Chapin & Chapin, Inc.

National Labor Relations Board - Board Decisions

Sep 12, 1974

213 N.L.R.B. 250 (N.L.R.B. 1974)

250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Chapin & Chapin , Inc. and Robert E. Rossey. Case DECISION
6-CA-6894
September 12, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
PENELLO
On May 22, 1974, Administrative Law Judge Almi-
ra Abbot Stevenson issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the General Counsel
filed a reply brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt her recommended Order.2
STATEMENT OF THE CASE
ALMIRA ABBOT STEVENSON, Administrative Law Judge:
This case came on for hearing before me at Pittsburgh,
Pennsylvania, and Ft. Lauderdale, Florida, March 5, 6, 18,
and 25, 1974. The original charge was filed and served on
the Respondent August 13, 1973; the first amended charge
was filed and served November 14, 1973; and the second
amended charge was filed November 29 and served Novem-
ber 30, 1973. The complaint issued November 30, 1973.
The issue is whether or not the Respondent denied em-
ployment to Robert E. Rossey on its Carnegie, Pennsylva-
nia, jobsite because the Respondent did not want to have
any "union problems," in violation of Section 8(a)(3) and
(1) of the National Labor Relations Act, as amended. For
the reasons set forth below, I conclude that the Respondent
violated the Act as alleged.
Upon the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the General Counsel and the Respondent,
I make the following:
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Chapin & Chapin, Inc., Pittsburgh, Penn-
sylvania, its officers, agents, successors, and assigns,
shall take the action set forth in the said recommend-
ed Order.
' The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to overrule
an Administrative Law Judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect . Standard Dry Wall Products, Inc., 91 NLRB 544
(1950), enfd . 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the
record and find no basis for reversing her findings.
2 Although not affecting the ultimate conclusions of the Administrative
Law Judge , we find merit in Respondent's claim that the Administrative Law
Judge should have found that it was Brown and not Smith who was supposed
to discuss with Rossey the latter's frequent presence in the field office, and
that Brown in fact did so on one occasion . We also agree with Respondent
that the record does not support the broad finding that Respondent's policy
is always to issue two checks rather than one check for the full amount of
wages due at the time of a layoff. Considering the record as a whole , however,
we find that such misconstructions are insufficient to affect either the credi-
bility resolutions, see fn . 1, or any material findings of the Administrative
Law Judge.
In agreeing with the Administrative Law Judge's conclusions concerning
the unlawfulness of Respondent's conduct in not hiring Rossey, we note
that Smith 's behavior in Carnegie further supports the finding that , but for
union pressure , Rossey was to be employed there. Thus, Smith' s statement
to Gower that Rossey "wasn't ... put ... to work because he didn't want
any union problems . ..," Smith's conversations with Local President Trot-
to in which Rossey was discussed , and Respondent 's unusual procedure of
withholding Rossey's last paycheck unless Trotto was also present, for
which there is no plausible explanation in our view, all indicate that it was
the possibility of "union problems " which prompted Respondent 's decision
not to employ Rossey . We also find it inherently improbable that Rossey
would have waited until the Carnegie job started to receive his final pay-
check if, as the Respondent contends , he had been presented with the op-
tion while at St. Mary's of receiving it at that time.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. JURISDICTION
The Respondent is an Ohio corporation with its principal
office located in Norwalk, Ohio, engaged in the business of
highway construction. During the 12-month period preced-
ing the issue of the complaint, the Respondent received
goods and materials valued in excess of $50,000 directly
from outside Pennsylvania for use at its Carnegie, Pennsyl-
vania, jobsite. The Respondent admits, and I conclude, that
it is an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
It. LABOR ORGANIZATION
The Respondent admits, and I conclude, that Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, Building Material and
Construction Drivers Local Union No. 341 is a labor orga-
nization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICE
A. Evidence Presented
Robert E. Rossey, the Charging Party, has been a mem-
ber of the Union since 1966. During the fall of 1971, Rossey
and Thomas R. Gower, a lead mechanic and a member of
Operating Engineers Union, were both employed by Glas-
cow Co. One day the two of them climbed into the cab of
CHAPIN & CHAPIN, INC.
