Armstrong County Line Construction

National Labor Relations Board - Board Decisions

Jul 16, 1959

124 N.L.R.B. 132 (N.L.R.B. 1959)

132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. By discharging Robert Gibson the Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8(a)(4) of the Act.
3. By the foregoing conduct the respondent has interfered with, restrained, and
coerced employees in the rights guaranteed in Section 7 of the Act and thereby has
engaged in and is engaging in unfair labor practices within the meaning of Section
8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and 7 of the Act.
[Recommendations omitted from publication.]
Jud L . Sedwick, doing business as Armstrong County Line Con-
struction and International Hod Carriers ', Building and Com-
mon Laborers ' Union of America , Construction General Labor
& Material Handlers' Local Union No. 1058, AFL-CIO. Case
No. 6-CA-1J54. July 16, 1959
DECISION AND ORDER
On April 13, 1959, Trial Examiner Eugene F. Frey issued his Inter-
mediate Report 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 copy of the Interme-
diate Report attached hereto. He found further that the Respondent
had not engaged in certain other unfair labor practices alleged in the
complaint, and recommended dismissal of such allegations. There-
after, the General Counsel filed exceptions to the Intermediate Report,
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Rodgers, Jenkins, and
Fanning].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions and brief, and the entire record in the
case , and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.'
ORDER
Upon the entire record in the case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
i As no exceptions were filed to the Trial Examiner ' s findings that the Respondent vio-
lated Section 8(a)(1) by interrogating employees as to their union activity and threaten-
ing them with reprisals therefor , or to his findings that the Respondent did not violate
Section 8 ( a) (3) in discharging Dietrick , Myers, Toy , and the two Heplers, we adopt
such findings , pro forma.
124 NLRB No. 12.
ARMSTRONG COUNTY LINE CONSTRUCTION 133
Relations Board hereby orders that Jud L. Sedwick, doing business as
Armstrong County Line Construction, Kittanning, Pennsylvania, his
agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Interrogating employees as to their union activities, interests,
,or affiliations in a manner constituting interference, restraint, or
coercion in violation of Section 8 (a) (1) of the Act.
(b) Threatening employees with reprisals, including loss of em-
ployment, if they engage in union or other concerted activities.
(c) In any other manner interfering with, restraining, or coercing
employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist International Hod Carriers',
-Building and Common Laborers' Union of America, Construction
General Labor & Material Handlers' Local Union No. 1058, AFL-
,CIO, or any other labor organization, to bargain collectively through
-representatives of their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid
or protection, and to refrain from any or all of such activities, except
to the extent that such right may be affected by an agreement requir-
ing membership in a labor organization as a condition of employment
as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
(effectuate the policies of the Act :
(a) Post at his place of business in Kittanning Highlands, Kittan-
ning, Pennsylvania, copies of the notice attached to the Intermediate
Report marked "Appendix." 2 Copies of said notice, to be furnished
by the Regional Director for the Sixth Region, shall, after being duly
signed by Respondent's representative, be posted by the Respondent
immediately upon receipt thereof and maintained by him for 60 con-
secutive days thereafter in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said notices are not
altered, defaced, or covered by any material.
(b) Notify the Regional Director for the Sixth Region in writing,
within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint herein be dismissed
insofar as it alleges that Respondent has engaged in any unfair labor
practices in violation of Section 8(a) (3) of the Act, and insofar as
it alleges violations of Section 8 (a) (1) of the Act other than those
specifically found herein.
2 This notice shall be amended by substituting for the words "The Recommendations of
a Trial Examiner" the words "A Decision and Order." In the event that this Order is
enforced by a decree of a United States Court of Appeals, there shall be substituted for
the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order."
134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT
STATEMENT OF THE CASE
The issues in this case are whether Respondent Jud L. Sedwick , doing business as
Armstrong County Line Construction ( 1) terminated six employees I for economic
reasons, or discharged them for affiliation with and concerted activities on behalf of
International Hod Carriers ', Building and Common Laborers' Union of America, Con-
struction General Labor & Material Handlers ' Local Union No. 1058, AFL-CIO,
herein called the Union , in violation of Section 8(a) (3) of the National Labor Rela -
tions Act , as amended, 61 Stat. 136 , herein called the Act; and ( 2) interrogated em-
ployees about their union activities , threatened them with discharge therefor, and
promised and gave them wage increases to discourage union affiliation , in violation
of Section 8(a)(1) of the Act. The issues are raised by a complaint issued
November 3, 1958,2 by the General Counsel of the National Labor Relations Board,
and Respondent 's answer asserting the named employees were terminated as part of
a seasonal layoff, admitting the promise and grant of wage increases , but denying the
commission of any unfair labor practices.
On due notice a hearing was held before the Trial Examiner at Kittanning, Penn-
sylvania, on December 8, 9, and 10, 1958 , at which all parties were represented by
counsel , and were afforded full opportunity to be heard , to examine and cross-
examine - witnesses , to introduce evidence bearing on the issues , and to make oral
argument and file briefs . General Counsel and Respondent made oral arguments at
the close of the testimony , but none of the parties have filed briefs . Respondent's
motion in its answer , renewed at the close of the case, to dismiss the complaint is
disposed of by the findings and conclusions in this report.
Upon the entire record in the case, and from my observation of the witnesses on
the stand , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is in business as a sole proprietor , registered under Pennsylvania law
under the name and style of Armstrong County Line Construction , with his principal
office and place of business located at Kittanning Highlands , Kittanning , Pennsyl-
vania, where he is and has been engaged in the construction and maintenance of
telephone and power lines and clearance and maintenance of rights -of-way for public
utility companies in Pennsylvania and other States of the United States. In the 12-
month period prior to November 1958, Respondent rendered services outside Penn-
sylvania for which he was paid in excess of $50,000 , and received in excess of $50,000
for services rendered to public utility companies located in Pennsylvania , each of
which has a gross annual volume of business in excess of $250 ,000. I find that Re-
spondent is and has been engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of Section 2(5) of the Act
admitting to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES 3
A. Respondent 's supervisory setup and method of operation
Respondent 's services to public utility companies are performed by crews of men,
normally consisting of five or six men under the supervision of a foreman , known as
brush crews , line crews , and tree trimmers . A brush crew normally consists of un-
skilled laborers , who clear rights -of-way of brush and small growth. A line crew
consists of trained linemen who climb telephone or power poles to install, maintain,
and repair telephone or power lines, and groundmen who perform work on the ground
auxiliary to that of the linemen . Tree trimmers are highly skilled men who climb
high trees along rights -of-way or public streets to cut away branches adjacent to
1 The complaint herein named seven employees , but the Trial Examiner granted General
Counsel's motion at the outset to delete the name of Richard O 'Donnell.
a The complaint is based on various charges duly filed by the Union.
s Except where otherwise noted, the findings herein are based on uncontradicted or
mutually corroborative and credible testimony of witnesses of one or both parties, and
documentary or stipulated facts.
