Alumatic Windows, Inc.

National Labor Relations Board - Board Decisions

Jun 20, 1961

131 N.L.R.B. 1210 (N.L.R.B. 1961)

1210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to support the necessary finding that any of these secondary employers are "engaged
in commerce or in an industry affecting commerce ." Although there may be merit
in General Counsel's contention, made in his oral argument , that the Board will
assert jurisdiction in cases upon proof that the primary employer is engaged in com-
merce , it is quite another matter to conclude , in the absence of either evidence or
allegation of commerce engagement by secondary employers , that there was coercion
or restrain of "any person engaged in commerce or in an industry affecting
commerce." 3
For the same reasons , plus the facts that neither Stout nor the picket made oral
or other effort to persuade any secondary employee to stop work , and conducted such
picketing at times only when employees of Kisner were on the job, the Trial Ex-
aminer must conclude that General Counsel has also failed to sustain his allegations
relating to violation of Section 8(b) (4) (i) 4'
It will therefore be recommended that the complaint be dismissed in its entirety.
[Recommendations omitted from publication.]
8 The Trial Examiner notes that in Gilmore Construction Company, 127 NLRB 541,
cited by General Counsel as authority governing this case , the Board specifically found
that both the primary and secondary employers were engaged in commerce within the
meaning of the Act.
4This section proscribes inducement of "any individual employed by any person engaged
in commerce or in an industry affecting commerce."
Atumatic Windows, Inc. and Millmen 's Local 1452, United
Brotherhood of Carpenters and Joiners of America, AFL-
CIO. Case No. 7-CA-2796. June 00, 1961
DECISION AND ORDER
On January 4,-1961, Trial Examiner George A. Downing issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor' practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
filed exceptions to the Intermediate Report and a supporting brief.
The Board has considered the Intermediate Report, the exceptions
and brief, and the entire record in the case, and finds merit in certain
of the Respondent's exceptions. Accordingly, the Board adopts the
findings and conclusions of the Trial Examiner only insofar as they
are consistent with the Decision herein.'
The Respondent fabricates and sells to consumers aluminum build-
ing products such as storm doors, windows, and porches. An essential
part of its operations consists in the installation of its products on
the premises of its customers. During 1959 it employed 12 installers
for such work.
In the summer of that year three of the Respondent' s installers,
among them Blasdhak, the alleged discriminatee, joined a newly or-
i Respondent contended that the installers , including Blaschak, the alleged discriminatee,
are independent contractors . We affirm the finding of the Trial Examiner that the in-
stallers are employees of the Respondent.
131 NLRB No. 152.
ALUMATIC WINDOWS, INC. 1211
ganized independent labor organization which later affiliated with the
Charging Party herein. On October 6,1959, the organization, referred
to herein as AIA, voted to strike those companies which employed its
members: The strike was scheduled for, and began on, October 12;
and ended several weeks later in accordance with a strike settlement
agreement by which the Respondent and other employers agreed to
reinstate the striking installers. The employers also agreed to recog-
nize AIA whenever it was able to establish in separate elections that it
represented a majority of the installers of each employer. AIA never
filed a petition to represent Respondents installers.,
Of the three installers who worked for Respondent and who partici-
pated in the strike, Dickerson worked several days after the strike
ended and then quit. The second, Searcy, was laid off December 29',
1959, and Blaschak was laid off January 4, 1960. Although the
charge listed these three as being discriminated against, the com-
plaint alleged only Blaschak's layoff or discharge as a violation of
Section 8(a) (3).
The Trial Examiner found that Blaschak was separated because
of his activities in AIA and his participation in the strike. In justi-
fication for its separation of Blaschak, the Respondent advanced cer-
tain reasons which the Trial Examiner rejected as pretexts. Re-
spondent justified Blaschak's layoff on the grounds that its business
was slackening, that there was insufficient work for all 12 installers
and that Blaschak (and Searcy) were laid off because they chose to
specialize in installing only certain products of the Respondent, and
their failure to learn other operations had made them less valuable
to it. The Trial Examiner referred to these explanations of the layoff
as shifting and inconsistent, and therefore, in rejecting Respondent's
explanations, inferred that the real reason for the discharge was Re-
spondent's antiunion animus. We do not consider the reasons set out
above as either implausible, inconsistent, or contradictory. The record
clearly establishes that December and January were slow months'
and that the installation of casement windows, the work for which
Blaschak was best suited and in which he preferred to specialize, was
diminishing. Searcy also preferred to specialize in the installation
of another item, and although it was not established that the use of
this item had markedly dropped off, the Respondent's explanation
that it preferred men who were capable of installing more than one of
its products, was a reasonable one.
