Hartmann Co., Inc.

National Labor Relations Board - Board Decisions

Dec 23, 1970

187 N.L.R.B. 412 (N.L.R.B. 1970)

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