ARMSTRONG COUNTY LINE CONSTRUCTION 135
telephone or high tension power lines; each tree trimming crew has one or more
groundmen who gather up and dispose of fallen branches and watch for and control
traffic where necessary.
At the times mentioned herein, Ned R. Sedwick, brother of Respondent, was the
general supervisor of all Respondent's employees and crews, with authority to hire,
discharge, lay off, recall, discipline, and promote employees. He assigned employees
to crews, and crews to specific jobs, and exercised general supervision over their
work. Tom Wolf was foreman of a brush crew, and Burt W. Raymond and William
L. Heiman were foremen of line crews. These foremen reported directly to Ned
Sedwick, but had authority responsibly to direct their crews in their work, to hire men
directly on the job, to recommend pay raises which Respondent usually put into
effect, and to give crewmen days off for sickness and other reasons while on a job.
I find that Ned R. Sedwick, Wolf, Raymond, and Helman were supervisors within
the meaning of Section 2 (11) of the Act.
B. The union activity, and Respondent's reaction thereto
On January 10, 1957, the Union filed a petition in Case No. 6-RC-1896, seeking
certification as the bargaining representative of all hourly paid employees of Re-
spondent. On February 5, 1957, the Union filed charges in Case No. 6-CA-1115,
alleging Respondent violated Section 8(a)(1) and (3) of the Act. On August 7,
1957, Respondent executed an informal settlement agreement in the latter proceeding,
under which he offered one employee reinstatement and back pay, and posted a
cease-and-desist notice. On August 30, 1957, the Union requested the Board to
proceed with the representation case, and on October 27, 1957, a hearing was held in
that case, at which Respondent did not appear. The Board issued its Decision and
Direction of Election on December 5, 1957, ordering an election to be held within 30
days; this period was extended to 50 days by Board order issued January 3, 1958;
after the Union filed its initial charge herein on January 13, 1958, the Board on Janu-
ary 16, 1958, postponed the election indefinitely. The Union filed amended charges
herein on April 14 and August 12, 1958.
Shortly after November 19, 1957, the Union began an organization drive among
Respondent's employees, in the course of which employees Samuel O. Schrecengost
and Lloyd A. Myers were active during November and December in distributing union
authorization cards and soliciting employees to sign them. In this period, employees
Schrecengost, Myers, Merle E. Hepler, his brother, Calvin Hepler, Charles Dietrick,
and Richard O'Donnell signed union cards, and all of them except O'Donnell at-
tended most of the weekly union meetings held on Friday night in the union head-
quarters in Kittanning. As will appear hereafter, most of Schrecengost's solicitation
was carried on before work each morning in the automobile showroom of Highland
Motors, an automobile agency owned by Ned R. Sedwick and located in West
Kittanning, where Respondent's employees gathered daily, when not already out
working on a job, to receive new assignments to crews from Ned.
A few days after Dietrick was hired on November 19, 1957, he asked his foreman,
Thomas Wolf, outside the Highland Motors showroom one morning if this was a
union job. Wolf replied that it was not.. Dietrick showed Wolf his membership
card in a Baltimore, Maryland, local of the Union, and Wolf advised him "not to let
Ned Sedwick find out," saying that if Ned did, Dietrick "would be no better than the
other 47 men who had been fired for union activity" the year before. On an unidenti-
fied date in the latter part of November or early part of December 1957, while Wolf
and his crew (consisting of Dietrick, Myers, Ralph A. Toy, Merle Hepler, and O'Don-
nell) were eating lunch around a fire out on a job, the men were discussing the Union,
and Wolf asked some of them if they were members of the Union. Myers admitted
he had signed a union authorization card and had attended union meetings. Wolf
said, "You better not let Ned Sedwick hear you say that or you'll be in the same boat
as those 47 other guys who got fired last summer trying to join the union and organize
them." He also told them that if Ned found out they were discussing the Union,.
their checks "would be waiting for. them when they came in." On another occasion
about a week before Christmas 1957, when Wolf's crew was working near Adrian,
Pennsylvania, the men discussed the benefits of joining the Union, and Wolf said to
them, "Boys, Sedwicks won't stand for anybody that is thinking about the Union,"
and he again referred to the 47 employees terminated during the summer, and added
that, when Ned Sedwick had been passing out paychecks to the line of employees
including Wolf, he asked Wolf when he reached him, "Tom, do you belong to the
Union?" and when Wolf said no, Ned said, "Well, I have no check for you, then."
Wolf's remarks on these occasions clearly amounted to coercive warnings of possi-
ble discharge for continued union affiliation or activity, and his interrogation of
136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Myers in that context was likewise illegal. As Wolf was a supervisor whose conduct
is chargeable to Respondent under settled principles,4 I find that by his remarks
Respondent coerced employees in the exercise of rights guaranteed by Section 7 of
the Act, in violation of Section 8(a) (1) of the Act .5
One morning late in January 1958, while Foreman Burt W. Raymond was sitting
with his line crew (Schrecengost, Fred Miller, Thomas Gould, Sr., and Russell Stitt)
in a car behind a diner near Butler, Pennsylvania, Gould mentioned that the Union
had filed new charges against Respondent.6 Raymond asked what it was all about.
Schrecengost told him what the charge involved, and commented that Respondent
was trying to "buy a man for fifteen cents an hour, and I couldn't see that." 7 Ray-
mond said nothing to this, but asked what union, and what local, was behind the
charge. Schrecengost told him. Raymond then said the public utility companies
would not pay Sedwick the union scale, and that "it would be better if we had an
independent union." 8 Although Gould brought up the subject of the new charge, I
consider that Raymond's inquiry about its contents, and the identity of the union
filing it, while matters of public record, was a form of illegal interrogation designed
to elicit information from employees about their union interests or sympathies; and
in fact it had that effect, for it led Schrecengost to explain the charges, thus indicating
to Raymond his knowledge of and interest in the Union's activities on behalf of em-
ployees. His description of Respondent's grant of a 15-cent wage raise to him as a
form of bribe, which he resented, when considered in the context of the impending
Board election which had been originally scheduled for January, a fact which was
known both to management and Schrecengost, was a further indication of his pro-
union sympathies, elicited by Raymond's interrogation. However, Raymond's state-
ment that "it would be better if we had an independent union," though made in a
context of illegal interrogation, is an equivocal expression of opinion which, at most,
indicated the foreman's personal opinion about the desirability of an inside union
as against an outside labor organization; as he did not explain how the employees
would be better off with an inside union, his remark falls short of an express or even
implied warning or threat of reprisals if they supported the Union. Hence, I find
no violation of the Act in this remark.
