer affirmatively or negatively, depending on what they know. Sometimes they will write the applicant' s name, address, and telephone number on a piece of paper and sometimes not. These pieces of paper appear to have no prescribed destiny since as far as appears they are not filed and no index of applicants appears to be maintained. Maxwell will usually ask an applicant what type of work he wants and something about his experience. If Maxwell knows the Company is looking for help with a particular skill or experience and such an applicant comes in, Maxwell will probably arrange for the man to be interviewed by President Laughrey who does the actual hiring. From all the evidence, including Switzer's testimony, the Trial Examiner believes that if Switzer had been to Respondent's office about a dozen times between October 1968 and November 1969, as Switzer states, the man and the woman to whom he spoke on such occasions, either one or both at different times, was Kops or Maxwell. On these occasions, according to Switzer, he would ask if there was a job opening or whether they were hiring and was told, no. Kops testified that the only time she saw Switzer at Respondent's office was October 28, 1969. Maxwell also states that this was the only occasion when he spoke to Switzer. During the course of the hearing, Switzer stated that the woman to whom he spoke on his numerous visits was Kops and he identified a man sitting in the spectators' section of the courtroom as the man to whom he spoke at Respondent's office. This particular man then stood up and gave his name and place of employment. He had no connection with the roofing industry or with Respondent. 6 Another charge against Hartman , filed January 20, 1970, alleged illegal refusal to hire That matter was litigated in a hearing held in Terre Haute on May 19, 1970, Case 25-CA-3639 His name was Cohn and he was obviously a random spectator who chanced to be in the courtroom. Switzer then retracted his identification, saying he had only seen a man in Laughrey's office "twice" The latter apparently by way of explanation as to why Switzer had made the misidentification.7 Although it may be that Switzer had gone to Respondent's office on numerous occasions before October 28, 1969, the Trial Examiner is not prepared to find this to be the fact. Switzer also testified that from October 1968 to November 1969, he had, in effect, applied for employment with all the roofing contractors under contract with the Union in Terre Haute. This would of course include Respondent. The foregoing type of application, as de- scribed by Switzer, was by reason of the fact that Jackewicz, the union business agent, knew that Switzer was out of work and Switzer had sought employment through Jackewicz as the business agent of the Union. According to Switzer, Jackewicz had said at a union meeting that he had sought to secure employment for Switzer but was unsuccessful and that he could not secure employment for Switzer in Terre Haute but could secure work for him in Evansville or in Indianapolis. The contract between the Association and the Union provides that the former "recognizes the Union as the proper source from which to obtain workmen, whenever available." It is further provided that whenever, after reasonable notice, the Union "is unable to furnish a sufficient number of duly qualified workmen ..." the contractor may hire from other sources, subject to the requirement that employees hired from other sources shall apply for union membership within 7 days and remain in good standing in the Union. Ordinarily, under the foregoing type of contract provision, we would expect that Respondent, if it needed employees, would first resort to the Union, and the union business agent, knowing that Switzer was seeking work, would refer him to Respondent. The record reveals that in 1968 Respondent hired only one roofer and that was on September 16. In 1969 and 1970 the following picture is shown: Date Employed Date Terminated Parsons 2/25/69 3/5/69 Needham 3/4/69 5/7/69 Howard 4/14/69 5/29/69 R. Richey 4/21/69 Davidson 6/23/69 6/23/69 Lents 6/24/69 6/25/69 McDowell 9/5/69 4/22/70 Williamson 10/28/69 12/24/69 J. Richey 3/11/70 4/30/70 Airhart 3/13/70 3/18/70 The evidence regarding the foregoing employees and the 7 At another point in his testimony Switzer stated that he had talked to the man in Laughrey's office about seven or eight times and on each occasion the man had written down his name and address LAUGHREY BROS . ROOFING & SIDING CO. 537 circumstances of their hire is limited. Such information as we have before us on this aspect was elicited from Robert W. and Robert T. Laughrey.8 Robert T. Laughrey testified that he knew nothing about Parsons or Needham or how they were hired. He knew R. Richey and said that he was still employed. He could not recall Davidson and did not know McDowell. Laughrey stated that Williamson came in and applied for ajob and was not hired through the Union. This was also true of J. Richey and Airhart