a truck on the job and found a nut wedged into the gearshift
in violation of a company rule prohibiting truckdrivers from
blocking a transmission in this manner. As a result, Joe
Petno, who had driven the truck on the preceding shift, and
who also was a member of the Union, was discharged by
Glascow Co. Petno filed a grievance, and Rossey and Gow-
er testified at the hearings. While that proceeding was in
progress, Union President Hank Trotto asked Rossey to
testify that the nut had not been found in the block but on
the floor of the truck, and told Rossey that if he refused to
testify as requested, he would not work again. Rossey did
refuse, and his testimony in that proceeding did not con-
form with Trotto's request. The arbitrator subsequently de-
nied Petno's grievance. Thereafter, Rossey received a
summons to appear before the union executive board com-
mittee to answer charges filed by a business agent against
him for wronging a brother teamster. Rossey appeared be-
fore the committee in January 1972, but after a hearing the
charges were dropped.
On May 31, 1973, Rossey received a message from his
mother to call the union hiring hall promptly at 7 p.m.
because it had a job for him. He called promptly at 7 and
spoke to President Trotto.
. he said Bob who? Rossey. I said yes, sir. He said
how do you spell your last name, is it I E or EY? I said
you know me Hank, it's ROSSEY. He said hold the
line, he said Chuck Hineman [Secretary-Treasurer of
the Union] wants to have a word with you, do you
know Chuck and I said yes I do know Chuck and very
well. I said he sold me my or I got my union book off
of him in 1966.
Hineman came to the phone and told Rossey he needed
12 men for a job, but already had them.
Early in June 1973, Thomas Gower was hired by the
Respondent to work on a jobsite at St. Mary's, West Virgin-
ia, which was outside the jurisdiction of the Union. When
he arrived at the jobsite, Gower asked project superinten-
dent and admitted agent of the Respondent, B. J. Smith,
whether he would hire Rossey as a truckdriver. Smith
agreed to do so. Although Gower informed Smith that Ros-
ser had "a problem with the union in Pittsburgh," Smith
made no response to the statement.
Rossey reported for work at the jobsite in St. Mary's
about June 4. He was assigned to drive the water truck and
perform other duties during the few occasions when the
water truck was not in operation. His immediate supervisor
was Travis Chapin, son of the Respondent's majority stock-
holder and paving foreman on the jobsite.
On an occasion about midway through the St. Mary's
project or thereabouts when Rossey and Smith were at a
restaurant at St. Mary's, Rossey informed Smith in some
detail of his dispute with the Union over the Glascow-job
incident, and told Smith that the Union was not apt to place
him in a job. Smith responded that it made little difference
to him or that Rossey was not to worry about it.
B. J. Smith conceded that at the time he hired Rossey at
St. Mary's and on several subsequent occasions, he told
Rossey he would take him on to the Respondent's next job,
251
at Carnegie, Pennsylvania, if his work was satisfactory, and
that he intended to do so. Chapin also testified that he
assumed in the beginning that Rossey would be going on to
Carnegie if he proved to be a sufficiently good driver. Ros-
sey was employed for the duration of the St. Mary's project
until July 26 when his services were no longer needed there.
Except on one occasion referred to below, Rossey was not
criticized, warned, or reprimanded about his work or his
conduct. Nevertheless, he was refused employment on the
Carnegie job, which got under way about the first week of
August.