On an unidentified date in December 1957, a crewman in Wolf's brush crew
mentioned the Union during a discussion among the crew on a job, and Wolf told
him in the presence of the others that "If you have anything to do with the Union,
you won't be around here very long." This remark was another threat of possible
discharge for union activity, and I find that Respondent thereby violated Section
8 (a) (1) of the Act.9
C. The wage raise of January 6, 1958
On January 6, 1958, Respondent gave wage raises to 38 hourly paid production
employees and 4 office employees. Before they actually received it on January 11,
1958, Ned Sedwick voluntarily told some of them that they would get it shortly.
* The record shows that after the union campaign started, Respondent discussed it
with his brother and received information about it from various foremen, and other
foremen besides Wolf discussed it with employees. However, there is no proof that
Respondent ever forbade foremen to discuss the subject with employees , or advised
employees that supervisors ' remarks on that subject were forbidden or not sanctioned
by Respondent.
s Wolf's reference to the 47 men is not otherwise explained in the record. He did not
testify in the case. However, his repeated reference to the ostensible discharge of a
large group of employees for union activity, whether true or false, was still calculated
to discourage union activity, and was thus coercive.
fi Obviously, he meant the original charge filed herein January 13, 1958, as distinguished
from those filed in Case No. 6-CA-1115.
7 Schrecengost received a 15-cent wage raise on January 6, 1958, as part of a general
wage raise which will be analyzed hereafter.
8 These findings are based on credited testimony of Schrecengost. Miller did not recall
the discussion, but did not deny its occurrence. Raymond denied the remarks attributed
to him by Schrecengost, while admitting many occasions when he and his crew sat in
cars at the location stated above. I do not credit his denial, for he admitted a strong
dislike of unions, and his denials of Schrecengost's testimony were not straightforward,
but rather evasive. Further, Respondent did not call Stitt or Gould, other members of
Raymond's crew, to explain the incident or support Raymond's denials.
9I make no finding of violation of the Act on the fact that employee Tom Gould, Sr.,
once told Schrecengost that Respondent would never pay the union scale , that "he'd have
to close down the business." When Gould said it, he was working as a groundman digging
ARMSTRONG COUNTY LINE CONSTRUCTION 137
There is no substantial proof that any employee asked for it on his own initiative.
General Counsel contends that the raises were promised and given to discourage
employees from joining or aiding the Union , in the face of the impending Board
election, and violated Section 8(a)(1) of the Act. Certain facts support this
contention. Respondent received notice on or about December 19, 1957, of the
Board 's original direction of election in the representation case, hence he knew
after that date that an election would probably be held on or before January 5,
1958. From earlier proceedings in that case, and his participation in the prior unfair
labor practice proceeding, Respondent already knew in 1957 that the Union was
active on behalf of his employees and seeking certification as their bargaining
representative. While Respondent and his brother in their testimony professed
ignorance of the Union's campaign of November and December, and of employees'
participation in it, the illegal interrogation and threats by their foremen in this
period, as found above, show that supervisors were aware of the union activity
almost from its outset. In addition, Respondent admitted that a foreman, Ralph
Lockhart, had told him, apparently sometime in 1957, that he had attended a union
meeting and signed up for the Union. Moreover, Schrecengost, the most active
union solicitor, solicited employees and distributed union cards to them almost daily
in November and December in the showroom of Highland Motors in West Kittan-
ning. On at least two occasions in that period, Schrecengost solicited employees
within earshot of Foreman Wolf and Ned Sedwick. On one of those occasions,
when Ned was standing too far away to hear what was said, -but Wolf was within.
earshot, Ned called Wolf into his private office for a 15-minute conference immedi-
ately after Schrecengost had ended his talk with other employees and had gone out
to work. The record does not show what they talked about, but in the absence of
any specific explanation of these incidents by Ned Sedwick or Wolf, and in the
light of Respondent 's antiunion animus and concurrent illegal conduct , it is a.
permissible inference that Ned Sedwick received a report from Wolf about
Schrecengost's activity and the persons whom he solicited.'0 From all these facts,.
I find that Respondent became aware of the Union's campaign shortly after it began,.
certainly in December, and took prompt coercive action designed to thwart it. The
general wage raise he promised and gave early in January was substantial, ranging
with some exceptions from 15 cents to 40 cents an hour, in contrast with raises of
much smaller amounts given to individual employees on specific occasions in the
past 2 or 3 years. The timing and scope of the general wage raise, in the light of'
Respondent's other contemporaneous unfair labor practices, presents a prima facie
case of discriminatory motive.
Respondent claims that the January raise was given for economic reasons which
had long been developing in his business. Respondent and his brother testified
that: For some time Respondent had been losing experienced employees to com-
petitors who were paying higher wages, and he and his brother had been discussing
the possibility of giving the employees, particularly the highly skilled tree trimmers,.
a raise in an effort to keep them. They decided that if Respondent succeeded in
getting a renewal of a yearly tree-trimming contract from West Penn Power
Company, he would give a raise to the trimming crews working on that contract.
In November 1957, Ned Sedwick told at least one such crew that if Respondent
got the renewal for 1958, they would get a raise. After Respondent procured the
contract, Ned told the same crew about it and indicated they would all get raises.11
In addition, Respondent decided he would have to give raises to other workers
"down the line," for if he raised the trimmers, his linemen would want transfers to
that work and might go to competitors otherwise, so he decided to extend the
raise to men in other jobs in order to bring the pay of other classifications more in
line with competitors' rates and thus keep his trained crews. Ned told the foremen
holes with Schrecengost, and although the record shows he was occasionally in charge of
men on one or two short jobs, I am not satisfied that when he made the statement he was
in fact a supervisor or held a position which would warrant employees believing that
he spoke for management.
Furthermore, the remark appears as susceptible of interpretation as a private ex-
pression of possible economic consequences if Respondent ' s business was unionized, as of
coercive implications.
10 Dietrick , the Hepler brothers, and Myers were in the group discussion on this
occasion.
11 Testimony of Ned Sedwick on these discussions is supported by credible testimony of
Bradley Buzzard, Bert B. Buzzard, and John L. Ward, all of whom were working on
that crew.
138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
.and some employees about this decision sometime before the actual wage raises,
and it became general knowledge among the employees . Accordingly , Ned reviewed
the work of each crew with its foreman sometime before January 1958 , and asked
for their recommendations as to the amount of raise to be given each man. Fore-
men of line crews were told that top linemen would be raised to $1.75 an hour, and
all others in the crew should be graded below that according to the foreman 's esti-
mate of their ability. The foremen 's recommendations were accepted by Respondent,
who gave the employees raises of varying amounts as recommended.
The testimony of Respondent and his brother on this point is uncontradicted. I
recognize that it comes from prejudiced witnesses , and is the type of proof that is
not readily refuted from sources outside the Employer . However, it withstood
the test of cross-examination , and does not appear inherently improbable, and I
must conclude that it affords substantial support for Respondent 's contention. To
offset it, General Counsel argues that the wage raise was abnormal and hence
inherently coercive, not only because of the large increases granted, but because it
was deliberately directed to all employees whom Respondent considered eligible to
vote in the election. These arguments are deprived of force by other facts. The
largest raises went to highly skilled tree trimmers, and to other employees of sub-
stantial or all-round experience . Thus , three tree trimmers in one crew (John L.