who had worked for Respondent on a prior occasion. Robert W. Laughrey testified that Lents had contacted him directly and was not hired through the Union. Lents was hired as an apprentice. Robert W. had no recollection of Howard. Robert W. stated that McDowell was a young man who had worked for the Company about 5 years and, when he got married, Laughrey hired him as an apprentice. Laughrey also said that Davidson, who worked only I day, had been hired as an apprentice. There is no evidence that shortly prior to or at the time any of the foregoing employees were hired, the Respondent had notified the Union that it had an opening for an employee or that Respondent had requested the Union to refer any applicant to Respondent. Nor is there any evidence that any of the employees hired in 1968-1970 had been referred to Respondent by the Union. From the testimony of the Laughreys, as well as the testimony of Kops and Maxwell, it appears that in the course of a year many job applicants came to Respondent's office. They would ask if Respondent was hiring and depending on the circumstances of whether or not Respondent needed an employee, and the qualifications of the applicant, he might be hired or not. As far as appears no applicant was ever asked if he had been referred by the Union to Respondent and, if a man was hired, he was hired by Respondent directly without reference to the Union.9 The one instance that the record reveals of Respondent asking the union business agent if he had a couple of good roofers available will be considered at a later point. Our purpose in considering Respondent's hiring practice was due to Switzer's testimony that Jackewicz, the union business agent, was aware that Switzer was out of work and was seeking employment. Since under the terms of the contract, Respondent would be expected to call upon the Union in the first instance if it had an opening for an employee, the fact that Respondent hired a substantial number of employees directly in 1969-1970 might indicate that it was deliberately passing over Switzer. But this reasoning depends upon whether in fact Respondent customarily went to the Union in the first instance when it had a job opening (which was the procedure set forth in the contract) If Respondent customarily and initially had gone to the Union, Respondent presumably would have been aware of Switzer's status as ajob applicant and its failure to 8 President Robert W Laughrey was the person who had the final word on hiring employees 9 It may be that after a man was hired he was obliged to join the Union as required by the contract If this were so, it might have been satisfactory to the Union since its dues income from persons employed would be protected Whether out of work union members viewed the matter in the same light is another question 10 The picketing on October 30 on the hiring of employees was not initiated by the Union and there is no evidence that the Union or its hire him, and its hiring of other persons directly, might well indicate discrimination. However, it is our opinion that the evidence indicates that Respondent customarily did its own hiring without securing applicants from the Union. As far as appears, Respondent did not initiate such a practice when Switzer was out of work but had been operating in that manner for some time. While the practice may have adversely affected Switzer's chances of securing a job, the evidence does not show that the practice was instituted to discriminate against Switzer. Moreover, other union members were affected by the fact that Respondent, and apparently other contractors that were parties to the contract, were hiring employees directly and not hiring through the Union. Six union men picketed contractors in Terre Haute, including Respondent, because the contractors were not contacting the Union for employees. This was not a situation confined to Harry Switzer Two of the men who picketed, union members Noel and Harris, testified that they were unable to secure roofing work in Terre Haute but were obliged to work out of town and they did not think it right that the contractors were hiring others and not hiring through the Union.io We do not, therefore, view the fact that Respondent was hiring employees "off the street" in the period up to October 28, 1969, and not resorting to the Union in the first instance as a source of employees, as evidence of illegal discrimination against Switzer or that the practice was instituted to avoid hiring Switzer. Switzer and others were apparently the victims of a situation where the Union and the Association members, the parties to the contract, were operating, at least as to hiring, in a manner difficult to reconcile with the provisions of the contract. But the matter of contract interpretation and enforcement is not before us. Our interest is the matter of evidence bearing upon alleged discrimination against Harry Switzer by refusing to hire him because of his activities protected by the Act. At this point we simply