The record shows that the hours worked by each employ-
ee on the St. Mary's job were turned in by his foreman to
field office clerk Donn Brown at the end of each day;
Brown forwarded the figures to the office in Norwalk at the
end of the week; during the following week the hourly rate,
deductions, and net weekly earnings were computed, and
checks were made out in Norwalk and sent to Brown who
distributed them to employees on Friday. Brown had au-
thority to obtain figures by telephone and make out field
checks, which Smith signed, for pay owed an employee for
work performed during a current week and thus pay him in
full when the employee was terminated, and on certain
other unusual occasions. It is the Respondent's custom to
take some of its truckdrivers from one job to the next, and
to hire additional drivers as needed on each project through
the local hiring hall or "off the bank" on a walk-in basis.
Those drivers who were taken from St. Mary's to Carnegie
were not paid off when the St. Mary's job ended; I those who
had been hired locally for the St. Mary's job only were
terminated at the end of that job and were paid at the time
in full with two checks-one covering work performed the
preceding week executed in Norwalk, and another for the
current week made out by Brown and signed by Smith. On
July 26, Rossey received only one check, for work per-
formed the week ending July 21; he was not paid in full at
that time.
The factual findings related above were not in dispute.'
It is with regard to some of the events discussed below that
the witnesses were in dispute, and that the parties take op-
posing positions.
The General Counsel contends that the Respondent, al-
though aware of Rossey's difficulties with the Union, was
indifferent to them as long as it was employing him on the
St. Mary's site because the work was not within the Union's
jurisdiction; that when the job was finished, the Respondent
placed Rossey on on-call status for the Carnegie job; but
when work began on the Carnegie site, which was within the
Union's jurisdiction, the Respondent yielded to pressure
exerted by the Union and refused to employ Rossey in order
to avoid the displeasure of the Union. The Respondent
contends that Superintendent Smith decided about half way
through the St. Mary's job that Rossey was an undesirable
1 I do not understand the Respondent to contend that Rossey was not
taken to Carnegie because he was not one of the "key men" it was specifically
permitted by the applicable collective-bargaining agreement with the Union
to take from job to job. In any event , the agreement does not contain an
exclusive hiring hall provision , and Smith conceded that one of the drivers
he took , Brownlee , was not a keyman.
2 Except for jobsite steward Ronald Herman , referred to below , none of
the Union's officials testified.
252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employee and that he did not wish to employ him at Carne-
gie for that reason, and thereafter indicated as much when
Rossey inquired about such employment; and that Smith
terminated him when his services were no longer needed at
St. Mary's, before proceeding on to the Carnegie site and
any contact with union officials.
The General Counsel's case is built upon the testimony
of Gower and Rossey.
Rossey testified that he had no arguments or personality
conflicts on the St. Mary's job. Indeed, he was compliment-
ed on his work by both Smith and Travis Chapin. The only
time he was criticized was for the incident testified to by
B. J. Smith (discussed below). In any event, after that inci-
dent occurred, Smith again reassured Rossey only 10 days
or so before the St. Mary's job ended, when Smith asked
Rossey to take a temporary assignment in Weston, West
Virginia, that he still intended to take Rossey to Carnegie.
Moreover, when Rossey walked into the field office after
work on Thursday, July 26, Smith told Rossey the St.
Mary's job was finished except for a skeleton cleanup crew,
and told Brown to give Rossey his check, that he was going
to Carnegie . Smith said he was having trouble getting trucks
to move the batch plant to the Pittsburgh site , and that
Smith would call Rossey when he got the batch plant moved
and set up.
It is undisputed that Friday, being a regular payday for
the work performed the preceding week, ending July 21,
Brown had received from Norwalk the crew's checks for
that period, to be given out the next day. As Rossey was
leaving at once, Brown wished to give Rossey his check for
the week ending July 21 at the time, but Rossey's check had
not been received. Upon investigation, Brown discovered
that Rossey's check had been sent to Weston by mistake
because he had worked there temporarily during that week.