We are satisfied that the reasons given by the Respondent for Blas-
chak's layoff were in fact compatible with its business prospects, and
do not reveal such inconsistencies as to make it likely that the Re-
spondent's motive was- other than the one it expressed.
2 The Respondent's busy season is from May to December . The Trial Examiner is. in
error in stating that the season was from December to May.
1212 DECISIONS OF NATIONAL- LABOR RELATIONS BOARD
The Trial Examiner also relied on certain items which occurred
prior to the 6-month period preceding the filing of the ' charge, as
indications that the Respondent was motivated in laying Blaschak off
by its resentment for his union or concerted activities. Thus, he
pointed out that Blaschak had joined AIA and had participated in
the October strike; that officials of Respondent had interrogated Blas-
chak, Searcy, and Dickerson concerning their union membership and
their strike intentions; had characterized the impending strike as an
"attack"; and had withdrawn work orders from Blaschak and refused
to assign him any new installation jobs between October 7, when it
learned of the threatened strike, and October 12, when the strike began.
The Trial Examiner also referred to a statement by Respondent to
Dickerson, after he had left Respondent's employ, to carry on his
union activities elsewhere. These items, coupled with the fact that
Blaschak's layoff resulted in the removal of the last of the three in-
stallers who participated in the strike, convinced the Trial Examiner
that Blaschak's layoff was in retaliation for his strike activities.
Although the Board may, not, in making unfair labor practice
findings, give independent and controlling weight to events occurring
more than 6 months before the filing of the operative charge, evi-
dence as to such events is nevertheless admissible and may be con-
sidered as background to explain ambiguous and equivocal conduct,
including supplying the real reason where an untruthful reason is
given for conduct within the 6-month period. Even if we assume
that the reasons given for Blaschak's layoff were equivocal or might
constitute a pretext, we are of the opinion that the Respondent's total
conduct does not reveal such hostility to union organization or to the
concerted activities engaged in by Blaschak as to make the Respond-
ent's motive for laying him off improper .3
As for the interrogation of the three participants in the AIA strike,
we do not believe that whatever resentment it reveals is attributable to
antiunion animus. Blaschak had been assigned work orders which
he might not have been able to complete if he went out on strike. In
attempting to learn whether Blaschak and the others intended to
strike, Respondent's concern that the strike should have as little effect
as possible on its installation work was justified and not improper.
Nor do we regard the characterization of the strike as an "attack" on
it, as a clear indication that its resentment would later bear fruit in
unlawful discrimination. Finally, the Trial Examiner's reliance, as
evidence of Respondent's antiunion hostility, that it told Dickerson to
take his union business elsewhere, must also be viewed in the context
8 Member Rodgers joins in the dismissal of the complaint on the ground that the record
clearly establishes that Blaschak was laid off for economic reasons. He does not rely
upon nor does he believe it necessary to consider any event occurring outside the 10(b)
period.
ALUMATIC WINDOWS, INC. 1213
that Dickerson was no longer employed by Respondent but had come
onto its premises to talk to Blaschak who was then at work.
The record also shows that Respondent has recognized and bar-
gained with another union for its production and maintenance em-
ployees for approximately 5 years without any showing of antiunion
animus, and that the Respondent, since the events described above,
has recognized a local of the Sheet Metal Workers International As-
sociation, upon satisfactory proof of majority status, as the bargaining
representative of its installers.
We are of the opinion that the Trial Examiner's inferences, based
on the reasons for Blaschak's discharge and on the factors which he
relied on for establishing animus against Blaschak's concerted activi-
ties, are not persuasive. We believe that the General Counsel has failed
to establish by a preponderance of the evidence that the Respondent
was motivated in laying off Blaschak by the fact that he had joined
AIA or had participated in its strike, and shall therefore dismiss the
complaint.
[The Board dismissed the complaint.]