Ward, Erdice Gahagen , and Bradley Buzzard) received 35 cents each , and their
groundman , Bert B. Buzzard , received 20 cents. Respondent testified he decided
on these amounts because he did not want to lose these trained men . The validity
of this reason is also supported by the fact that the 1958 raise was the first the
two Buzzards and Ward had received in over 2 years of employment by Respondent
as tree trimmers , which contrasts sharply with the fact that Respondent had given
.a series of smaller raises to individual employees in the past 2 or 3 years, usually
when such employees asked for them, or finished training periods , or were promoted
to higher classifications of work.12 Bert B. Buzzard got less than tree trimmers,
obviously because he was in a less hazardous and less skilled job, clearing brush and
handling traffic as groundman for the tree trimmers . Seven linemen of long
experience or all-round ability received raises ranging from 25 to 40 cents.13 Other
linemen of lesser ability or experience received correspondingly smaller raises.14
Sixteen other employees , whose work classifications are not explained in the record,
received raises ranging from 5 to 35 cents , but in the absence of their work classifi-
cations, or specific explanation of their cases , it is inferable that they were in one
of the classifications named above , or brush crewmen , and received comparable
raises commensurate with their classifications , experience , and ability . It is clear
from these facts that Respondent gave these raises, not as a general wage raise
"across the board" to all employees , but, as Respondent testified , according to the
worth of each man to him . Furthermore , the raise did not go to all employees in
the appropriate unit , as furnished by Respondent to the Board: at least nine em-
ployees prima facie eligible to vote in an election were omitted.'S
I am of the opinion that the above facts and circumstances afford a direct and
substantial rebuttal of the prima facie case made by the General Counsel,ls and in
'a Schrecengost got five 5-cent raises prior to the 1958 raise . He asked for three, and
two of them came on transfers from brush work to spray work, and then to lineman.
Fred Miller , an experienced lineman of 7 years' service with Respondent , received a pay
raise of some amount nearly every year, and received three raises, totaling 80 cents an
hour , during 1957 . Elmer Henry , another lineman of comparable service, started work
at 75 cents an hour and received increases which brought him to $1 . 50 an hour which he
was getting just before the 1958 raise . William L . IIelman , who started with Respondent
as a groundman and worked his way up to foreman during 7 or 8 years' service , also got
periodic wage increases each time he was promoted to a higher classification . Respond-
ent has never had a policy of granting automatic raises based on length of service.
L3 John Ferraro, Russell Stitt , Fred Miller , Homer Miller , Elmer Henry , Raymond
George, and Sam Callender, a former foreman.
14 Schrecengost received only 15 cents ; for reasons stated below in discussion of his
termination , his foreman rated him much lower in ability and desirability than other
linemen . Robert Weaver received 10 cents. Harold Hopper , at times a groundman on
Raymond's crew , received only 5 cents : Raymond did not recommend him for a raise, and
rejected him as a crew member for a projected Ohio trip mentioned hereafter.
15 Thomas Gould , Sr., presently groundman on a line crew and at times a temporary
foreman , and Robert Morrow , at times temporary foreman but a crewman since before
November 30 , 1957 (see Dixie Wax Paper Company , 117 NLRB 548, 550) ; Paul Sanko, a
utility man who was Respondent ' s oldest employee; and six other employees ( aside from
four clericals ) not otherwise identified in the record.
'a E. B. Law and Son, 92 NLRB 826, 827.
ARMSTRONG COUNTY LINE CONSTRUCTION 139
the light of those facts, the circumstances supporting the prima facie case raise no
more than a strong suspicion that the January wage raise was given for coercive
reasons. I conclude that General Counsel has not sustained the ultimate burden of
proving on the entire record that it was motivated by illegal considerations. I shall
therefore recommend that the complaint be dismissed in this respect.
D. The terminations of Dietrick, Myers, Toy, and the two Heplers
Dietrick and Myers, brothers-in-law, and Toy were hired on November 19, 1957,
and Calvin and Merle Hepler were hired together on November 27, 1957. Ned
Sedwick hired the five to work in a temporary brush crew, under Foreman Thomas
Wolf, which Respondent put on at the request of West Penn Power Company to
perform some yearend right-of-way clearance work. When hiring Dietrick, Myers,
and Toy, Ned described the temporary nature of the job, indicating that it was good
only until December 31.17
Myers and Dietrick received union cards from Schrecengost at the Highland
Motors showroom late in November and signed them around November 27 or 28.
The Hepler brothers received cards from Schrecengost outside the showroom early
in December, and signed them around December 15. Toy got a card from Myers
.about December 15, but it disappeared,18 and he did not procure or sign another
until February 6, 1958, long after his termination. The five men, with Schrecengost,
were the most active union adherents, attending most of the weekly union meetings
and promoting affiliation with the Union in discussions at the showroom and in the
field. As found above, Toy, Myers, Dietrick, and one of the Heplers discussed the
Union in the presence of Foreman Wolf, and were interrogated by him about union
.affiliation. Dietrick had previously revealed to Wolf his union affiliation. Late in
November, Myers once discussed union benefits with the Hepler boys, Dietrick,
Schrecengost, and another employee, Atherton, in the showroom within earshot
of Wolf, and openly gave Atherton union cards to distribute among his crewmates.
In the same period, Myers also received a union card from Schrecengost and dis-
cussed the Union with him, within earshot of Ned Sedwick in the showroom. I find
,on the above facts and circumstances that Respondent was aware of the union
adherence and activity of these employees before their termination in January
1958.19
The temporary job on which these men were employed ended Tuesday, December
31, 1957. Myers and Dietrick went to the showroom for work on Thursday, Janu-
ary 2, 1958. Dietrick asked Ned Sedwick if there was any work for them. Ned
said he did not know yet. He assigned all other employees present to crews, sent
the crews out, and then told Myers and Dietrick there was no more work for them.
Ned also told Myers he was laid off temporarily until more work came in. When
Dietrick came in for his final pay on Friday, January 10, 1958, he asked Ned why
he was not working, while the Hepler boys were still employed.20 Ned told him
they were better workers,than he, that they had reported for work the day after they
had been told there was no more work for them, and Ned had used them to fill
vacancies 'on a crew which was short of men.21 Toy worked in the crew to about
17 As to the description of the job given these men, I credit testimony of Ned Sedwick,
and do not credit contrary testimony of Myers that he and Dietrick were told they would
have year-round work, for Dietrick contradicts Myers' story in this respect, testifying that
•he was not offered a permanent job, and that when he and Myers reported for work
January 2, 1958, the next workday after the end of the West Penn job, he asked Ned if
there was any work, a question he probably would not have asked if his work had not
ended on December 31 and he had year-round employment. Toy admitted that on his
last day of work before his termination, the. job his crew was working on was com-
pleted. Nor do I credit testimony of the 13epler boys that Respondent told them, on
hiring, that they had year-round work, for I find from credible and mutually corroborative
testimony of Respondent and his brother that, Respondent at this time was spending
most of his time on a new project in West Virginia, and left all the hiring for
Pennsylvania work to Ned.