Rossey's testimony continued:
Rossey suggested that Smith just give him $25 or $50, and
when Rossey came to Carnegie, he could pick up the check,
cash it, and pay the Company back. Smith said he could not
give Rossey an advance. Brown then called the Norwalk
office again and asked for figures for a payoff for Rossey,
his "total hours," subtracted the wages due Rossey for the
current week, and wrote a field check for the preceding
week's work as a replacement for the misdirected Norwalk
check. Brown did not offer to pay Rossey for the last week
he worked at St. Mary's, and there was no discussion of that
matter.
On August 7, 1973, Rossey visited the Carnegie site to get
the check still due him and to see when the job would start.
After Brown told him his check was not there:
Mr. Smith said to me that he hadn't done me any good
that day, that Mr. Trotto had been out to the job site,
caught several laborers driving truck and that he had
to get all of his men then out of the hall.
Rossey then called Union President Trotto and told
him if Trotto had caught laborers driving a truck, Ros-
sey should receive a day's pay for it because Rossey
was employed by Chapin & Chapin and was on its
payroll.
3 It is a practice for an employer who permits employees who are not
He said no, I wasn't working for Chapin, I wasn't em-
ployed with Chapin. He said that B. J. Smith, Mr.
Smith had said that he didn't want me on the job was
his statement and that he would take anybody out of
the hall but me.
Rossey then called Smith and asked him if he had made that
statement to Trotto.
... and he said no Bob I didn't. He said I did have a
long talk with Mr. Trotto and a couple of my foremen
don't like your attitude and he said I have a road to
build. You understand my position, I have no alterna-
tive but to let you go.
Informed he could not get his check unless Trotto was
present, Rossey made several more trips to the Carnegie site
to get his check, but missed Trotto on each occasion. His
last visit was made August 13. Smith refused to give him the
check because Trotto was not present, but told Rossey if he
had known what Rossey and Gower were up to, he would
have stuck with them to the end. Rossey replied that they
were not up to anything, that Smith had known about his
union problems because it had been discussed at the St.
Mary's restaurant. Rossey received his final check August
16 after contacting the Wage and Hour Division.
Thomas Gower testified that on August 8, at the start of
the Carnegie job, Gower, who had been taken on to that job
from St. Mary's, encountered Smith on the jobsite.
Mr. Smith and myself were discussing the job, and I
asked B J., straight out if Bob Rossey was-why Bob
Rossey didn't come to the job, at Carnegie, and he
responded that he wasn't going to put Rossey to work,
because he didn't want any union problems... .
The Respondent presented testimony by B. J. Smith,
Travis Chapin, Donn Brown , Norwalk payroll superinten-
dent Duane Carpenter, and Union steward for the Carnegie
jobsite Ronald Herman.
B. J. Smith testified that in June about half way through
the St. Mary's job an incident occurred which infuriated
Smith with Rossey. Smith observed from some distance
away that Whitey (Norman Williams, Sr.), a Teamster
member and a foreman on the job, was about to run a rear
tire of the tractor-trailer he was driving onto a paving form.
Aware that Williams' view was obstructed by the load of
wire mesh on the truck, Smith ran toward the truck yelling
to Rossey who was standing near the truck to stop Whitey.
Rossey made no effort to stop the truck and it ran over the
form and blew a $250-260 tire. Smith asked Rossey,
why in the hell didn't you stop the truck and he said,
well, I'm not out here to watch the god damn drivers
or whatever the circumstances are. I'm out here to drive
a truck not to see to it that another driver doesn't make
members of the Union to perform work within the Union's jurisdiction to pay
equivalent wages to or through the Union to a member who would otherwise
have had the work.
CHAPIN & CHAPIN, INC. 253
a mistake.
Smith subsequently told Williams he was sorry he had not
fired Rossey on the spot.
Rossey's account of this incident, given on rebuttal, was
that both he and Smith waved their arms and yelled to
Williams to stop, but he failed to do so and hit the form
blowing the tire. Smith then said,
what was I doing, I let him back into that form, he said
I stood right there and watched him and I didn't do
anything.
