Laughrey Bros. Roofing & Siding Co., Inc.

National Labor Relations Board - Board Decisions

Dec 30, 1970

187 N.L.R.B. 534 (N.L.R.B. 1970)

534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Laughrey Bros. Roofing & Siding Co., Inc., and Harry
A. Switzer. Case 25-CA-3562
December 30, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On August 12, 1970, Trial Examiner Ramey
Donovan issued his Decision in the above-entitled
proceeding, finding that the Respondent had engaged
in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. The Trial Exam-
iner further found that the Respondent had not
engaged in certain other unfair labor practices alleged
in the complaint, and recommended that those
allegations be dismissed. Thereafter, the General
Counsel filed limited exceptions to the Trial Examin-
er's Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in the case, and hereby adopts the
findings,' conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recommend-
ed Order of the Trial Examiner and hereby orders that
the Respondent, Laughrey Bros. Roofing & Siding
Co., Inc., Terre Haute, Indiana, its officers, agents,
successors, and assigns, shall take the action set forth
in the Trial Examiner's Recommended Order.2
IT IS FURTHER ORDERED that those portions of the
complaint as to which no violations have been found
are hereby dismissed.
1 We hereby correct the following inadvertent errors in the Trial
Examiner's Decision which in no way affect our adoption thereof In the
first paragraph the correct year is 1970, not 1969; In the 15th paragraph
under section II the year is corrected to read 1969
2 In footnote 22 of the Trial Examiner's Decision substitute "20" for
"10" days
TRIAL EXAMINER' S DECISION
STATEMENT OF THE CASE
RAMEY DONOVAN, Trial Examiner: This case was tried in
Terre Haute, Indiana , on May 20 and 21, 1970. The charge
had been filed on November 4, 1969, by Harry A. Switzer,
an individual, against Laughrey Bros . Roofing & Siding
Co., Inc., herein the Company or Respondent. The
complaint issued by the General Counsel of the Board was
dated April 30, 1969, and alleged a discriminatory refusal to
hire Switzer because of activities of his protected by the
Act, all in violation of Section 8(a)(1)(3) and (4) of the Act.
Respondent's answer denies the commerce jurisdictional
allegations of the complaint and denies the commission of
the alleged unfair labor practices. Pursuant to prior notice,
the General Counsel, at the inception of the hearing,
amended the jurisdictional allegations of the complaint.
Respondent moved for dismissal of the complaint for lack
of jurisdiction.
Upon the entire record and from observation of the
witnesses, the Trial Examiner makes the following:
FINDINGS AND CONCLUSIONS
I. JURISDICTION
Respondent is an Indiana corporation with its principal
office and place of business in Terre Haute, Indiana, where
it is engaged in business as a roofing, siding, and home
improvements contractor. In the past year Respondent has
purchased goods and materials directly from suppliers
outside Indiana of a value in excess of $20,000 and such
goods and materials were shipped to Respondent from
outside the State of Indiana.
Hartmann Co., Inc., is also an Indiana corporation with
its principal office and place of business in Terre Haute,
Indiana, where it is engaged in business as a roofing and
sheet metal contractor. In the last 12 months Hartmann has
purchased and received at its place of business goods and
materials valued in excess of $50,000 directly from States
other than Indiana. Hartmann is an employer engaged in
commerce within the meaning of the Act.'
There are five roofing contractors in Terre Haute,
Indiana, who, since at least 1952, have, jointly and
collectively, as the Terre Haute Roofing Contractors
Association, negotiated annually or every 3 years, contracts
between the Association and United Slate, Tile and
Composition Roofers, Damp and Waterproof Workers
Association, Local No. 150, a labor organization.2
Typically, the most recent contract for the period May 1,
1968, to April 30, 1971, was between the Terre Haute
Roofing Contractors Association and the Union. The
signatory page set forth the names of the Association and
the Union as the parties to the contract and apparently
I In Hartmann Co, Inc, Case 25-CA-3639, heard by this Trial
Examiner on May 19, 1970 , a decision has issued in which it was also
found that Hartmann was an employer engaged in commerce within the
meaning of the Act.
2 The contractors aforementioned were Hartmann Co., Inc, Respon-
dent Laughrey Bros ; Lough Bros Roofing & Siding Co, Inc , Paitson
Roofing Co ., Inc ; and Guarantee Roofing Co , Inc
187 NLRB No. 70
LAUGHREY BROS . ROOFING & SIDING CO. 535
each member of the Association signed under the following
heading:
Terre Haute Roofing Contractors
Association
is, therefore, appropriate to consider the total business of
members of the Association? We find that Respondent is
an employer engaged in commerce within the meaning of
the Act, both statutorily and also within the standards of
the Board's discretionary jurisdiction. We deny Respon-
dent's motion to dismiss for lack of jurisdiction.