MEMBER BROWN took no part in the consideration of the above
Decision and Order.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding, brought under Section 10(b) of the National Labor Relations
Act, as amended (61 Stat. 136; 73 Stat. 519), was heard in Detroit, Michigan, on
September 28 and 29, 1960, pursuant to due notice. The complaint, issued on
August 17, 1960, by the General Counsel of the National Labor Relations Board
and based on a charge duly filed and served, alleged that Respondent had engaged
in unfair labor practices proscribed by Section 8(a)(3) and (1) of the Act, by
laying off Louis Blaschak on or about January 4, 1960, and thereafter failing to
recall him because of his union membership and his participation in union or other
concerted activities for the purpose of collective bargaining or other mutual aid or
protection.
Respondent answered, denying the unfair labor practices as alleged. Admitting
that it had not used Blaschak as an installer since January 4, 1960, it averred that
he was not an employee but an independent contractor. Though not questioning
the status of the Charging Union as a labor organization, it denied that Aluminum
Installers Association (herein called AIA), which merged with Local 1452 in October
1959, was a labor organization within the meaning of the Act.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS
Respondent, a Michigan corporation, engaged at Detroit in the manufacture, sale,
and installation of aluminum windows, doors, and screens, is engaged in commerce
within the meaning of the Act by reason of its annual direct purchases exceeding
$50,000 from extrastate suppliers.
H. THE LABOR ORGANIZATIONS INVOLVED
I find on complaint allegations, undenied by Respondent, that Local 1452 is a
labor organization within the meaning of Section 2(5) of the Act.
Respondent's denial that AIA was a labor organization is based mainly on (1)
the contention that the installers were independent. contractors, and (2) upon the
1214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
following language contained in a notice calling the meeting at which AIA was
organized:
The purpose of this meeting is to form an independent association for in-
stallers; to raise our standard of living as well as our pay checks.
This is not a union meeting. It will be a meeting of installers to form an
association, with no affiliation with any existing labor union.
The first contention is rejected for reasons which are fully stated in Section B,
infra. As to the second, Merle Scriver (organizer of AIA and drafter of the above
notice) testified that AIA was organized by the installers in the aluminum industry
and that its primary function was to negotiate with the manufacturers concerning
wages, hours, working conditions, and grievances of the installers. He explained
the avoidance of the term "union" in the above notice as follows:
Well, at the time that we were organizing we did have one group of installers
in the city that were organized into a union. This union had not done justice
to the membership. Therefore the name-the word "Union" was more or less
put aside, and the Association-the name of "Association" was used in place
of that simply because if the fellows had any inkling or suspicion that they
were going to belong to the type of union that was representing some of the
installers there would be no installers to show up for our meetings. It was
simply to show we had no tie-in with any major labor organization; we wanted
to form our own independent labor organization.
I conclude and find on the basis of the entire evidence that AIA was a labor
organization within the meaning of the Act.
M. THE UNFAIR LABOR PRACTICES
A. The issues
There are two issues in this case: (1) Whether Louis Blaschak was an employee
or an independent contractor; and (2) if an employee, did Respondent lay him off
because of his membership in and activities on behalf of AIA and of Local 1452.1
B. The employee-employer contractor issue
As is commonly the case on issues concerning employer-employee independent
contractor relationships, the evidence here presented a host of details bearing upon
the question, many leaning in the direction of an employer-employee relationship
and others leaning toward an independent contractor status. And though no single
factor is conclusive, and the determination must be based on all the factors in the
case, yet the predominance of the more significant factors lean heavily in the direc-
tion of an employee status. The following summary is not a complete cataloguing
of all material details but only those of more significance and of greater weight,
though all have been taken into consideration in making the ultimate determination.
Respondent is engaged in the manufacture and sale of aluminum storm windows,
doors, and porches; and in the Detroit area an integral part of its business is the
installation of its products for the ultimate customer. Respondent employed some
15 to 20 production employees at times material hereto, and down to December
1959 it used the services of 12 installers, several of whom had been with Respondent
for many years and whose average employment exceeded 7 years. Because of their
long experience and the nature of their work, they became skilled workmen, whose
expertness was increased in some instances by specialization on certain products
(e.g., casement windows, as in Blaschak's case). Respondent has no written con-
tracts with its installers, nor for that matter, any oral contracts.