determine that in view of the fact that, quite apart from Switzer, the parties to the contract apparently did not take the hiring provisions of the contract too seriously, the evidence that Respondent directly hired employees up to October 28, 1969, without first contacting the Union to see if there were any out-of-work roofers known to the Union, does not establish discrimination against Switzer because of his protected activities. And, by the same token, the fact that Switzer had let the union business agent know that he was out of work and looking for a job, was not an effective application for employment to Respondent, for the simple reason that, for some time and customarily, Respondent was hiring employees directly and not through contacting the union business agent. We also regard as dubious that the business agent ever went to Respondent and said, in effect, that Switzer is available for work and if you need a roofer, let me know and I will send business agent ever protested that Respondent or any other contractor, by hiring employees without first applying to the Union, was not complying with the provisions of the contract One of the contractors that was picketed by the individual union members on October 30 was Hartmann The union business agent, Jackewicz, said he would cross the picket line and we assume that this was because he either did not wish to give a union imprimatur to the picketing or because he was a foreman employed by Hartmann or both 538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Switzer. The fact that the business agent reported to Switzer and to a union meeting that he could not get a job for Switzer in Terre Haute does not establish that the foregoing direct contact was made with Respondent. Perhaps what the business agent reported was the fact but it may have been based on factors known to the business agent but not spelled out by tangible evidence in this record. I' This bungs us to the events of October 28, 1968. From the record we are satisfied that October 28 is the correct date.12 On that date, according to Jackewicz, the business agent of the Union and foreman employed by Hartmann, he and another Hoffmann employee, Conard,13 were putting a roof on a housing development which was a Hartmann contract job. Laughrey (Robert T.) and Kennedy, de- scribed as Laughrey's sales manager, came up on the roof and Laughrey said to Jackewicz that he would like to have a couple of journeymen roofers. Looking over at Conrad, who was working at the time, Laughrey observed that he would like to have a couple like "him." Jackewicz said he had two men out of work, Harry and Carl Switzer.14 According to Jackewicz, Laughrey said, "they can't lay shingles, can they?" and Jackewicz replied that they worked at shingle laying but he did not know how good they were. This was the end of the conversation. Laughrey's version is, in effect, that he made no reference to shingles because at the time of the conversation he was bidding on a job in Brazil, Indiana, that would entail the use of buildup men rather than shingle men. He simply asked Jackewicz if he had any good roofers and Jackewicz may have mentioned that the Switzers were available. The Trial Examiner believes that there was no reference to shinglemen in the conversation and that Jackewicz did mention the availability of the Switzers. We note that Jackewicz, in an affidavit given in February 1969, states that Laughrey was looking for buildup men at the time because Laughrey thought he might secure a contract that would entail buildup work. Jackewicz also states therein that he told Laughrey of the availability of the Switzers and that they were good roofers. Within a short time after the foregoing brief and indeterminative conversation, Harry and Carl Switzer came by the housing project where Jackewicz was working. They asked the latter what contractor had contacted him for men most recently. Jackewicz said that it was Ted Laughrey and that Ted had just left and that they could go down to the Laughrey office. The Switzers thereupon drove to Respondent's office where they spoke to Kops, who referred them to Maxwell. In substance, the Switzers said that they had heard that the Respondent was hiring men. Maxwell said that he was not aware that the Company was hiring but he asked the ii Jackewicz, in an affidavit that is in evidence, referred to an occasion on October 28, 1969, described hereinafter, when Laughrey asked him if he had a couple of journeymen roofers available Jackewicz stated, "that was the only time I referred the Switzers [Harry and Carl ] to Laughrey during the past year and a half " i2 Among other factors, we note that in his handwritten charge , filed on November 4, 1969, a few days after the event, Switzer describes the events as occurring "on Tuesday, October 28." 