11. THE ALLEGED UNFAIR LABOR PRACTICES
By
First Party
United Slate, Tile and Composition
Roofers, Damp and Waterproof
Association, Local No. 150
By
Second Party
Robert T. Laughrey, known as "Ted," is vice president of
Respondent and is the son of Robert W. Laughrey,
president. Robert T. testified that every 3 years the Terre
Haute contractors, aforedescribed, get together and jointly
bargain a contract with the Union. The participants in the
joint negotiations are the union representatives on the one
side and the contractors committee on the other side. The
latter committee is composed of the president or represent-
ative of each contractor, with John Hartmann, president of
the Hartmann Company, as the spokesman. Hartmann is
the largest contractor in Terre Haute in terms of number of
employees and Robert T. Laughrey stated that "John
[Hartmann] is the oldest roofing contractor in Terre Haute,
and probably the State of Indiana, and more or less we
leave it up to him to run the Committee." Laughrey testified
that the Association has no officers or meetings or address
and its sole function is to negotiate a periodic contract with
the Union. There has been no instance of an individual
contractor withdrawing from the contract negotiations, and
the contract negotiated between the Association and the
Union is the contract applicable to all members of the
Association.
In our opinion, the existence of a multiemployer
bargaining unit is clear. The instant multiemployer unit
functions under the name Terre Haute Roofing Contrac-
tors Association, and the formality or informality of this
Association is immaterial on the issue.3 In deciding the
jurisdictional question in such a multiemployer situation, it
3 The John J Corbett Press, Inc, 163 NLRB 154, 155, 157, and cases
cited therein
4
we shall adhere to our past practice of considering all members
by multiemployer bargaining negotiations as single employers for
jurisdictional purposes" Siemons Mailing Service, 122 NLRB 81, 84,
Carpenter & Skaer, Inc 90 NLRB 417, 419
1 Jackewicz has been employed by Hartmann for 9 years He is a
In 1958, Harry Switzer, a member of the Union, began
working in the roofing industry in Terre Haute for the
Paitson Company. After about 4 years in the United States
Marine Corps, Switzer returned to roofing in Terre Haute
in 1964. From early in 1965 to February 1968, he was
employed as a roofer by the Hartmann Company in Terre
Haute. Switzer was a journeyman roofer. This was the basic
job classification in the union and the trade. The other
rank-and-file classification was that of apprentice-trainee
and apprentice. Roofing work can be divided into what is
called buildup or flat roof work, sometimes referred to as
hot work, and shingle or sloped or angled roof work.
Commercial and industrial buildings usually have flat roofs
and the roofing, simply stated, consists of layers of building
paper applied with hot tar or asphalt coating. Private
homes, some churches, and other structures usually have
sloping roofs and shingles of various types are applied to
such roofs. The record indicates that roofing contractors
perform both types of roofing work but some may normally
perform a high percentage of flat roof work while others
have a high percentage of shingle jobs. Journeyman roofers
may have become experienced in one or the other type of
work and may thus become more proficient at either
buildup or shingle work. Some journeymen have had
experience in both types of work but with more experience
and expertise in one type. Apparently a relatively small
number can be regarded as specialists in both types of
work. Switzer had performed both buildup and shingle
work. There is no evidence that his work was unsatisfactory
in either category. In fact, the evidence indicates that he
was an all-around roofer but that he had spent a higher
proportion of his working experience in buildup rather than
in shingle work.
In February 1968, while employed by Hartmann, Switzer
sustained a back injury. After securing a medical release,
Switzer returned to work for Hartmann in July 1968,
sometime before the middle of the month. At the end of
Switzer's first day at work in July 1968, John Hartmann,
owner of the Company, discharged Switzer. Both Robert
Medley, Switzer's foreman at the time, and Jackewicz,
business agent of the Union, told Switzer at the time that, in
effect, they did not consider Hartmann's action justified .5
A strike of I or 2 days' duration was engaged in by
employees of Hartmann against their employer when
Switzer was discharged as aforementioned. Switzer filed a
charge against Hartmann with the National Labor
foreman For 15 years, and up until about 2 weeks before the instant
hearing, Jackewicz has also been the business agent of the Union in Terre
Haute He thus had the dual role of foreman for Hartmann and business
agent of the Union Robert T Laughrey, vice president of Respondent and
son of the president, Robert W Laughrey, had worked in the roofing trade
for about 10 years and had been president of the Union Local from 1959 to
1961
536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Relations Board in October 1968, alleging that his
discharge was illegal. This charge was dismissed by the
Regional Director of the Board on November 29, 1969. The
instant charge against Respondent was filed on November
4, 1969.8
Switzer testified that, between October 1968 and
November 1969, he applied for work about a dozen times at
Respondent's office. On such occasions he states that he
either spoke to the woman in the office or a man. He would
ask if they were doing any hiring and would be told, no.
Sometimes, Switzer states, his name, address, and telephone
number were taken down on A piece of paper by the woman
or the man but on other occasions nothing was written
down. Switzer never had any contact with Robert W. or
Robert T. Laughrey during this period although Robert W.
does the actual hinng at Respondent's.