The installers furnish their own trucks and the tools and equipment necessary to
install Respondent's products at the premises of the customer, though Respondent
furnishes such items as glue , paper, and caulking. The installers customarily report
around 8 a.m., receive their work assignments, and pick up the products which are
to be installed. Jobs are assigned in the form of work orders which are distributed
by Respondent's dispatcher through a slot board which enables the installers to
check on the fairness of the distribution. The orders contain the customer's name
and address, but no instructions as to how the work is to be performed, and, except
i Though the charge claimed discrimination also against Barnie Searcy and H S. Dicker-
son, the complaint did not include them. However, the issue as to motivation in Blaschak's
case made relevant certain evidence concerning Respondent's treatment of them, since they
and Blaschak were the only 3 of Respondent 's 13 installers who joined AIA and Local 1452
and who participated in the strike.
ALUMATIC WINDOWS, INC. 1215
on "rush" or "hot" jobs, they specify no time for completion. Most of the jobs can
be completed within the course of a normal day's work.
The installers are not required to report at any given time or to work any assigned
schedule of hours and their work is not supervised during the actual course of the
installation, though it is sometimes inspected after completion. In the case of jobs
which run more than a day, the installers do not generally report at the plant until
completion of the work. Some large jobs are assigned to two or more installers
jointly. On some jobs, and particularly during the winter season, the installers per-
form some of the preparatory operations at Respondent's plant, e.g., the taping of
windows.
Installers are paid weekly for their completed work on a piecework basis under
a schedule of rates which are set up by Respondent unilaterally, and additional
allowances are made for distances beyond 25 miles. In past years, as in 1958,
Respondent has also paid Christmas bonuses to some of the installers, the amounts
ranging in individual cases from $25 to $100. Respondent's price to the customer
includes the services of the installer, who buys nothing from Respondent, sells noth-
ing to the customer, and looks only to Respondent for payment of his compensation.
Though the installers are required to make service calls for the purpose of adjust-
ing or correcting faulty installations, they are sometimes given ,an allowance if the
defect relates to something which was not the fault of the installer.
Respondent carries a blanket liability insurance policy which covers any damage
to person or property caused by an installer while he is on a customer's property
engaged in making an installation, and against liability resulting from an installer's
negligence in the operation of his truck while on company business.
Neither Respondent nor the installers keep a record of the hours worked, and
the installers are free to take off short periods of time for personal reasons without
notice to Respondent. However, they generally call in if they are going to be off
for a day or more, and when they fail to do so, Respondent usually calls to check
on their whereabouts. Indeed, if an installer fails to report on a day when the dis-
patcher has work to be assigned him, the dispatcher attempts to contact the installer,
and if unsuccessful turns the matter over to Respondent's executives to follow up.
The installers also notify Respondent of contemplated vacations, which they
normally take during the slack season. On one occasion a request for a vacation
was refused by Respondent because of the press of work, and on another an installer
was discharged by Respondent's superintendent for having taken a week off during
the busy season. The installer was later rehired by Respondent's President Golden
after a reprimand.
During the busy season (December to May) the installers do not work for other
employers, for Respondent expects their full time and services, and the installers
in turn feel obligated to Respondent. Ardell Cato explained, for example, that he
worked exclusively for Respondent during the rush season because he felt obligated
to it first and that it was his duty to get out their work before any other. On man-
agement's side, President Golden testified that when he learned that Dickerson
was working for a competitor during the busy season, "I felt bad . . . I called him
and asked him why he didn't come to work . having a man do our work for so
many years and the good relationship that existed and at the time when I needed
the most help . then he was doing things for a competitor instead of for us."
During the slack season, however, the installers frequently work for other employ-
ers, including Respondent's competitors, and on some occasions installers have
taken layoffs from Respondent but have continued to work in effect as helpers with
other installers, who split with them the compensation received from Respondent.
Some of the installers have on occasion used helpers (sometimes members of
their families), usually with Respondent's knowledge, and in such cases the installers
pay the helpers out of their own earnings.