13 Incorrectly spelled Conner in the record 14 Carl Switzer was a brother of Harry. He, like Harry , had worked for Hartmann until 1968, when he quit, not long after Harry's discharge in July 1968 . During his employment with Hartmann Carl had been the union Switzers about their work. The gist of the reply was that Carl was a buildup roofer and that Harry did both buildup and shingle work. Maxwell took down their names and addresses on a piece of paper. Neither Switzer was thereafter contacted or hired by Respondent. Robert T. Laughrey testified that the Brazil job and some others that he had bid on or that he thought he might secure, had never materialized and Respondent had not been awarded the contracts. However, a compilation prepared by Kops from Respondent's records shows, under "Date Employed" and "Date Terminated" that an individual named Williamson has the date "10/28/69" under "Date Employed." 15 Robert W. Laughrey testified that he had hired Williamson on October 27 and that his first day at work was October 28. Robert T. Laughrey appeared to know little about Williamson but he said that his, Laughrey's, father, Robert W., had interviewed and hired Williamson on October 27, before Robert T. spoke to Jackewicz. The Trial Examiner believes that the evidence indicates that Williamson was interviewed and hired on October 27 and that "Date Employed" is the date he actually went to work on the payroll. We do not find that Williamson was hired on October 28 after Respondent had been informed by Jackewicz that Harry Switzer and his brother were available for work. It also appears from Robert T. Laughrey's testimony, which was not controverted on the point, that Respondent did not secure the contract for the Brazil job and some other jobs that Robert T. had had in mind when he had spoken to Jackewicz on October 28. On October 30 or 31, 1969, six union roofing employees picketed the various roofing contractors in the Terre Haute area who were under contract with the Union. The picketing lasted about half a day. The six employees were Harry and Carl Switzer, Paul Switzer, Foster, Noel, and Harris. In testifying, Harry Switzer stated that the six pickets had been out of work as long as he had been and they were protesting the contractors' failure to call upon the Union for employees as required by the contract. The two pickets at Respondent's place of business were Noel and Harris. When Richard T. Laughrey came to the office and shop and saw the two pickets in front, he asked them what it was about. Noel testified credibly that he told Laughrey that "we" were picketing because "we wasn't getting hired in Terre Haute and we had to go out of town to get work." Laughrey replied that he suspected that the Switzers were behind "the whole damn deal." Noel replied that "it was all of us doing it." Laughrey said that Carl and Harry Switzer were looking for work and that "he wouldn't hire neither one of the sons-of-bitches because they're troublemakers." Harris testified to substantially the same effect. steward at one period and in the course of his stewardship be had had several clashes with Hartmann over seniority and other conditions of employment of employees. Neither brother had ever worked for Laughrey. During the period when Robert R Laughrey was president of the Union he states that he had received no complaints about Harry Switzer. Laughrey testified that he had met Carl but when this occurred or under what circumstances, we are not told. Laughrey also stated that, prior to October 28, 1969, he had "heard of the Switzer brothers" (there was also another brother, Bill, who, like his brothers, was a journeyman roofer in the Terre Haute area). 15 Date terminated was 12/24/69 LAUGHREY BROS. ROOFING & SIDING CO. 539 Robert T. Laughrey testified that he had become excited and irritated when he saw the pickets in front of Respondent's premises. Although Respondent's roofers had already gone to work, Laughrey states that the picketing delayed Respondent's carpenters going to work.16 Laughrey also states that in his conversation with the pickets the Switzers' name came up and he did say that he would not hire the sons-of-bitches (the Switzers) because they were troublemakers. On October 30, Laughrey states that Respondent had no openings for anyone in the roofing trade. In explaining the aforementioned castigation of the Switzers, Laughrey testified that it was due to his excitment because of the presence of the pickets and that he had heard that the Switzers were troublemakers. Although he had heard of the Switzers previously in a general way it was not until the day of the picketing that he learned that Carl and Harry had actually applied for work at Respondent's place of business.' 