Although there apparently is another woman in Respon-
dent's office, the evidence indicates that the two people who
have contact with job applicants who come to the office are
Mrs. Kops, the bookkeeper, and Maxwell, who functions
generally like an office manager although he has no specific
title. Kops has less contact with applicants than Maxwell
and she generally enters into the picture only in Maxwell's
absence. The entire procedure involving job applicants
coming to Respondent's office is quite informal and does
not follow any precise format. There are no punted job
application forms and, if a man walks in and asks if the
Company is doing any hiring, Kops or Maxwell will answer
affirmatively or negatively, depending on what they know.
Sometimes they will write the applicant' s name , address,
and telephone number on a piece of paper and sometimes
not. These pieces of paper appear to have no prescribed
destiny since as far as appears they are not filed and no
index of applicants appears to be maintained. Maxwell will
usually ask an applicant what type of work he wants and
something about his experience. If Maxwell knows the
Company is looking for help with a particular skill or
experience and such an applicant comes in, Maxwell will
probably arrange for the man to be interviewed by
President Laughrey who does the actual hiring.
From all the evidence, including Switzer's testimony, the
Trial Examiner believes that if Switzer had been to
Respondent's office about a dozen times between October
1968 and November 1969, as Switzer states, the man and
the woman to whom he spoke on such occasions, either one
or both at different times, was Kops or Maxwell. On these
occasions, according to Switzer, he would ask if there was a
job opening or whether they were hiring and was told, no.
Kops testified that the only time she saw Switzer at
Respondent's office was October 28, 1969. Maxwell also
states that this was the only occasion when he spoke to
Switzer. During the course of the hearing, Switzer stated
that the woman to whom he spoke on his numerous visits
was Kops and he identified a man sitting in the spectators'
section of the courtroom as the man to whom he spoke at
Respondent's office. This particular man then stood up and
gave his name and place of employment. He had no
connection with the roofing industry or with Respondent.
6 Another charge against Hartman , filed January 20, 1970, alleged
illegal refusal to hire That matter was litigated in a hearing held in Terre
Haute on May 19, 1970, Case 25-CA-3639
His name was Cohn and he was obviously a random
spectator who chanced to be in the courtroom. Switzer then
retracted his identification, saying he had only seen a man
in Laughrey's office "twice" The latter apparently by way
of explanation as to why Switzer had made the
misidentification.7 Although it may be that Switzer had
gone to Respondent's office on numerous occasions before
October 28, 1969, the Trial Examiner is not prepared to find
this to be the fact.
Switzer also testified that from October 1968 to
November 1969, he had, in effect, applied for employment
with all the roofing contractors under contract with the
Union in Terre Haute. This would of course include
Respondent. The foregoing type of application, as de-
scribed by Switzer, was by reason of the fact that
Jackewicz, the union business agent, knew that Switzer was
out of work and Switzer had sought employment through
Jackewicz as the business agent of the Union. According to
Switzer, Jackewicz had said at a union meeting that he had
sought to secure employment for Switzer but was
unsuccessful and that he could not secure employment for
Switzer in Terre Haute but could secure work for him in
Evansville or in Indianapolis.
The contract between the Association and the Union
provides that the former "recognizes the Union as the
proper source from which to obtain workmen, whenever
available." It is further provided that whenever, after
reasonable notice, the Union "is unable to furnish a
sufficient number of duly qualified workmen ..." the
contractor may hire from other sources, subject to the
requirement that employees hired from other sources shall
apply for union membership within 7 days and remain in
good standing in the Union. Ordinarily, under the
foregoing type of contract provision, we would expect that
Respondent, if it needed employees, would first resort to
the Union, and the union business agent, knowing that
Switzer was seeking work, would refer him to Respondent.
The record reveals that in 1968 Respondent hired only
one roofer and that was on September 16. In 1969 and 1970
the following picture is shown:
Date
Employed
Date
Terminated
Parsons 2/25/69 3/5/69
Needham 3/4/69 5/7/69
Howard 4/14/69 5/29/69
R. Richey 4/21/69
Davidson 6/23/69 6/23/69
Lents 6/24/69 6/25/69
McDowell 9/5/69 4/22/70
Williamson 10/28/69 12/24/69
J. Richey 3/11/70 4/30/70
Airhart 3/13/70 3/18/70
The evidence regarding the foregoing employees and the
7 At another point in his testimony Switzer stated that he had talked to
the man in Laughrey's office about seven or eight times and on each
occasion the man had written down his name and address
LAUGHREY BROS . ROOFING & SIDING CO. 537
circumstances of their hire is limited. Such information as
we have before us on this aspect was elicited from Robert
W. and Robert T. Laughrey.8 Robert T. Laughrey testified
that he knew nothing about Parsons or Needham or how
they were hired. He knew R. Richey and said that he was
still employed. He could not recall Davidson and did not
know McDowell. Laughrey stated that Williamson came in
and applied for ajob and was not hired through the Union.
This was also true of J. Richey and Airhart who had worked
for Respondent on a prior occasion. Robert W. Laughrey
testified that Lents had contacted him directly and was not
hired through the Union. Lents was hired as an apprentice.
Robert W. had no recollection of Howard. Robert W.
stated that McDowell was a young man who had worked
for the Company about 5 years and, when he got married,
Laughrey hired him as an apprentice. Laughrey also said
that Davidson, who worked only I day, had been hired as
an apprentice.