Respondent makes deductions from the gross compensation of the installers for
withholding taxes and social security, as well as for hospitalization and the United
Foundation, and Respondent contributes in addition unemployment compensation
and workmen's compensation. On August 14, 1959, the Commissioner of Internal
Revenue issued a formal ruling concerning the employment status of installer
Herbert Dickerson, which in pertinent portion was as follows:
Considering all of the information furnished, it is necessary to conclude that an
employer-employee relationship exists between Mr. Dickerson and Alumatic
Windows Inc. It appears that Mr. Dickerson is not engaged in an independent
enterprise requiring capital outlay or the assumption of business risks. He
performs personal services which are both necessary and incident to the
business conducted by the corporation. Apparently he is a skilled workman
and does not require constant oversight as to the details of performance; he
1216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
could be discharged at any time, and the corporation retains such control over
him as is necessary and practicable for the satisfactory conduct of its business.
Where the right of control exists, it is immaterial whether that right is
exercised... .
The present record showed that the chief item requiring capital outlay was the
installer's truck, and the amount invested for that and for the necessary tools and
equipment vaned widely according to whether the installer specialized only on a
particular product or was equipped to handle all or most of Respondent' s lines.
Blaschak, for example, purchased a truck in October 1959 for $1,750, plus a trade-in
of an old truck, and he estimated that he had $200 invested in tools, ladders, and
other equipment. Searcy's truck, purchased in 1954, cost $1,400, plus a trade-in.
Merle Schultz' investment ran from $250 to $600 for his truck and from $700 to
$800 for his tools. Bill Baker, however, estimated his total investment at $3,500,
including $1,800 for a new truck. Baker's estimate seemed plainly exaggerated in
comparison with the others, though at least some of the disparity was accounted for
by the fact that Baker was equipped to handle all types of Respondent's products.
Installers generally do not have their own names on their trucks, but some of
them carry signs, supplied by Respondent, which contain Respondent' s name, tele-
phone number, and a picture of its product.
Respondent's supervisors hold meetings with installers alone as well as with
installers and production employees together. Notice of the meetings is given by
announcement posted on the bulletin board in the plant. Vice President Nida began
holding, in May 1959, more or less regular monthly meetings with the installers,
during which there was discussion of work and other problems, as well as of the
gripes or complaints of the installers . Those meetings led to the adoption of certain
rules, some of which were initiated by Respondent and some by the installers.
Most of the rules were codified in the minutes of a meeting held with the installers
on September 24, 1959. Aside from specifying a "chain of authority" among
Respondent's supervisors, the more significant rules may be summarized as follows:
Under no circumstances could an installer refuse a service assignment. Seven
working days were allowed to complete such an assignment. Installers could not
refuse to complete a partial installation. Installers could not refuse any (work)
orders issued by the dispatcher, and any complaints concerning unfair distribution
of work were to be taken up with Respondent's executives. The drinking of alco-
holic beverages was forbidden under penalty of prompt dismissal for the first offense.
Installers were required to furnish correct measurements where the original measure-
ments were wrong. Installers were instructed to eliminate conversations with and
advice to customers, and were required to be courteous to customers as "a reflection
of company policy." A provision for dispatching through one door was explained
as necessary to eliminate contact with other company employees.
Further evidence that Respondent itself recognized the relationship to be
employer-employee was the following:
-1. The slips issued to Baschak and Searcy in December informed them that they
were being given a temporary layoff and referred to the possibility of their being
recalled.
2. In offering Dickerson reinstatement after the strike settlement in November,
President Golden informed him that unless he reported by a given time Respondent
would take him "off the payroll."
3. In explaining his reasons for ordering Dickerson out of the shop when he
was talking with Blaschak on or about November 23, Golden testified that he felt
that Dickerson was interfering with Blaschak "who was performing a duty" (i.e.,
taping windows), and that he objected to Dickerson bothering a man who was
working.
4. Scriver testified without denial that during the negotiations between Carpenters
and the Manufacturers Association, Victor R. McFadden, Respondent' s general
manager, stated that he recognized that in the aluminum industry there were some
installers who should be considered employees and others who should be considered
subcontractors, but that he realized that Alumatic's installers were employees who
received employee coverages and everything employees are entitled to.
5. In August 1960, Respondent entered into a collective-bargaining agreement
covering installers with a labor organization which traditionally represents
employees.