I said, "B. J., I screamed my brains out and you
screamed your brains out and he wouldn't stop. I'm not
out here to watch Whitey, I'm not responsible for
Whitey's actions. He's the foreman, he's supposed to
make sure I do my job, my work."
After Williams got out of the truck,
I said what's the matter Whitey, why didn't you stop,
you heard us screaming, I said didn't you hear us
screaming and he said yes I heard you, but it was too
late to stop. That was all he said. He made a remark
then to Tom Gower that he felt like dragging up, drag-
ging up and quitting.
Gower was present , at some distance , when this incident
occurred , but did not see or hear enough to shed any light
on it . Williams did not testify.
On another occasion at St . Mary's , Smith 's testimony
continued , a mechanic named Griffy told him that Rossey
had gone through his tools at different times when Griffy
was away from his truck, and if Smith did not keep Rossey
out of his truck , he would have to lock it every time he got
out and that would make it harder for him to do his
mechanic 's work.
Rossey claimed he never went in Griffy's toolbox except
on occasions when Griffy sent Rossey to get tools and bring
them to him . Griffy did not testify.
Office Clerk Donn Brown testified he complained to
Smith a number of times about Rossey's interfering with his
work , and requested Smith to tell Rossey not to come to his
office and ask about his hours but to go to his foreman
instead. Smith testified only that Brown reported to him
that Rossey came into the office quite often to check his
time , but Smith did not indicate that he spoke to Rossey
about it.
Smith testified he discussed Rossey's performance with
Travis Chapin two or three times ; they evaluated him as
limited in what he could operate , as he was not a suitable
tractor-trailer driver; and his overall performance as aver-
age or below . It was the above factors , plus Rossey 's inabili-
ty to get along with supervisors, particularly Travis Chapin,
that decided Smith not to take Rossey to Carnegie.
Chapin testified that he considered Rossey average as a
driver of the water truck , but incapable as a tractor-trailer
driver, as he was unable to back that vehicle with adequate
guidance ; that it was not uncommon for Rossey to come to
work smelling of alcohol, although he was not, he said,
accusing Rossey of being drunk. Chapin also testified that
Rossey required supervision to oversee his work and to see
that he did not take the Company on his time. Chapin
discussed the matter with Smith two or three times , mainly
toward the end of the job. He told Smith he was not satisfied
with Rossey's performance, particularly his attitude on the
job, i.e., his personality and his inability to get along with
Chapin and Chapin's assistant, and the fact that several
employees, as well as Chapin, did not care to be in contact
with Rossey.
Although Gower agreed that Rossey came to work smell-
ing of alcohol on occasion, Rossey said he seldom if ever
drank hard liquor and pointed out that only 3.2 percent beer
is sold in West Virginia.
Smith's testimony continued: After the decision not to
take Rossey to Carnegie was reached, whenever Rossey
inquired, Smith told him it was "doubtful" he would be
going to the Carnegie site with the crew. Smith specifically
denied promising Rossey he was going to Carnegie at the
time he sent him to Weston. Smith finally informed Rossey
he would be dealing with the Local 341 hiring hall at Carne-
gie, advised him to register there, and promised that if the
Union sent him out, Smith would put him to work. Smith
affirmed that he made a prehearing statement to a Board
agent investigating the case to the effect that he had given
Rossey "no satisfaction" when he asked about going to
Carnegie, but never gave Rossey a direct "No."
At the end of the St. Mary's project, Smith testified, at
first, that he told Brown to write Rossey's check; he then
said he used the word "checks." Although he did not explain
to Brown, Smith said, he meant for Rossey to be paid off
in full-for the preceding week and the current week. Smith
testified both that he told Brown Rossey was being laid off,
and that he did not tell him that.