There is no evidence that shortly prior to or at the time
any of the foregoing employees were hired, the Respondent
had notified the Union that it had an opening for an
employee or that Respondent had requested the Union to
refer any applicant to Respondent. Nor is there any
evidence that any of the employees hired in 1968-1970 had
been referred to Respondent by the Union. From the
testimony of the Laughreys, as well as the testimony of
Kops and Maxwell, it appears that in the course of a year
many job applicants came to Respondent's office. They
would ask if Respondent was hiring and depending on the
circumstances of whether or not Respondent needed an
employee, and the qualifications of the applicant, he might
be hired or not. As far as appears no applicant was ever
asked if he had been referred by the Union to Respondent
and, if a man was hired, he was hired by Respondent
directly without reference to the Union.9 The one instance
that the record reveals of Respondent asking the union
business agent if he had a couple of good roofers available
will be considered at a later point.
Our purpose in considering Respondent's hiring practice
was due to Switzer's testimony that Jackewicz, the union
business agent, was aware that Switzer was out of work and
was seeking employment. Since under the terms of the
contract, Respondent would be expected to call upon the
Union in the first instance if it had an opening for an
employee, the fact that Respondent hired a substantial
number of employees directly in 1969-1970 might indicate
that it was deliberately passing over Switzer. But this
reasoning depends upon whether in fact Respondent
customarily went to the Union in the first instance when it
had a job opening (which was the procedure set forth in the
contract) If Respondent customarily and initially had gone
to the Union, Respondent presumably would have been
aware of Switzer's status as ajob applicant and its failure to
8 President Robert W Laughrey was the person who had the final word
on hiring employees
9 It may be that after a man was hired he was obliged to join the Union
as required by the contract If this were so, it might have been satisfactory
to the Union since its dues income from persons employed would be
protected Whether out of work union members viewed the matter in the
same light is another question
10 The picketing on October 30 on the hiring of employees was not
initiated by the Union and there is no evidence that the Union or its
hire him, and its hiring of other persons directly, might well
indicate discrimination.
However, it is our opinion that the evidence indicates that
Respondent customarily did its own hiring without securing
applicants from the Union. As far as appears, Respondent
did not initiate such a practice when Switzer was out of
work but had been operating in that manner for some time.
While the practice may have adversely affected Switzer's
chances of securing a job, the evidence does not show that
the practice was instituted to discriminate against Switzer.
Moreover, other union members were affected by the fact
that Respondent, and apparently other contractors that
were parties to the contract, were hiring employees directly
and not hiring through the Union. Six union men picketed
contractors in Terre Haute, including Respondent, because
the contractors were not contacting the Union for
employees. This was not a situation confined to Harry
Switzer Two of the men who picketed, union members
Noel and Harris, testified that they were unable to secure
roofing work in Terre Haute but were obliged to work out
of town and they did not think it right that the contractors
were hiring others and not hiring through the Union.io
We do not, therefore, view the fact that Respondent was
hiring employees "off the street" in the period up to
October 28, 1969, and not resorting to the Union in the first
instance as a source of employees, as evidence of illegal
discrimination against Switzer or that the practice was
instituted to avoid hiring Switzer. Switzer and others were
apparently the victims of a situation where the Union and
the Association members, the parties to the contract, were
operating, at least as to hiring, in a manner difficult to
reconcile with the provisions of the contract. But the matter
of contract interpretation and enforcement is not before us.
Our interest is the matter of evidence bearing upon alleged
discrimination against Harry Switzer by refusing to hire
him because of his activities protected by the Act. At this
point we simply determine that in view of the fact that,
quite apart from Switzer, the parties to the contract
apparently did not take the hiring provisions of the contract
too seriously, the evidence that Respondent directly hired
employees up to October 28, 1969, without first contacting
the Union to see if there were any out-of-work roofers
known to the Union, does not establish discrimination
against Switzer because of his protected activities. And, by
the same token, the fact that Switzer had let the union
business agent know that he was out of work and looking
for a job, was not an effective application for employment
to Respondent, for the simple reason that, for some time
and customarily, Respondent was hiring employees directly
and not through contacting the union business agent. We
also regard as dubious that the business agent ever went to
Respondent and said, in effect, that Switzer is available for
work and if you need a roofer, let me know and I will send
business agent ever protested that Respondent or any other contractor, by
hiring employees without first applying to the Union, was not complying
with the provisions of the contract One of the contractors that was
picketed by the individual union members on October 30 was Hartmann
The union business agent, Jackewicz, said he would cross the picket line
and we assume that this was because he either did not wish to give a union
imprimatur to the picketing or because he was a foreman employed by
Hartmann or both
538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Switzer. The fact that the business agent reported to Switzer
and to a union meeting that he could not get a job for
Switzer in Terre Haute does not establish that the foregoing
direct contact was made with Respondent. Perhaps what
the business agent reported was the fact but it may have
been based on factors known to the business agent but not
spelled out by tangible evidence in this record. I'
This bungs us to the events of October 28, 1968. From the
record we are satisfied that October 28 is the correct date.12
On that date, according to Jackewicz, the business agent of
the Union and foreman employed by Hartmann, he and
another Hoffmann employee, Conard,13 were putting a
roof on a housing development which was a Hartmann
contract job. Laughrey (Robert T.) and Kennedy, de-
scribed as Laughrey's sales manager, came up on the roof
and Laughrey said to Jackewicz that he would like to have a
couple of journeymen roofers. Looking over at Conrad,
who was working at the time, Laughrey observed that he
would like to have a couple like "him." Jackewicz said he
had two men out of work, Harry and Carl Switzer.14
According to Jackewicz, Laughrey said, "they can't lay
shingles, can they?" and Jackewicz replied that they worked
at shingle laying but he did not know how good they were.