11 Ile left it in the glove compartment of his truck one day while on a job, but found it
missing at noon. There is no proof indicating how or why it disappeared.
10I do not credit general testimony of Respondent, his brother, and Foreman Raymond
to the contrary.
20 The Ileplers worked through January 8, 1958, as appears below.
21I do not credit Dietrick's testimony that his final paycheck was ready and given to
him on January 4. Ned specifically denied this. Myers admits he did not hear the
conversation between Dietrick and Ned Sedwick, or see any check delivered, and his
140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mid-December , was absent the last 2 weeks of the job , and then reported at the
showroom for work Monday, January 6 , 1958, with another employee, Richard
O'Donnell . Ned Sedwick assigned all other employees present to jobs, then told
them that was all the work he had at the moment , and that as soon as work picked
up, he would call them back.
The Hepler brothers continued to work through January 7, 1958. When they
reported for work on Wednesday , January 8 , Ned dispatched all other employees to
jobs and then told them there was no more work for them, but that they were
"pretty good boys," and when work picked up, they would be the first ones recalled..
As they -were leaving he called them back, and asked if they would like to work an-.
other day . They accepted , and Ned assigned them to a crew on which two men had'.
failed to report . January 8 was their last day of work.
General Counsel contends Respondent discharged these five men, and failed to re -
call them, because of their known union activities . Respondent's prior unfair labor
practices which indicate his antiunion animus, his knowledge of their union adherence,
if not actual union affiliation , the facts that they were the main active union adherents.
(aside from Schrecengost ) and were concentrated in one crew , and that their
foreman was the only supervisor who directly threatened his crew with possible dis-
charge for union activity , and their termination shortly after they joined the Union,.
are circumstances which present a prima facie case of discriminatory motivation..
However, other facts militate against that conclusion.
First, the five accepted temporary employment , knowing it would end December'
31, 1957. There is nothing substantial in the record to refute Respondent 's claim
that their job was a temporary one. To the contrary, the record shows that Respond -
ent's entire business was seasonal in character , consisting mainly of numerous outside-
construction and maintenance jobs for public utilities , most of which require com-
pletion within a specified number of working days . Some of these jobs came to,
Respondent only after competitive bidding, and others arose from mere telephone
calls from utilities to perform certain work of several hours ', days', or weeks'
duration , so that Respondent was never assured of steady employment for his em-
ployees for any substantial length of time , much less year-round employment.
Hence, a short -term brush-clearing job of the type on which these men were em-
ployed was a normal experience in Respondent 's business , and the layoff of such
crews at completion of such jobs was likewise normal , and resulted in a large annual
turnover among his employees. The exception to this, and the only work of a
permanent nature handled by Respondent in 1957 and 1958 , were the 1-year
maintenance contracts with West Penn Power Company, which Respondent received
after competitive bidding , and which assured Respondent of year-round work for a
certain number of tree trimmers. However, this called for the labor of highly
skilled men, for which Wolf's new crew of brushmen was obviously not qualified.2Z
These facts furnish cogent refutation of the prima facie case of General Counsel.
Respondent admits that he never actually rehired any of these men, and the
record shows that he hired 42 new employees during 1958 . General Counsel points
to these facts as added proof that Respondent discriminatorily discharged , and failed
to recall, them . The failure to recall, however , is explained by other facts. All of
these men were new employees (except Toy), hired temporarily for brush clearing,
the least-skilled and lowest-paid job in Respondent 's business . They worked at it
less than 2 months before the layoff. Toy had worked for Respondent previously
for about 2 months in 1956 as a groundman in a line crew at $1 per hour, with
cleanup duties similar to the work of brush crew. Hence, none of them were trained
men with substantial experience in any of Respondent 's skilled work classifications.
A failure to recall casual , unskilled laborers who are known union adherents, even
in the face of a promise of recall, is less significant in assessing motives than would
.be the case with trained and valuable employees . Furthermore , the record contains
credible evidence that all of them except the Hepler brothers were less than satis-
factory in their short employment . Although Myers testified he heard no complaints
about his work, credible and uncontradicted testimony of John L . Ward indicates that
Myers did not properly carry out his duties of clearing and disposing of brush and
handling street traffic while acting as groundman one day for Ward while the latter
testimony that he came back on Friday a week later to pick up his final check supports
Ned Sedwick 's denial of the incident and his affirmative testimony that when men are
laid off they are "carried through" on the payroll , their final checks being made out for
them the next week, same as for men still on the payroll.
22 Only Toy had worked previously for Respondent as a groundman on a line crew at
$1 per hour , but there is no proof that such work qualified him for work on a tree-
trimming crew , where the groundman started at $1.30 per hour.
ARMSTRONG COUNTY LINE CONSTRUCTION 141
worked as tree trimmer with Wolf's brush crew, so that both Wolf and Ward had
to finish up Myers' cleanup work. Dietrick had a poor attendance record, failing
to report 2 days in his 4th week, and being absent for a full week in, December due
to illness. Toy's attendance record was also poor: he admitted he failed to report
a few days before Christmas due to illness , and Ned Sedwick testified credibly that
he was absent from work without notice for the last 2 weeks in December, reporting
for work only after the temporary job of Wolf's crew was completed 23 Since
Respondent testified that, for pay purposes, he evaluated employees on the basis
of their worth.to him, it is reasonable to assume that the same commonsense criterion
was applied in the recall of laid-off employees, and that experience and past per-
formance were factors in that evaluation.
That inference is strengthened by the different treatment which Respondent
accorded the Hepler brothers. They were given other work and kept on the
payroll through January 7, and when they reported for work on the 8th, Ned
Sedwick at first indicated they would be laid off for lack of work, but would be
recalled when work picked up, and then suited his action to his words, giving them
another day's work that morning when vacancies in another crew suddenly developed.
As he had promised to recall them, indicating they were "pretty good boys," his
prompt grant of another day's work is more indicative of a bona fide layoff than
of a discharge for discriminatory reasons. That he desired to retain them, work
permitting, as against other men on their old crew is indicated by his explanation to
Dietrick after their layoff that he kept them at work, instead of Dietrick, because
he considered them better workers. He continued of the same opinion, for in
February 1958, when he had a small brush job coming up, he tried twice to reach
the Heplers to offer them employment, by calling the telephone number of a neigh-
bor which they had put on their application forms at the time of hiring. On the first
call, he asked the neighbor to send word to them to report for work in the morning.