Concluding Findings
The variety of factual combinations which present themselves in the field of
employer-employee independent contractor relationships approached the myriad;
the problem of differentiating between them as long given much difficulty United
ALUMATIC WINDOWS, INC . 1217
States v. Silk, 331 U.S. 704, 713, and has resulted in much confusion in the decided
cases. In most of them, as here, the facts reflected many indicia of both an
employer-employee relationship and of an independent contractor status, and the
problem became one of determining whether the factors which were indicative of
one status outweighed those which indicated the other, cf. Malone Freight Lines,
Inc., 107 NLRB 501, 503, with due recognition that some factors possess more
significance and weigh more heavily in the outcome. Cf. Eldon Miller, Inc., 107
NLRB 557, 559.
The total situation is determinative of the question, as the Supreme Court held in
United States v. Silk, supra. "[The agency] and the courts will find that degrees of
control, opportunities for profit or loss, investment in facilities, permanency of
relation and skill required . are important for decision. No one is controlling
nor is the list complete." Id. p. 716. Though material, it is not decisive, for
example, that workmen's compensation is carried, or social security or income taxes
withheld, American Broadcasting Company, et al., 117 NLRB 13, 18; Serv-Us
Bakers of Oklahoma, 121 NLRB 84, 87, at footnote 3; nor is it decisive that the
installers have no quotas, set their own hours of work, sometimes hire helpers,
and are free in slack seasons to work for other employers. Cf. United Insurance
Company, 122 NLRB 911, at 928. Neither is the lack of supervision significant,
being offset by the fact that the installers are skilled workmen, with many years of
experience, and that daily oversight is plainly unnecessary. Cf. Southern Shellfish
Co., Inc., 95 NLRB 957, 962-963.
Though the investment in truck and tools is substantial , it is less, with one excep-
tion, than the cost of the average family car. In any case, the installers are plainly
not entrepreneurs; they have no business office, do not hold themselves out to the
public, buy and sell nothing , assume no risks, and have no opportunity for profit from
"sound management ." United States v. Silk, supra, at 719.
The factors of the greatest weight here are Respondent's payment of the principal
costs customarily incident to an employment status, the permanency of the relation,
and Respondent's control over the installers and its treatment of them as its em-
ployees. On the latter score, what speaks most strongly were Respondent's actions
in making layoffs and discharges, in refusing time off, in refusing to permit work
for other employers during busy seasons, and in adopting and requiring adherence
to a detailed set of rules governing the conduct of the installers. As the Board
has held, no other single factor is as conclusive in showing that the relationship is
not that of an independent contractor as that the employer has the right to terminate
the particular service whenever he chooses. Southern Shellfish Co., Inc., supra.
Though counsel have been unable to cite any Board ruling on the status of in-
stallers of the present type, the absence of such precedent does not substantially
heighten the decisional hurdle, because the general principles are well established
and because each case in the present field must not only stand on its own facts but
on all its own facts. Such precedents as exist outside of Board law underline the
soundness of that proposition. Thus, by odd coincidence, three cases cited by coun-
sel which involved installers of the present type were decided by the same judge of
the same United States district court, who found an independent contractor relation-
ship in two of the cases and an employee relationship in the other.2 Comparison
of the three cases shows that all of them closely resemble the present one on many
relevant features, but that the closest resemblance is found in the Ben case, supra,
which was affirmed on appeal at 241 F. 2d 127 (C.A. 2). There Judge Brennan
distinguished his earlier holdings mainly on the point that the right of control was
more strongly evidenced in Ben, referring particularly to the following facts:
The company's right to discontinue the applicator's services because of his personal
actions. Refusal of a job meant in effect the cessation of further opportunities for
employment .3 Loyalty to the Company was required. Long-continued employment
over a period of years, coupled with the absence of evidence that applicators offered
their services to the public. Freedom of control (i.e., lack of supervision) lost
2 Salver d/b/a Morris Construction Co. v U.S, 131 F Supp 209; Farm if Home
Modernazation Corp v. U.S, 138 F. Supp 423; Leslie R. Ben v. US., 139 U.S 883, all
from the northern district of New York and all decided by Judge Brennan.
Pursuit of those cases through the citator leads to a number of other cases which in-
volved applicators or installers of roofing, siding, or other home improvements, but the
results there also fell on both sides, depending on the "peculiar facts" of each case. See,
e.g, Thor Co v U.S., 173 F. Supp. 65, at 69, and cases there cited
3 Nida testified here that if an installer refused to make a service call he would be
issued no other work orders until the service call was made.