This was the end of the conversation.
Laughrey's version is, in effect, that he made no reference
to shingles because at the time of the conversation he was
bidding on a job in Brazil, Indiana, that would entail the
use of buildup men rather than shingle men. He simply
asked Jackewicz if he had any good roofers and Jackewicz
may have mentioned that the Switzers were available. The
Trial Examiner believes that there was no reference to
shinglemen in the conversation and that Jackewicz did
mention the availability of the Switzers. We note that
Jackewicz, in an affidavit given in February 1969, states
that Laughrey was looking for buildup men at the time
because Laughrey thought he might secure a contract that
would entail buildup work. Jackewicz also states therein
that he told Laughrey of the availability of the Switzers and
that they were good roofers.
Within a short time after the foregoing brief and
indeterminative conversation, Harry and Carl Switzer came
by the housing project where Jackewicz was working. They
asked the latter what contractor had contacted him for men
most recently. Jackewicz said that it was Ted Laughrey and
that Ted had just left and that they could go down to the
Laughrey office.
The Switzers thereupon drove to Respondent's office
where they spoke to Kops, who referred them to Maxwell.
In substance, the Switzers said that they had heard that the
Respondent was hiring men. Maxwell said that he was not
aware that the Company was hiring but he asked the
ii Jackewicz , in an affidavit that is in evidence, referred to an occasion
on October 28, 1969 , described hereinafter , when Laughrey asked him if he
had a couple of journeymen roofers available Jackewicz stated, "that was
the only time I referred the Switzers [ Harry and Carl ] to Laughrey during
the past year and a half "
i2 Among other factors, we note that in his handwritten charge , filed on
November 4, 1969, a few days after the event , Switzer describes the events
as occurring "on Tuesday , October 28."
13 Incorrectly spelled Conner in the record
14 Carl Switzer was a brother of Harry. He, like Harry , had worked for
Hartmann until 1968, when he quit , not long after Harry 's discharge in
July 1968 . During his employment with Hartmann Carl had been the union
Switzers about their work. The gist of the reply was that
Carl was a buildup roofer and that Harry did both buildup
and shingle work. Maxwell took down their names and
addresses on a piece of paper.
Neither Switzer was thereafter contacted or hired by
Respondent. Robert T. Laughrey testified that the Brazil
job and some others that he had bid on or that he thought
he might secure, had never materialized and Respondent
had not been awarded the contracts.
However, a compilation prepared by Kops from
Respondent's records shows, under "Date Employed" and
"Date Terminated" that an individual named Williamson
has the date "10/28/69" under "Date Employed." 15
Robert W. Laughrey testified that he had hired Williamson
on October 27 and that his first day at work was October
28. Robert T. Laughrey appeared to know little about
Williamson but he said that his, Laughrey's, father, Robert
W., had interviewed and hired Williamson on October 27,
before Robert T. spoke to Jackewicz. The Trial Examiner
believes that the evidence indicates that Williamson was
interviewed and hired on October 27 and that "Date
Employed" is the date he actually went to work on the
payroll. We do not find that Williamson was hired on
October 28 after Respondent had been informed by
Jackewicz that Harry Switzer and his brother were
available for work. It also appears from Robert T.
Laughrey's testimony, which was not controverted on the
point, that Respondent did not secure the contract for the
Brazil job and some other jobs that Robert T. had had in
mind when he had spoken to Jackewicz on October 28.
On October 30 or 31, 1969, six union roofing employees
picketed the various roofing contractors in the Terre Haute
area who were under contract with the Union. The
picketing lasted about half a day. The six employees were
Harry and Carl Switzer, Paul Switzer, Foster, Noel, and
Harris. In testifying, Harry Switzer stated that the six
pickets had been out of work as long as he had been and
they were protesting the contractors' failure to call upon the
Union for employees as required by the contract. The two
pickets at Respondent's place of business were Noel and
Harris. When Richard T. Laughrey came to the office and
shop and saw the two pickets in front, he asked them what
it was about. Noel testified credibly that he told Laughrey
that "we" were picketing because "we wasn't getting hired
in Terre Haute and we had to go out of town to get work."