Brown's testimony was that Smith told him Rossey was
not needed and was laid off; that Brown called the Norwalk
office and obtained from a clerk there the figures for paying
Rossey for the previous week, ending July 21, and for the
current week, ending July 28. He wrote out a replacement
check for the week ending July 21. Although he was going
to write another check for Rossey's last week at St. Mary's,
the week ending July 28, Rossey told him it was not neces-
sary, that he wanted to receive his check for that period with
the other men, and as he lived close to the Carnegie job, he
would drop by and pick it up there. Carpenter implied that
it was he, and not his clerk, who gave Rossey's payoff fig-
ures to Brown over the phone from Norwalk.
Smith testified he arrived at the Carnegie site August 2.
It was on August 8, and not August 7, that Rossey first came
to the site, he said. On August 8, before Rossey showed up,
Smith said, Trotto visited the jobsite and questioned him
about laborers driving trucks; Smith told Trotto he did not
want Rossey because he permitted Whitey to run over the
form, went through Griffy's tools, and smelled of alcohol.
Trotto merely replied "it was immaterial to him one way or
the other whether he was hired or not." When Rossey
showed up later that day, he asked about employment and
said he heard Smith had laborers driving trucks. Smith re-
plied that he "doubted there would be employment for
him," but if he registered at the hall and was sent out, Smith
254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would accept him . Rossey stated that there was no need for
him to register because "with the standing he had in there
that they wouldn 't send him out."
On August 9, the day after the aforesaid events, Smith
testified , Ronald Herman reported for work . Herman and
Trotto met with Smith , and discussed Herman 's duties as
steward ; some mention was made of Rossey and Smith told
them he did not want Rossey on the project ; Trotto said it
was immaterial to him , but not to give Rossey his final
check unless Trotto was present to verify its accuracy.
On Rossey 's last visit to the site , August 10 or 11, he made
a final inquiry as to whether there was any work for him,
and Smith told him there would not be , without explaining
why.
Smith manned the Carnegie job with drivers brought
from St . Mary's and drivers sent out by the Union hall. He
testified that neither Trotto nor any other Local 341 official
told him they did not want Rossey on the Carnegie job nor
did any Union official try to influence him regarding
Rossey's employment.
Ronald Herman testified he was hired by the Respondent
out of the Union hall to drive the water truck on the Carne-
gie job, the same truck Rossey had driven on the St . Mary's
site . He was appointed Local 34 l 's job steward by the busi-
ness agent, an appointment he received on 75 percent of the
jobs he worked . Herman said he reported for work August
9 and it was he who received a day 's pay for driving per-
formed by laborers the day before , August 8. Herman testi-
fied he never heard Trotto say that Rossey was not to be
hired , but the day he reported for work Smith told him "he
had some problems with one of the Teamsters ," and asked
him, "Do you know a fellow by the name of Bob Rossey."
Herman replied he did , and asked if Rossey was coming on
this job . Smith then said , "definitely not, he will not be on
this job in Carnegie ." A few days later Herman also heard
Smith tell Gower that Rossey "definitely would not be on
the Carnegie job." Herman heard no reference to Union
problems , but conceded he did not hear the entire conversa-
tion.
B. Analysis and Conclusions
In my opinion, Thomas Gower's demeanor was the most
impressive of all the witnesses . In addition , his testimony as
a whole demonstrated that he is a man of integrity ; without
attempting to paint a portrait of Rossey as a flawless man,
he was firm and unshakable as to the reason Smith gave him
for Rossey's absence from the Carnegie site . As for Rossey,
careful review of his testimony as a whole and as to particu-
lars persuades me that although not entirely certain about
some minor matters , his account of the relevant events set
forth above was the true one. His character as one who
refuses to lie, even under pressure , was demonstrated at the
time of the Petno grievance hearings , and in my opinion was
demonstrated again in this proceeding in which he told only
what he knew without embellishment or dissembling.