When they did not show up, he made a second call, and was advised by the neighbor
that the message had been delivered. They never reported for work. About a
month later, Ned saw both brothers and waved to them in greeting while he was
working with a crew near their home, but they did not approach him for a job,
nor did he offer them one, as he had nothing available at the time.24 Ned's
disparate treatment of the Heplers, as against Myers and Dietrick, in the matter of
retention at work and recall for further employment is a far more powerful indi-
cation of a bona fide economic layoff of the five than of a discriminatory discharge,
for it clearly indicates he was regarding them on the basis of merit, where they were
not on the same plane, and not on the basis of their union activity, where they were
on a par.
Toy testified without contradiction that he telephoned Respondent or his brother
several times after the layoff to ask for work, but was advised each time that
Respondent had nothing for him at the moment. Toy does not fix the dates of these
calls. Myers testified without contradiction that about mid-January, he met
Respondent or his brother in a nearby town and asked him for work, and was told
that there was no work as yet, and that Respondent did not know when more work
would come in. The bona fides of Respondent's reply in each case are supported
by the facts found below that he did no hiring in January, February, or March,
except for a few supervisors and some trained men for special jobs; and when work
picked up in April and thereafter, he recalled only experienced former employees,
hiring few new brushcutters. As found above, when he had brush work in February,
he tried to recall the Heplers to handle it, as he considered them good workmen.
Weighing all the pertinent evidence adduced on both sides, it appears that the
issue is close, but I am constrained to conclude that the proof supporting a finding
of a legitimate economic layoff of these men and failure to recall them for economic
and meritorious reasons is as cogent and persuasive as that supporting the claim of
discrimination. I therefore conclude that General Counsel has not sustained the
ultimate burden of proof of a discriminatory layoff and failure to recall as to them,
and I shall recommend a dismissal of the complaint in that respect.
211 do not -credit Toy's testimony that 'he worked with the crew through January 4,
1958, in the face of contrary testimony of Myers, Dietrick, and Ned Sedwick indicating
that their jab ended December 31, 1957.
24 Both brothers admitted filing the neighbor's telephone number with Respondent, but
denied they received any recall message. I do not credit their denials, for General
Counsel did not call the neighbor to support them or refute Ned's story, and Calvin
admitted that he never sought work from Respondent even after he learned that Respond-
ent was hiring new men.
142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. The termination of Samuel O. Schrecengost
Schrecengost was hired by Respondent in July 1956. He started on a brush crew
at $1.10 an hour, then drove a truck with a spraying crew for some months, and
was transferred back to a brush crew. Early in 1957 Respondent put him on a line
crew as a trainee under Foreman William L. Helman, and he remained with that
crew until December, when he was transferred to another line crew under Foreman
Raymond, where he remained until his termination on February 7, 1958.
Schrecengost signed a union card on January 28, 1957, and when the union cam-
paign started in November, he was one of the most active union solicitors. As found
above, Respondent was aware from the outset of the campaign of his activities.
therein.
During January 1958, Raymond's crew was working on a line repair job for
People's Telephone Company. In the last week of January, Ned Sedwick learned
from the utility that work on this job would have to be curtailed, requiring the layoff
of the last crew put on it, which was that of Raymond. Ned Sedwick told Raymond
his crew would work through February 7, and that the only work left for them was
a tree-trimming job in Ohio which Raymond had started for Respondent with another
crew the past summer and which was unfinished. Members of Raymond's crew
learned of the impending termination of the job during the next week, and in talking.
about it, several commented that they would "end up in Ohio cutting brush." On
Friday, February 7, 1958, Ned Sedwick went to the work site of Raymond's crew,
told Raymond the job was "buttoned up," and ordered him to take all equipment
back to Kittanning. While helping crew members gather up equipment, Ned told
Schrecengost that this was "his last day here, unless you go to Ohio," and that the
whole crew was going there. Ned told Raymond to take the crew out to the Ohio
job. At Raymond's suggestion, Ned asked each crew member if he would go to
Ohio. Russell Stitt agreed to do so, but all the others except Schrecengost refused,.
claiming the job was too far from home. Schrecengost did not give Ned a definite
answer, saying he would have to discuss it with his wife first. Ned then told Ray-
mond to report at Butler, Pennsylvania, Monday morning, and that Ned would have
a crew ready to go with him. Raymond asked if his crew was going just as it was,.
and Ned said, no, that some of his men did not want to go. Raymond said he needed
"4 good men." Ned suggested Fred Miller, and Raymond accepted him. Ned
asked, "How about Sam?" and Raymond said, "No, not Sam, I won't take Sam
Schrecengost with me." Ned suggested Robert Weaver, but Raymond was non-
committal on him. Ned finally told Raymond that he would have a crew ready for
him Monday.
Schrecengost and his wife discussed the Ohio offer and decided he could afford
to go if he received expenses besides wages while in Ohio. Schrecengost asked Ned
at the showroom Saturday morning if he would get expense money. Ned said no.
Schrecengost refused to go, saying he could not afford to go on his present wages.
Ned then replied, "Well, that's it," that he had no other work for Schrecengost at
that time.
Respondent did not send a crew to Ohio on Monday because a heavy snowfall
in the Kittanning area that weekend made it impossible for a crew to travel, and
even prevented Raymond from reporting for work until Wednesday or Thursday of
that week. He worked at Kittanning 2 days that week, then became ill the weekend
of February 8-9 and was absent from work almost 2 months. As Respondent had
no other foreman who knew the Ohio job or its location, he never sent a crew to
finish it, and at the time of the hearing it still remained a backlog item of work.
A prima facie case of discriminatory termination of Schrecengost can be based
on his prominence in the union campaign, Respondent's knowledge of such activity,
and his termination after Respondent's foreman had uttered warnings to employees
of possible discharge for such activities. Discrimination can likewise be inferred
from Respondent's failure to recall him, while recalling other linemen and hiring
new ones in 1958. However, in one aspect the prima facie case is not as strong
as that disclosed in the layoff of Wolf's crew: there is no proof that Foreman
Raymond, a plain-spoken individual who was clearly antiunion but, if anything,
preferred an "inside" hbor organization, ever threatened his whole crew or even
Schrecengost, with possible discharge for union activity, as Foreman Wolf did in
his crew.