Laughrey replied that he suspected that the Switzers were
behind "the whole damn deal." Noel replied that "it was all
of us doing it." Laughrey said that Carl and Harry Switzer
were looking for work and that "he wouldn't hire neither
one of the sons-of-bitches because they're troublemakers."
Harris testified to substantially the same effect.
steward at one period and in the course of his stewardship be had had
several clashes with Hartmann over seniority and other conditions of
employment of employees . Neither brother had ever worked for Laughrey.
During the period when Robert R Laughrey was president of the Union he
states that he had received no complaints about Harry Switzer . Laughrey
testified that he had met Carl but when this occurred or under what
circumstances , we are not told. Laughrey also stated that , prior to October
28, 1969 , he had "heard of the Switzer brothers" (there was also another
brother, Bill, who, like his brothers, was a journeyman roofer in the Terre
Haute area).
15 Date terminated was 12/24/69
LAUGHREY BROS . ROOFING & SIDING CO. 539
Robert T. Laughrey testified that he had become excited
and irritated when he saw the pickets in front of
Respondent's premises. Although Respondent's roofers
had already gone to work, Laughrey states that the
picketing delayed Respondent's carpenters going to work.16
Laughrey also states that in his conversation with the
pickets the Switzers' name came up and he did say that he
would not hire the sons-of-bitches (the Switzers) because
they were troublemakers. On October 30, Laughrey states
that Respondent had no openings for anyone in the roofing
trade.
In explaining the aforementioned castigation of the
Switzers, Laughrey testified that it was due to his excitment
because of the presence of the pickets and that he had heard
that the Switzers were troublemakers. Although he had
heard of the Switzers previously in a general way it was not
until the day of the picketing that he learned that Carl and
Harry had actually applied for work at Respondent's place
of business.' 7 As mentioned, Laughrey states that when he
had been president of the local union, he had received no
complaints about the Switzers. Later, apparently, over a
period of time, Laughrey states that he had received
information that the Switzers were troublemakers. This
information was not in terms of Harry specifically or any
individual Switzer. A roofer named Payne, who worked for
Respondent for about 14 years and who was a member of
the Union, according to Laughrey, was one of the persons
who had told him that the Switzers were troublemakers.
Laughrey was unable to say when Payne gave him this
information. Bob Richey, a roofer and foreman, who had
commenced working for Respondent in April 1969, also,
states Laughrey, gave him the same report about the
Switzers being troublemakers. Some other employee also
told the same thing to Laughrey but he was unable to
remember the name.
Laughrey states that he did know that Hartmann had
discharged Harry Switzer in 1968 but that he was unaware
of any NLRB charge filed by Switzer against Hartmann
until sometime after Switzer had filed his November 1969,
charge against Respondent. Laughrey also states that he
had no conversation with Hartmann about the Switzers or
about Harry's charge against Hartmann. Robert W.
Laughrey also asserts that he had no conversations with
Hartmann and states that the first he knew about the
Switzers having applied for work at Respondent's office
was on the day of the picketing, October 30, 1969. In an
affidavit given on December 22, 1969, Robert T. Laughrey
stated that he had heard that the Switzers were troublemak-
ers from Payne and Richey, aforementioned, and also from
other employees and "even other contractors, such as
Hartmann, Lough Bros., Paitson and Guarantee but I
cannot recall specifically who said what or what specifically
was said about them." On balance, the Trial Examiner
believes that in addition to what employees told him about
16 In addition to roofing , Respondent performed siding work and
evidently used carpenters in such work
17 Evidently a reference to the October 28 application to Maxwell
18 Inter a/Ia, Hartmann testified in the instant case as to why he
considered Harry and the other Switzers to be troublemakers Part of this
was Hartmann 's belief that the Switzers had been responsible for work
stoppages at Hartmann 's and also the fact that Harry Switzer had filed a
charge against Hartmann that had been dismissed for lack of merit Carl
the Switzers, some contractors, at one time or another,
probably told Laughrey that the Switzers were troublemak-
ers. As far as appears there was no specific explanation of
the term.
According to Robert T. Laughrey, what he understood
by the term "troublemaker," as applied to the Switzers and
as told to him by others, was that the Switzers caused
"dissension on the job." Without further development in
the record of what Laughrey conceived as causing
dissension on the job, we are unable to conclude that to
Laughrey such activity included past Switzer activities
protected by the Act. Depending upon the facts, causing
dissension on the job could embrace activities protected by
the Act, for instance, calling fellow employees attention to
an employer's failure to provide necessary safety equipment
and bringing about a work stoppage thereby. This might be
characterized by some as causing dissension on the job. On
the other hand, causing dissension on the job or
troublemaking is not always or necessarily protected
activity. It depends on the actual facts developed. On the
instant record, we do not find that what Laughrey had in
mind regarding the Switzers ' alleged troublemaking and
dissension had been shown to be, by substantial evidence,
past protected activity by Harry or Carl Switzer when
dealing with other contractors nor, in our opinion, does the
record warrant our imputing to Respondent the motivation
that may have existed on Hartmann's part in dealing with
Harry or the other Switzers.18
There remains for consideration, however, the actual
event of October 30, namely the picketing. This peaceful
picketing by unemployed roofers, who believed that the
contractors were violating the union contract with respect
to hiring, was protected activity, within the meaning of
Section 7 of the Act. The evidence, earlier described,
manifests that Robert T. Laughrey believed that the
Switzers were responsible for the picketing and he
expressed his clear irritation and hostility toward the
situation. Credible testimony of Noel and Harris establish-
es that Laughrey said that he would not hire the "sons-of-
bitches," the Switzers, because they were troublemakers.