7 As mentioned, Laughrey states that when he had been president of the local union, he had received no complaints about the Switzers. Later, apparently, over a period of time, Laughrey states that he had received information that the Switzers were troublemakers. This information was not in terms of Harry specifically or any individual Switzer. A roofer named Payne, who worked for Respondent for about 14 years and who was a member of the Union, according to Laughrey, was one of the persons who had told him that the Switzers were troublemakers. Laughrey was unable to say when Payne gave him this information. Bob Richey, a roofer and foreman, who had commenced working for Respondent in April 1969, also, states Laughrey, gave him the same report about the Switzers being troublemakers. Some other employee also told the same thing to Laughrey but he was unable to remember the name. Laughrey states that he did know that Hartmann had discharged Harry Switzer in 1968 but that he was unaware of any NLRB charge filed by Switzer against Hartmann until sometime after Switzer had filed his November 1969, charge against Respondent. Laughrey also states that he had no conversation with Hartmann about the Switzers or about Harry's charge against Hartmann. Robert W. Laughrey also asserts that he had no conversations with Hartmann and states that the first he knew about the Switzers having applied for work at Respondent's office was on the day of the picketing, October 30, 1969. In an affidavit given on December 22, 1969, Robert T. Laughrey stated that he had heard that the Switzers were troublemak- ers from Payne and Richey, aforementioned, and also from other employees and "even other contractors, such as Hartmann, Lough Bros., Paitson and Guarantee but I cannot recall specifically who said what or what specifically was said about them." On balance, the Trial Examiner believes that in addition to what employees told him about 16 In addition to roofing, Respondent performed siding work and evidently used carpenters in such work 17 Evidently a reference to the October 28 application to Maxwell 18 Inter a/Ia, Hartmann testified in the instant case as to why he considered Harry and the other Switzers to be troublemakers Part of this was Hartmann's belief that the Switzers had been responsible for work stoppages at Hartmann 's and also the fact that Harry Switzer had filed a charge against Hartmann that had been dismissed for lack of merit Carl the Switzers, some contractors, at one time or another, probably told Laughrey that the Switzers were troublemak- ers. As far as appears there was no specific explanation of the term. According to Robert T. Laughrey, what he understood by the term "troublemaker," as applied to the Switzers and as told to him by others, was that the Switzers caused "dissension on the job." Without further development in the record of what Laughrey conceived as causing dissension on the job, we are unable to conclude that to Laughrey such activity included past Switzer activities protected by the Act. Depending upon the facts, causing dissension on the job could embrace activities protected by the Act, for instance, calling fellow employees attention to an employer's failure to provide necessary safety equipment and bringing about a work stoppage thereby. This might be characterized by some as causing dissension on the job. On the other hand, causing dissension on the job or troublemaking is not always or necessarily protected activity. It depends on the actual facts developed. On the instant record, we do not find that what Laughrey had in mind regarding the Switzers ' alleged troublemaking and dissension had been shown to be, by substantial evidence, past protected activity by Harry or Carl Switzer when dealing with other contractors nor, in our opinion, does the record warrant our imputing to Respondent the motivation that may have existed on Hartmann's part in dealing with Harry or the other Switzers.18 There remains for consideration, however, the actual event of October 30, namely the picketing. This peaceful picketing by unemployed roofers, who believed that the contractors were violating the union contract with respect to hiring, was protected activity, within the meaning of Section 7 of the Act. The evidence, earlier described, manifests that Robert T. Laughrey believed that the Switzers were responsible for the picketing and he expressed his clear irritation and hostility toward the situation. Credible testimony of Noel and Harris establish- es that Laughrey said that he would not hire the "sons-of- bitches," the Switzers, because they were troublemakers. While we have found the evidence to be insufficient to include in the term, "troublemakers," as used by Laughrey, past protected activities of the Switzers involving Hart- mann and the Switzers, Laughrey, in our opinion, was clearly referring to the October 30 picketing as troublemak- ing for which he deemed the Switzers responsible. This picketing we regard as protected activity. An expression of opinion about the picketing or the Switzers is one thing. However, Laughrey made a strong statement, with convincing finality, that he would not hire the Switzers because they were trouble-makers. This was not limited to October 30, when Respondent had no opening for roofers, but was a general interdiction of employment of the Switzers by Respondent. The trouble- Switzer as union shop steward at Hartmann had some clashes with