Respondent contends Schrecengost was laid off when the job on which he was
employed ended, because he refused to accept other work in Ohio. The fact that
the whole crew, except Stitt and the foreman, were laid off at the same time for the
same reason, is a cogent circumstance which alone casts much doubt on the claim of
discriminatory discharge, especially in the absence of claim or proof that Respondent
ARMSTRONG COUNTY LINE CONSTRUCTION 143
transferred Schrecengost to Raymond's crew with knowledge that its work would
terminate soon, or that termination of the Peoples' Telephone job was engineered to
get rid of Schrecengost, or that the Ohio job was fictitious or, if real, offered to
Schrecengost in hopes that he would reject it. On the last alternative the record
shows that Schrecengost had previously rejected an offer of Respondent to work
outside the State with expenses paid, and it might be inferable that, with knowledge
of that attitude, Respondent offered the Ohio job, hoping that he would refuse it,
and thus furnish the pretext for his layoff. But this inference falls in the face of the
facts that the whole crew, except Stitt, refused to go, and were laid off with
Schrecengost, and this included Miller, who had also previously indicated his desire
not to work out of State 25 I am satisfied that the circumstances of the layoff found
above constitute direct and substantial evidence refuting the inferential case of dis-
criminatory discharge adduced by General Counsel, and that Respondent has thereby
met the burden of going forward with proof adequate to rebut that case. In the light
of these facts, I am of the opinion that the record discloses at best a strong suspicion
that Schrecengost was laid off because of his union activities, but since suspicion does
not constitute proof, I must conclude that General Counsel has not met the ultimate
burden of proving that his layoff had a discriminatory motivation. I therefore find
that the record does not disclose a violation of the Act in Respondent's layoff of
Schrecengost on February 7, 1958.
With regard to the failure to recall Schrecengost, I find from credible testimony of
Schrecengost and admissions of Ned Sedwick that twice in the 2 weeks following
his layoff, Schrecengost asked Ned Sedwick for a job, but Ned did not recall him,
giving as reasons that (1) he could not afford to train men and then have them refuse
to work out of State, and (2) he had no lineman's job open at the time within the
State. The second reason has ample support in the record. I have found that
Respondent's business was seasonal, consisting mainly of numerous short-term jobs
of types requiring services of brushmen and linemen, which resulted in a constant
and substantial turnover of personnel. Respondent's records show that up to the
hearing in 1958,.he had issued 130 W-2 forms for Federal income tax purposes to
employees, as against 276 in 1957, and 513 in 1956. The steady downtrend in this
respect is one indication that his work force was not as great in 1958 as in prior
years. He also testified that in dollar volume his business was below that of prior
years, which he attributed in large part to his lack of success in procurement of
jobs by competitive bidding, although he had bid more jobs than in prior years; he
did work for 16 different companies in 1957, but only 12 in 1958 up to the hearing.
The record also shows his business hit a low period early in 1958. Schrecengost ad-
mitted that in January and February 1958, Respondent was sending out fewer men
on jobs than previously. This is corroborated by Respondent's records which show
that the number of Pennsylvania-employed men on his payroll was decreasing in
this period, that he did no new hiring in January, except for a special tree-trimming
crew of seven men,26 and he hired only two men, one for a day and the other for 2
days, in February. In March he hired one foreman, and another foreman hired two
other men as groundsmen. Thus, in the 3 months no new linemen were hired. In
January and February, other men were laid off nearly every week, besides those in-
volved in this case.27
Respondent's second reason is questionable, for Miller, of the same crew and an
inactive union member, also refused to work out of State and was laid off, yet was
recalled by Respondent about 5 weeks later and has worked ever since as a lineman.
Furthermore, Respondent's records show that, starting in April, he hired at least five
new, permanent employees as brushcutters or linemen for work in Pennsylvania, as
well as recalling at least six other employees, besides Miller, laid off in the first 2
months of the year.28 These recalls and new hirings also throw doubt on the validity
2Miller had also joined the Union long before Schrecengost, but was inactive in the
1957 campaign.
20 On or about January 11, 1958, Respondent took on a crew of six linemen under
Foreman Frank Gaydosek, which he "inherited" at the request of a public utility when
he took over a right-of-way maintenance job on which another contractor had used that
crew in the previous year.
21 In the week ending January 11, Foreman Wolf and three other men were laid off
besides the FIepler brothers ; in the next week, three men were laid off ; in the week of
February 8. one man besides Raymond's crew was laid off ; and in the week of February 22,
one was laid off.
28The permanent employees hired were : Wesley Ward, April 5, as brushcutter ; Mike
Wannett, June 28, as brushcutter ; Lloyd Rubright, May 10, as lineman ; Harry Kroft,
144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Respondent 's reasons for not recalling Schrecengost after March, especially since
he had accumulated experience in all the basic types of work done by Respondent,
except tree trimming , had been a lineman for over a year, and was given some wage
raises during his employment.
Respondent 's answer is that Schrecengost was not recalled because he had not
proven to be a satisfactory employee, despite long training and various incentives to
improve his work , and his value was further limited by his refusal to work on jobs
out of State , of which Respondent had a substantial number. Aside from the refusal
to work out of State, which is a weak argument , there is merit in Respondent's con-
tention. After working on brush and spraying crews, Schrecengost was trained on a
line crew. After he had been training for some months , Ned Sedwick got reports
from Foreman Heiman that Schrecengost did not get along well . with other men on
his crew, that they did not like to work with him because he griped a lot about the
work, tried to shift the tough , more disagreeable jobs to other crewmen , was slow
at his work , and did some of it incorrectly so that Helman had to assign other em-
ployees to correct it . When Ned Sedwick began to get these complaints in the sum-
mer of 1957 , he talked to Schrecengost about his work and attitude at least three
times, once for about 11/2 hours , in an attempt to help him correct his attitude at
work, and when this produced no noticeable improvement , Helman suggested to Ned
that Schrecengost might work out better on another crew. As a result Ned trans-
ferred Schrecengost to Raymond 's line crew in December 1957. After observing
Schrecengost's work for 1 day, Raymond, who had about 30 years of experience in
line construction , mentioned Schrecengost 's work to Ned , asking him where he got
"that factory reject." While on Raymond's crew, Schrecengost's work was not up to
standard , for on several occasions another lineman working with him had to do his
work over again, after he installed telephone wires improperly . Raymond rejected
Schrecengost as a crew member for the Ohio job, because he felt that Schrecengost
could do a lineman 's work only "partially," and he needed "good men" on the Ohio
job. These findings are based on credible and mutually corroborative testimony of
Helman, Raymond, Ned Sedwick, and Elmer Henry. Schrecengost did not take the
stand on rebuttal to deny their testimony regarding his work; the best he could say
on that subject was that the foremen and Ned Sedwick "mostly said I was doing
pretty good ." Helman admitted that , while training under him , Schrecengost im-
proved "a little bit," but that he had the ability to do better work. Although Ray-
mond, who appeared to be a harsh critic , was very doubtful of Schrecengost 's ability
from the first , he kept him on his crew as a regular member, and even admitted that
he told Schrecengost he was doing better . However, he also testified that he still
had to assign other men to help Schrecengost finish a job which he should have
completed without aid. I am satisfied from all the testimony on this point that,
while he improved somewhat during his training , Schrecengost never became a
fully competent lineman whose performance and ability to work in a team was on
a par with other linemen . This explains why he received only a 15-cent raise in
January 1958 , as compared to 25-cent raises given linemen Fred Miller and Stitt
of the same crew, and Henry of Helman 's crew, and the 30-cent raise given linemen
Homer Miller, for the record shows that Respondent fixed the amount of the raise
for each man on his foreman's judgment of his ability . In assessing Schrecengost's
performance , I attach no significance to the fact that Respondent gave him several
small raises in the past , for I found from testimony of Schrecengost , Respondent,
and Ned Sedwick above that three were given at his own request, two came with
transfers to better jobs, and credible testimony of Respondent and Ned Sedwick
indicates that all were given as part of Respondent 's continuing program to straighten
him out, as Ned felt that Schrecengost had the makings of a good lineman ; and the
15-cent raise was also part of that program.