While we have found the evidence to be insufficient to
include in the term, "troublemakers," as used by Laughrey,
past protected activities of the Switzers involving Hart-
mann and the Switzers, Laughrey, in our opinion, was
clearly referring to the October 30 picketing as troublemak-
ing for which he deemed the Switzers responsible. This
picketing we regard as protected activity.
An expression of opinion about the picketing or the
Switzers is one thing. However, Laughrey made a strong
statement, with convincing finality, that he would not hire
the Switzers because they were trouble-makers. This was
not limited to October 30, when Respondent had no
opening for roofers, but was a general interdiction of
employment of the Switzers by Respondent. The trouble-
Switzer as union shop steward at Hartmann had some clashes with
Hartmann in the discharge of his steward's duties. Hartmann also testified
that when he told one of his foremen , Medley, that Harry Switzer had
applied for a job at Hartmann 's, Medley said that Hartmann would have
to get a new crew of roofers if Switzer was hired, and thereby implying that
if Switzer was hired the other men would quit . Medley testified credibly
that he had made no such statement and had never discussed the hiring of
Harry Switzer with Hartmann
540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
making of the Switzers that was indicated was, or included,
the picketing. We regard the foregoing statement of
Laughrey as a threat, a statement of position or policy
against hiring Harry Switzer or his brother in the future.
Since Harry Switzer and his brother were journeymen
roofers, members of the Union having a contract with the
Roofing Contractors' Association of which Laughrey was a
member and contracting participant, their normal future
employment expectation would be with the aforesaid
roofing contractors. Laughrey closed this door with respect
to any possibility of employment of the Switzers by
Respondent. We regard such an expressed threat, position,
and policy as inconsistent with the provisions of Section
8(a)(1) of the Act and we find a violation of that section to
have been committed.
Other than as found, above, we do not find that
Respondent has discriminatorily failed and refused to hire
Harry Switzer.
With respect to Respondent's hiring of Airhart on March
13, 1970 (terminated March 18, 1970); and J. Richey on
March 11, 1970 (terminated April 30, 1970), the evidence
indicates that their hiring was accomplished in the same
manner and for the same type of considerations that had
characterized Respondent's hiring over a long period.
Despite the contract, Respondent hired employees directly,
and prior resort to the Union, as on October 28, 1969, when
a substantial contract was being anticipated, was apparent-
ly the exception. Respondent hired Airhart and J. Richey
directly. They had both formerly worked for Respondent.
Robert T. Laughrey's uncontroverted testimony is that
Richey was a shingleman and that Airhart was both a
shingleman and a buildup man.19 Under the manner in
which parties to the contract were evidently administering
the contract, the direct hiring of Airhart and Richey, who
had the factors aforementioned attributable to them, was
not exceptional. Nor do we regard this hiring as constitut-
ing discrimination against Harry Switzer. For reasons
previously stated, Switzer's being on record with the Union
as an out-of-work roofer, was not an effective application
with Respondent at the time it hired Airhart and Richey.
Nor was Respondent's awareness on October 30, 1969, that
Switzer had applied for employment, sufficient to consti-
tute an effective application in March 1970, when
Respondent hired Afrhart and Richey.
The reasons for these conclusions are, as indicated, the
manner in which the contract was administered and the
manner in which Respondent hired. Neither of these
factors first came into being with respect to Switzer nor did
they have their inception because of a desire to discriminate
against Switzer. There is no evidence that Respondent
maintained a file of applicants. If a qualified roofer applied
to Respondent on a given day and if Respondent needed a
roofer at the time, and certainly if the applicant had worked
19 Richey's brother had been one of Respondent's roofers since April
1969
20 Regarding qualifications to work as a roofer, the record shows that
the Union had the classifications of journeyman roofer and apprentice In
practice, in the trade and industry, some journeymen had their major work
experience and skill in flat roof work and they were referred to as buildup
men. Other journeymen had their major experience and skill on steep roofs
where shingles were used and they were referred to as shinglemen or
shingle specialists Some men were skilled and experienced in both types of
previously for Respondent in a satisfactory manner, the
applicant would in all liklihood get the job. Perhaps if such
an applicant had walked in 3 days or a week before there
was an opening, Respondent might contact him a week
later if an opening occurred. But, there is no evidence of a
systematic reference file of prior applicants and, such
evidence as there is, shows a nonsystematic writing down of
a name and telephone number of applicants on a piece of
paper whose ultimate disposition was uncertain and
transitory.20
We have concluded, therefore, that aside from the
October 30, 1969, discriminatory threat not to hire Harry
Switzer, Respondent has not been shown, by substantial
evidence, to have discriminatorily refused to hire Switzer at
a time when there was a job opening for a person of
Switzer's qualifications and at a time when Switzer was
effectively making application for employment to Respon-
dent. Insofar as the complaint alleges actual discriminatory
refusal to hire Switzer at certain times, we recommend
dismissal of those complaint allegations of violations of
Section 8(a)(3) and (4) of the Act.