Hartmann in the discharge of his steward's duties. Hartmann also testified that when he told one of his foremen , Medley, that Harry Switzer had applied for a job at Hartmann's, Medley said that Hartmann would have to get a new crew of roofers if Switzer was hired, and thereby implying that if Switzer was hired the other men would quit . Medley testified credibly that he had made no such statement and had never discussed the hiring of Harry Switzer with Hartmann 540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD making of the Switzers that was indicated was, or included, the picketing. We regard the foregoing statement of Laughrey as a threat, a statement of position or policy against hiring Harry Switzer or his brother in the future. Since Harry Switzer and his brother were journeymen roofers, members of the Union having a contract with the Roofing Contractors' Association of which Laughrey was a member and contracting participant, their normal future employment expectation would be with the aforesaid roofing contractors. Laughrey closed this door with respect to any possibility of employment of the Switzers by Respondent. We regard such an expressed threat, position, and policy as inconsistent with the provisions of Section 8(a)(1) of the Act and we find a violation of that section to have been committed. Other than as found, above, we do not find that Respondent has discriminatorily failed and refused to hire Harry Switzer. With respect to Respondent's hiring of Airhart on March 13, 1970 (terminated March 18, 1970); and J. Richey on March 11, 1970 (terminated April 30, 1970), the evidence indicates that their hiring was accomplished in the same manner and for the same type of considerations that had characterized Respondent's hiring over a long period. Despite the contract, Respondent hired employees directly, and prior resort to the Union, as on October 28, 1969, when a substantial contract was being anticipated, was apparent- ly the exception. Respondent hired Airhart and J. Richey directly. They had both formerly worked for Respondent. Robert T. Laughrey's uncontroverted testimony is that Richey was a shingleman and that Airhart was both a shingleman and a buildup man.19 Under the manner in which parties to the contract were evidently administering the contract, the direct hiring of Airhart and Richey, who had the factors aforementioned attributable to them, was not exceptional. Nor do we regard this hiring as constitut- ing discrimination against Harry Switzer. For reasons previously stated, Switzer's being on record with the Union as an out-of-work roofer, was not an effective application with Respondent at the time it hired Airhart and Richey. Nor was Respondent's awareness on October 30, 1969, that Switzer had applied for employment, sufficient to consti- tute an effective application in March 1970, when Respondent hired Afrhart and Richey. The reasons for these conclusions are, as indicated, the manner in which the contract was administered and the manner in which Respondent hired. Neither of these factors first came into being with respect to Switzer nor did they have their inception because of a desire to discriminate against Switzer. There is no evidence that Respondent maintained a file of applicants. If a qualified roofer applied to Respondent on a given day and if Respondent needed a roofer at the time, and certainly if the applicant had worked 19 Richey's brother had been one of Respondent's roofers since April 1969 20 Regarding qualifications to work as a roofer, the record shows that the Union had the classifications of journeyman roofer and apprentice In practice, in the trade and industry, some journeymen had their major work experience and skill in flat roof work and they were referred to as buildup men. Other journeymen had their major experience and skill on steep roofs where shingles were used and they were referred to as shinglemen or shingle specialists Some men were skilled and experienced in both types of previously for Respondent in a satisfactory manner, the applicant would in all liklihood get the job. Perhaps if such an applicant had walked in 3 days or a week before there was an opening, Respondent might contact him a week later if an opening occurred. But, there is no evidence of a systematic reference file of prior applicants and, such evidence as there is, shows a nonsystematic writing down of a name and telephone number of applicants on a piece of paper whose ultimate disposition was uncertain and transitory.20 We have concluded, therefore, that aside from the October 30, 1969, discriminatory threat not to hire Harry Switzer, Respondent has not been shown, by substantial evidence, to have discriminatorily refused to hire Switzer at a time when there was a job opening for a person of Switzer's qualifications and at a time when Switzer was effectively making application for employment to Respon- dent. Insofar as the complaint alleges actual discriminatory refusal to hire Switzer at certain times, we