599198-62--vol. 131-78
1218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
significance because the skill of the workers was relied on. Assertion of the broad
right of discharge, recognized by the workers, was indicative of the right of control.
I conclude and find on the basis of the entire evidence that in the present case the
factors which are indicative of an employer-employee relationship heavily outweigh
those which are suggestive of an independent contractor status, and that Louis
Blaschak was, therefore, an employee within the meaning of the Act.
C. The layoff of Louis Blaschak
1. Union activities; the strike and the settlement
Much of the evidence bearing upon discriminatory motivation concerned Respond-
ent's reaction to the formation of AIA and to the strike which it called.4 AIA was
formed in the early fall of 1959 for the purpose of representing installers in nego-
tiations with the Manufacturers Association, of which Respondent was a member.
After a request for recognition was refused by the Association, AIA held a meeting
of installers on October 7, at which it was voted to strike the industry for recogni-
tion on October 12. The strike lasted approximately 6 weeks, but in the meantime,
around October 20, AIA merged with Local 1452, which took over the strike and
the negotiations.
The negotiations culminated on November 13 in reaching an agreement, accept-
ance of which by the manufacturers was to be on an individual basis and to be con-
tingent upon the Union winning an election at the individual plants. Though the
Union never called for an election at Respondent's plant, the strike settlement agree-
ment, which was on an industrywide basis, applied to and was complied with by
Respondent, i.e., the withdrawal of all pickets by the Union and the reinstatement
of all strikers by the manufacturers.
Louis Blaschak, Barney Searcy, and Herbert S. Dickerson were the only three of
Respondent's installers who joined AIA or Local 1452, who attended the strike
call meeting of October 7, and who participated in the strike. On the morning
following the October 7 meeting, they were called into Nida's office (Blaschak and
Searcy together; Dickerson separately) and questioned by Golden, Nida, and Mc-
Fadden. Golden asked them if they had joined the Association and they acknow-
ledged that they had. Golden asked if they were going to strike, and Searcy replied
that so far as he knew they would strike on Monday. Golden informed them that
there would be no more work until things were settled. To Dickerson, Golden
added, "You have planned your little attack. Go ahead and carry through"
Blaschak, who had work which was to be performed that day, was later told by
McFadden to turn in the job, as well as three service calls, and that Respondent
would have someone else take care of them. None of the three received other
assignments prior to the beginning of the strike on October 12.
Golden and Nida testified for Respondent, but McFadden was not called either
concerning the conferences with the installers or in denial of Blaschak's testimony.
Golden and Nida admitted that they called in the three installers and questioned
them about joining AIA and about the impending strike and that they assigned
them no further work. Golden testified he understood the three men were to finish
their incomplete jobs but were to receive no further assignments . Nida testified that
Respondent was concerned about whether the installers would be able to finish the
jobs which they had on their trucks, and that because Blaschak would give no
assurance on that score, his jobs were taken from him. On cross-examination, how-
ever, Nida testified that Blaschak stated "he thought he could finish what he had on
his truck," and in his prior affidavit given during the Board's investigation, Nida
stated that, "[Blaschak] said he had a couple of jobs which he intended to finish."
Nida admitted that he was not present during the later conversation between
Blaschak and McFadden, concerning which Blaschak's testimony stands undenied.
Under the foregoing circumstances, I credit the mutually corroborative testimony
of Blaschak, Searcy, and Dickerson concerning the conferences on October 8.
Pursuant to the strike-settlement agreement, Respondent reinstated Blaschak and
Searcy in November. Dickerson refused an offer of reinstatement because Respond-
ent would not guarantee him full-time work. Dickerson testified that he later visit-
ed the plant on or about November 23, and that he was ordered by Golden to leave.
As he spoke to Blaschak on the way out, Golden approached and again ordered
4Though under Section 10(b) no findings of unfair labor practices can be made on
conduct occurring more than 6 months prior to the filing of a charge, yet evidence of
such prior conduct is admissible "if it tends reasonably to show the purpose and character
of the particular transactions under scrutiny." Federal Trade Commission v Cement
Institute, 333 U.S. 683, 705; McJunkin Corporation, 128 NLRB 522, at footnote 6.
ALUMATIC WINDOWS, INC. 1219
Dickerson to leave and to "carry [his] union.activities somewhere else." Blaschak
corroborated that testimony.