CONCLUSIONS OF LAW
Respondent, when its place of business was picketed, an
activity for which it held Harry Switzer and his brother
responsible, stated and threatened that Respondent would
not hire Harry Switzer or his brother because they were
troublemakers, the latter term including the then picketing,
as activity protected by Section 7 of the Act. By such
statement and threat, Respondent violated Section 8(a)(l)
of the Act. Respondent has not otherwise violated the Act
as alleged in the complaint under Section 8(axl), (3), and
(4) of the Act.
THE REMEDY
Having found that Respondent has violated the Act, it
will be recommended that it cease and desist from such
conduct. More specifically, it is recommended that
Respondent abandon its stated position and threat and not
refuse to hire Harry Switzer upon a timely and viable
application for employment in any job as a journeyman
roofer that Respondent may have, or is about to have,
unfilled and open, and which job the said Switzer is
qualified to perform satisfactorily according to reasonable
judgment standards.
RECOMMENDED ORDER
It is recommended that Respondent, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Stating and threatening that it will not hire Harry
Switzer, one of the "Switzers" referred to by Respondent in
work Harry Switzer had performed both buildup and shingle work without
criticism by his supervisors on the jobs His major experience had been
with the Hartmann Company and which performed both types of work but
the greater part of its work was buildup. Switzer, therefore, had performed
more buildup work than shingle work While not a shingle specialist,
Switzer could perform shingle work satisfactorily Respondent 's contracts
were predominantly in the shingles field, about 95 percent , although it did
perform some buildup work
LAUGHREY BROS . ROOFING & SIDING CO.
making such statement and threat, because Harry Switzer
had engaged in, and was believed by Respondent to be
responsible for, activity protected by Section 7 of the Act.
(b) In any like or related manner threatening or
interfering with employees in the exercise of their rights as
guaranteed under Section 7 of the Act.
2. Take the following affirmative action necessary and
appropriate to effectuate the policies of the Act:
(a) In the event that Harry Switzer makes a timely and
viable application for employment as ajourneyman roofer
with Respondent and Respondent has, or is about to have,
an unfilled and open job for such a journeyman roofer,
which job the said Harry Switzer is qualified to perform
satisfactorily according to reasonable judgment standards,
Respondent shall offer to employ Harry Switzer in the
aforementioned job.
(b) Post at its place of business in Terre Haute, Indiana,
copies of the attached notice marked "Appendix." 21 Copies
of said notice, on forms provided by the Regional Director
for Region 25, after being signed by Respondent's
representative official, shall be posted by Respondent
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken to
ensure that said notices are not altered, defaced, or covered
by other material.
(c) Notify the Regional Director, Region 25, in writing,
within 20 days from the date of receipt of this Decision,
what steps Respondent has taken to comply herewith.22
21 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, recommendations, and Recommended Order herein
shall, as provided in Section 102 48 of the Rules and Regulations, be
adopted by the Board and become its findings , conclusions and order, and
all objections thereto shall be deemed waived for all purposes In the event
that the Board's Order is enforced by ajudgment of a United States Court
of Appeals, the words in the notice reading "Posted by order of the
National Labor Relations Board" shall be changed to read "Posted
pursuant to a judgmen t of the United States Court of Appeals enforcing an
Order of the National Labor Relations Board."
22 In the event this Recommended Order is adopted by the Board, this
provision shall be modified to read "Notify said Regional Director in
writing, within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith."
541
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which our Company was represented by its
attorney and the General Counsel of the National Labor
Relations Board was represented by his attorney, the Trial
Examiner, who heard the evidence, including the examina-
tion and cross-examination of witnesses, has found that we
have violated the National Labor Relations Act in certain
respects and that in other respects we have not violated the
said Act. The Trial Examiner has recommended that we
take the following remedial action because of violations
found to have been committed:
WE WILL NOT state and threaten that we will not hire
Harry Switzer because he is a troublemaker by reason
of his engaging in and being responsible for activity
protected by Section 7 of the National Labor Relations
Act.
WE WILL offer to employ Harry Switzer as a
journeyman roofer in the event he makes a timely and
viable application for employment as a journeyman
roofer at such time as we have, or, are about to have, an
unfilled and open job for a journeyman roofer, which
job Harry Switzer is qualified to perform satisfactorily
according to reasonable judgment standards.
WE WILL NOT in any like or related manner threaten
or interfere with employees in the exercise of their rights
guaranteed under Section 7 of the National Labor
Relations Act.
LAUGHREY BROS. ROOFING
& SIDING CO., INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions, may be directed to the Board's Office, 614
ISTA Center, 150 West Market Street, Indianapolis,
Indiana 46204, Telephone 317-633-8921.