By contrast, the demeanor of the Respondent's witnesses
was less impressive , and in instances their testimony was
inconsistent , self-contradictory, and at odds with undisput-
ed facts . Thus , except for the one occasion when Smith
sought to blame Rossey for the damage to Whitey 's truck,
it is undisputed that no one in authority criticized Rossey's
work on the St . Mary's job even though Smith and Chapin
claimed to have discussed his shortcomings on several occa-
sions among themselves . Smith did not corroborate Brown's
testimony that he asked Smith to remonstrate with Rossey,
and obviously Smith did not do so . Nor did he follow up on
Griffy's alleged complaint about his tools . Smith and Cha-
pin gave as one of Rossey's shortcomings his inability to
drive a tractor-trailer . Yet it is clear that Rossey was kept
busy the large majority of his time at St . Mary's, as Herman
was at Carnegie , driving the water truck . It also seems un-
likely to me that the smell of 3.2 beer would be offensive to
men doing heavy construction out of doors . Smith's and
Chapin 's references to Rossey 's "average" performance, at-
titude , personality , and inability to get along with people
were vague , unsupported by specifics , and unpersuasive.
I have no doubt that rightly or wrongly Smith lost his
temper with Rossey when Whitey blew the truck tire. I also
have no doubt that Travis Chapin did not like Rossey as
they seemed quite different types in many ways. The Re-
spondent does not claim , however, that it was for these
reasons alone that Rossey became persona non grata. In-
deed, it is the very plethora of complaints that casts discredit
on the Respondent's position . If there were so many things
wrong with Rossey, why would they never mention any of
them to him? And, more bewildering , why would Smith
mislead Rossey about his prospects of future employment
by saying his continuance with the Respondent was only
"doubtful ," and that he would be hired at Carnegie if he was
dispatched by the Union hall, and yet tell Trotto he would
not have Rossey on the project?
Moreover , the evidence presented by the Respondent to
controvert Rossey's testimony that Smith affirmed his con-
tinued intent to employ Rossey at Carnegie on his last day
at St. Mary's is unconvincing , to say the least . Thus, while
Brown testified that Smith said Rossey was "laid off," Smith
contradicted himself as to whether he said that or not. And
although Smith attempted to convey the impression that he
intended Rossey to be terminated by instructing Brown to
give him his "checks," he also contradicted himself as to
whether he said that or told Brown to give Rossey his
"check ." Brown and Carpenter were not in agreement over
Brown 's calls to Norwalk , Smith did not corroborate
Brown 's testimony that it was Rossey who refused his final
pay-off check ; and there is no indication that Smith raised
any question about this when he signed only one , instead of
two, field checks at the time of Rossey 's departure from St.
Mary's.
Accordingly , it is clear , and I find , that Smith intended
to employ Rossey on the Carnegie project through the time
he left St . Mary's for Carnegie.
It is also clear that the only relevant occurrence between
that time and the time Rossey reported to the Carnegie site
was Smith 's conference with President Trotto. It is undis-
puted that Trotto had threatened to prevent Rossey from
working because Rossey had testified contrary to the
Union's interests in the Petno matter . According to Smith,
Rossey's name did come up at this meeting with Trotto but
only in a context of Smith 's detailing his complaints against
Rossey and volunteering that he did not want Rossey on the
job, despite which Smith immediately thereafter again told
CHAPIN & CHAPIN, INC. 255
Rossey that his employment was only doubtful and prom-
ised to hire him if he was referred by the hall. Indeed,
according to Smith and Herman, Rossey's name came up in
other discussions, each time Smith reiterating his determi-
nation not to employ Rossey, and each time Trotto declar-
ing the immateriality of it while Herman remained silent.
Trotto did not come forward to support this testimony, and
I find it totally unbelievable.
Accordingly, I find that the reasons advanced for the
Respondent's refusal to employ Rossey at Carnegie were
pretexts to conceal the real reason, which was that Trotto
carried out his threat by informing Smith that the employ-
ment of Rossey would incur the displeasure of the Union,
and that Smith gave in and, on August 9, hired Herman to
perform. the work intended for Rossey in order to avoid
trouble with the Union as he revealed to Gower and implied
to Rossey.