The recall of lineman Fred Miller in March , as against Schrecengost , is adequately
explained by the fact that he had much more experience than Schrecengost, was
considered a better workman by Raymond , and on that basis received a larger raise
in January than Schrecengost . Hence, Respondent 's disparate treatment of them
does not weaken Respondent 's defense or substantially support an inference of dis-
crimination . The first of these considerations applies also in the recall of Clifford
Butterbaugh who had originally been hired by Respondent as a tree trimmer and
hence had experience in a highly skilled classification.
The record shows that later hirings of permanent employees in 1958 were
sporadic , and for the most part to take care of specific jobs as they arose. Respond-
August 2, as lineman ; and James Adams, November 1, as brushcutter . Employees re-
called after their January layoff were: Thomas Gould, Jr., Ralph Neefe Wagner, Clifford
Butterbaugh , Melvin Hopper , Harold Hopper , and Emory Hopper.
ARMSTRONG COUNTY LINE CONSTRUCTION 145
ent and his brother testified credibly that all of the linemen hired , with the exception
of Wesley Ward, were experienced men. Twenty -four of the hirings were men
picked up quickly and apparently at random for temporary crews assembled to do
short jobs on short notice for utility companies ; when a job was completed, the
whole crew was usually laid off, and not recalled, except when Respondent dis-
covered a man who showed promise and was retained for further training ; the 1958
hiring list shows only six instances of this type . 29 Omitting 6 men hired for work in
West Virginia ,30 2 foremen, 1 general mechanic, the special 7-man Gaydosek crew,
and the 24 other short -term hirings found above, Respondent had a net gain of
only I or 2 permanent employees during 1958. However , of the West Virginia
crew, three men and the foreman, all men of long experience , were transferred to
work as permanent employees in Pennsylvania when the West Virginia job was
completed , as they were willing to travel out of State . In both aspects , they were
obviously far more valuable to Respondent than Schrecengost , hence their retention
rather than his recall cannot be considered substantial evidence of discrimination
against him. The same is true of the hirings of the foremen and the general
mechanic, for which jobs he was not qualified . As to the remaining 24 short-term
hirings, the failure to recall Schrecengost for any of those jobs appears justifiable
in the light of his past unsatisfactory performance , particularly his inability to work
as a team with other men , which was essential in most of Respondent 's work.
After careful consideration of all pertinent evidence pro and con , I am con-
strained to conclude that Respondent has sustained the burden of going forward with
substantial evidence adequate to rebut the prima facie case of discriminatory dis-
charge and failure to recall Schrecengost , and that on all the pertinent evidence
General Counsel has failed to sustain the ultimate burden of proving a violation of
the Act in this regard . I shall therefore recommend that the complaint be dismissed
as to those allegations.
- IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
-The activities of Respondent , set forth in section III, above , occurring in connec-
tion with the operations of Respondent described in section I, above , have a close,
intimate , and substantial relation to trade, traffic , and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing commerce and
the free flow thereof.
V. THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices, I
shall recommend that he cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, and on the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce and the Union is a labor organization, all
within the meaning of the Act.
2. By interfering with, restraining , and coercing employees in the exercise of
rights guaranteed by Section 7 of the Act , to the extent found above , Respondent has
engaged in and is engaging in unfair labor practices within the meaning of Section
8(a)( I) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and ( 7) of the Act.
4. By his promise and grant of wage increases in January 1958, and by his termi-
nation of the employment of Charles Dietrick, Lloyd A. Myers, Ralph A. Toy,
Calvin Hepler, and Merle E. Hepler in January 1958 , and of Samuel O. Schrecengost
on February 7, 1958, and his failure to recall each of them thereafter , Respondent
has not violated the Act as alleged in paragraphs 5(c), 6, 7, and 8 of the complaint.
[Recommendations omitted from publication.]
29 Wesley Ward is an example : he was hired April 5, 1958, as a groundman on a line
crew , and then began to train as a lineman during the summer of 1958, which Indicates
that Respondent considered him promising material for regular line work.
.30 They need not be considered , because Schrecengost would not take out-of-State work,
and employees working in Nest Virginia were not included in the appropriate unit de-
scribed in the Union ' s petition in the representation case.
525543--60-vol. 124--11
146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the Labor Management
Relations Act, I hereby notify my employees that:
I WILL NOT interrogate my employees as to their union activities , interests,
or affiliations , in a manner constituting interference , restraint , or coercion in
violation of Section 8(a) (1) of the Act.
I WILL NOT threaten my employees with reprisals, including loss of employ-
ment , if they engage in union or other concerted activities.
I WILL NOT in any other manner interfere with, restrain , or coerce my
employees in the exercise of the right to self-organization , to form labor
organizations , to join or assist International Hod Carriers', Building and
Common Laborers' Union of America, Construction General Labor & Material
Handlers' Local Union No. 1058, AFL-CIO, or any other labor organization,
to bargain collectively through representatives of their own choosing, and to
engage in other concerted activities for the purpose of collective bargaining or
other mutual aid or protection , and to refrain from any or all of such activities,
except to the extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment as authorized
in Section 8(a) (3) of the Act.
IUD L. SEDWICK, DOING BUSINESS AS ARMSTRONG
COUNTY LINE CONSTRUCTION,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced , or covered by any other material.
American Freightways Co., Inc. and Office Employees Inter-
national Union, Local 153, AFL-CIO. Case No. ?-CA-5745.
July 16, 1959
DECISION AND ORDER
On February 13, 1959, Trial Examiner Sydney S. Asher, Jr., issued
his Intermediate Report in the above-entitled proceeding, finding
that the Respondent had not engaged in the unfair labor practices
alleged in the complaint and recommending that the complaint be
dismissed in its entirety, as set forth in the copy of the Intermediate
Report attached hereto. Thereafter, the General Counsel filed excep-
tions to the Intermediate Report and a supporting brief ; the Re-
spondent filed a brief in support of the Intermediate Report.
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions, the briefs, and the entire record in
the case, and finds merit in certain of the General Counsel's exceptions.
Accordingly, the Board adopts the findings, conclusions, and recom-
mendations of the Trial Examiner with the modifications set forth
below.
124 NLRB No. 1.