recommend dismissal of those complaint allegations of violations of Section 8(a)(3) and (4) of the Act. CONCLUSIONS OF LAW Respondent, when its place of business was picketed, an activity for which it held Harry Switzer and his brother responsible, stated and threatened that Respondent would not hire Harry Switzer or his brother because they were troublemakers, the latter term including the then picketing, as activity protected by Section 7 of the Act. By such statement and threat, Respondent violated Section 8(a)(l) of the Act. Respondent has not otherwise violated the Act as alleged in the complaint under Section 8(axl), (3), and (4) of the Act. THE REMEDY Having found that Respondent has violated the Act, it will be recommended that it cease and desist from such conduct. More specifically, it is recommended that Respondent abandon its stated position and threat and not refuse to hire Harry Switzer upon a timely and viable application for employment in any job as a journeyman roofer that Respondent may have, or is about to have, unfilled and open, and which job the said Switzer is qualified to perform satisfactorily according to reasonable judgment standards. RECOMMENDED ORDER It is recommended that Respondent, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Stating and threatening that it will not hire Harry Switzer, one of the "Switzers" referred to by Respondent in work Harry Switzer had performed both buildup and shingle work without criticism by his supervisors on the jobs His major experience had been with the Hartmann Company and which performed both types of work but the greater part of its work was buildup. Switzer, therefore, had performed more buildup work than shingle work While not a shingle specialist, Switzer could perform shingle work satisfactorily Respondent's contracts were predominantly in the shingles field, about 95 percent , although it did perform some buildup work LAUGHREY BROS . ROOFING & SIDING CO. making such statement and threat, because Harry Switzer had engaged in, and was believed by Respondent to be responsible for, activity protected by Section 7 of the Act. (b) In any like or related manner threatening or interfering with employees in the exercise of their rights as guaranteed under Section 7 of the Act. 2. Take the following affirmative action necessary and appropriate to effectuate the policies of the Act: (a) In the event that Harry Switzer makes a timely and viable application for employment as ajourneyman roofer with Respondent and Respondent has, or is about to have, an unfilled and open job for such a journeyman roofer, which job the said Harry Switzer is qualified to perform satisfactorily according to reasonable judgment standards, Respondent shall offer to employ Harry Switzer in the aforementioned job. (b) Post at its place of business in Terre Haute, Indiana, copies of the attached notice marked "Appendix." 21 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 ensure that said notices are not altered, defaced, or covered by other material. (c) Notify the Regional Director, Region 25, in writing, within 20 days from the date of receipt of this Decision, what steps Respondent has taken to comply herewith.22 21 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 ajudgment 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." 22 In the event this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith." 541 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial in which our Company was represented by its attorney and the General Counsel of the National Labor Relations Board was represented by his attorney, the Trial Examiner, who heard the evidence, including the examina- tion and cross-examination of witnesses, has found that we have violated the National Labor Relations Act in certain respects and that in other respects we have not violated the said Act. The Trial Examiner has recommended that we take the following remedial action because of violations found to have been committed: WE WILL NOT state and threaten that we will not hire Harry Switzer because he is a troublemaker by reason of his engaging in and being responsible for activity protected by Section 7 of the National Labor Relations Act. WE WILL offer to employ Harry Switzer as a journeyman roofer in the event he makes a timely and viable application for employment as a journeyman roofer at such time as we have, or, are about to have, an unfilled and open job for a journeyman roofer, which job Harry Switzer is qualified to perform satisfactorily according to reasonable judgment standards. WE WILL NOT in any like or related manner threaten or interfere with employees in the exercise of their rights guaranteed under Section 7 of the National Labor Relations Act. LAUGHREY BROS. ROOFING & SIDING CO., INC. (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compliance with its provisions, may be directed to the Board's Office, 614 ISTA Center, 150 West Market Street, Indianapolis, Indiana 46204, Telephone 317-633-8921.