I conclude that the Respondent thereby discriminated
against Rossey in violation of Section 8(a)(3) and (1) of the
Act.4
IV. REMEDY
In order to effectuate the policies of the Act, I recom-
mend that the Respondent be ordered to cease and desist
from the unfair labor practices found and from infringing
in any like or related manner on its employees' rights guar-
anteed by the Act.
Having found that the Respondent refused to employ
Robert E. Rossey for discriminatory reasons , I also recom-
mend that it be ordered to offer him immediate and full
employment as water-truckdriver at its Carnegie, Pennsyl-
vania,jobsite, or if that job no longer exists, to a substantial-
ly equivalent job, without prejudice to his seniority and
other rights and privileges, and to make him whole for any
loss of earnings suffered by reason of the discrimination
against him on August 9, 1973, plus interest at 6 percent per
annum. F. W. Woolworth Company, 90 NLRB 289; Isis
Plumbing & Heating Co., 138 NLRB 716.
Upon the foregoing findings of fact and conclusions of
law and the entire record, and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
Building Material and Construction Drivers Local Union
No. 341, or any other labor organization, except to the
extent permitted by a valid union-security agreement au-
thorized by Section 8(a)(3) of the Act.
(b) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Robert E. Rossey immediate employment to
the job of water-truckdriver at its Carnegie, Pennsylvania,
jobsite, or if that job no longer exists, to a substantially
equivalent job, without prejudice to his seniority or other
rights and privileges, and make him whole for his lost earn-
ings in the manner set forth in the section of this Decision
entitled "Remedy."
(b) Preserve, and upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all records necessary to analyze
the amount of backpay due under the terms of this Order.
(c) Post at all its jobsites within the jurisdiction of the
above-named Union, copies of the attached notice marked
"Appendix." 6 Copies of the notice, on forms provided by
the Regional Director for Region 6, after being duly signed
by an authorized representative of the Respondent, shall be
posted by the Respondent immediately upon receipt there-
of, and be maintained for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by the Respondent to ensure that the notices are
not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 6, in writing,
within 20 days from the date of this Order, what steps Re-
spondent has taken to comply herewith.
6 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."
ORDERS
The Respondent, Chapin & Chapin, Inc., of Norwalk,
Ohio , its officers, agents , successors , and assigns, shall:
1. Cease and desist from:
(a) Refusing employment to or otherwise discriminating
against any employee or applicant for employment in order
to avoid trouble with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America,
N.L.R.B. v. Aclang, Inc., 466 F.2d 558, 562 (C.A. 5); N.L.R.B. v. Local
138, International Union of Operating Engineers, AFL-CIO (Zara Contracting
Co., Inc., et at. ), 293 F.2d 187, 197 (C.A. 2); Motor City Electric Company, 204
NLRB No . 77; Rust Engineering Company, 183 NLRB No. 76.
5 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 , 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.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse employment or otherwise dis-
criminate against any employee or applicant for em-
ployment in order to avoid trouble with International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, Building Material and
Construction Drivers Local Union No. 341, or any
other labor organization, except to the extent permitted
by a valid union-security agreement authorized by Sec-
tion 8(a)(3) of the National Labor Relations Act, as
amended.
256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any like or related manner interfere
with , restrain , or coerce our employees in the exercise
of rights guaranteed to them by Section 7 of the Act.
WE WILL OFFER Robert E . Rossey employment to the
job of water-truck driver at our Carnegie , Pennsylva-
nia, jobsite , or if that job is no longer available, to a
substantially equivalent job, without prejudice to his
seniority or other rights and privileges.
WE WILL make Robert E . Rossey whole for any loss
of pay he suffered as a result of the discrimination
against him , plus interest at 6 percent per annum.
Dated By
CHAPIN & CHAPIN, INC.
(Employer)
(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 direct-
ed to the Board's Office , 1536 Federal Building, 1000 Liber-
ty Ave ., Pittsburgh , Pa. 15222 Telephone (412) 644-2977.