Golden denied that he referred to union activities, testifying that he told Dickerson
that if he had any private business, to transact it outside. Kroviak testified on direct
examination to similar effect, but on cross-examination testified that Golden told
Dickerson to carry his activities on outside the shop.
All the circumstances persuade me to credit the mutually corroborative testimony
of Dickerson and Blaschak (i.e., Respondent's attitude toward the organization of
AIA and to the calling of the strike, its treatment of Blaschak, Searcy, and Dicker-
son following the strike call, and Golden's expression of resentment over the
"attack").
Under date of December 28, Respondent issued to Blaschak and Searcy layoff slips
as follows:
We regret to inform you that due to un-controllable circumstances we are
forced to give you a temporary lay-off.
Please be sure that we have your correct phone number so that we may
contact you as soon as conditions improve.
This lay-off is only temporary, but we cannot say exactly when you will be
re-called.
Blaschak's slip was marked as effective on January 4, and Searcy's on December
29. Neither had been laid off before during their employment with Respondent, and
at least four of the nine installers who were retained had shorter periods of service.
Both denied that anything was said to them about the kind of work they were doing
or about other operations which they did not do. Kroviak, who delivered the slips,
testified that he told them there was no work for them and that there was nothing he
could do. He testified further than though there was work available on Tiara win-
dows and on doors and porches, neither man could handle those jobs.
Respondent had for some months urged the installers to learn to install all types
of its products, though Nida admitted that compliance by the installers was to be
entirely voluntary on their part. Indeed, one of the rules which was incorporated
in the minutes of the September 24 meeting provided:
Installers to learn how to handle installations of all our products. This will
be done on a voluntary basis for those installers who prefer it that way.
Respondent offered evidence that for some time its casement window business
had diminished in volume while its other business had become more and more di-
versified. For that reason, Golden testified, installers who specialized only in cer-
tain fields were least valuable to the Company, such as Blaschak, who generally did
only casements, and Searcy, who generally did Vel Glides. Nida explained Blas-
chak's selection on a similar basis, i.e., that because Blaschak installed only case-
ment windows (with some exceptions), he was less valuable to Respondent and was
laid off for that reason and because of lack of business. Nida conceded that re-
tention of Blaschak would not have added to Respondent's cost but would have
resulted only in less work to be divided among all the installers. Indeed, Golden
at one point stated his -understanding of the basis of the layoff as follows:
I knew that we didn't have any work for the number of men that we have got
and we would have to make some kind of adjustment, or lay off there in order
to allow some of the men to be able to make a living rather than none of them
being able to make a living.
The latter explanation accorded exactly with that which Merle Scriver testified
(in rebuttal) was given to him by McFadden and Golden when he was negotiating
with them for the reinstatement of the installers after the layoff, i.e., that there was
not enough work to support 12 installers. Striver testified that neither McFadden
or Golden raised any question concerning the fact that the three men were not
capable of performing all operations, claiming only that there was not enough work
to warrant recalling them .5
Bearing also on motivation was Nida's testimony on cross-examination that in
discussing the layoff with Golden, they decided to let three installers go, the third
one being Dickerson. Reminded that Dickerson was terminated in November, Nida
denied that he had meant to count Dickerson, denied they ever decided on three,
and explained that though they originally "thought" in terms of three, they "got by"
with two.
6 As McFadden did not testify and as Golden could not recall the conversation , Scriver's
testimony is credited
1220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Concluding findings
It is the General Counsel's theory and contention that Respondent laid off Blas-
chak because of its resentment of the activities of AIA and Local 1452, including
the strike, and because of Blaschak's participation in those activities. The credited
testimony summarized above plainly established Respondent's resentment of the
union activity and of the fact that three of its installers had joined the Union and
intended to participate in the strike. The interrogation of the three men concerning
their membership and their strike intentions , Golden's characterization of their
action as an "attack," the taking away from Blaschak of work orders previously as-
signed, and the refusal to assign other jobs, were clearly indicative of Respondent's
resentment and animus.
Furthermore, Respondent's resentment was shown to continue beyond the strike
and the strike settlement agreement, as evidenced by Golden's summary order to
Dickerson on November 23 to leave the plant and to carry on his union activities
elsewhere. When the foregoing background is coupled with the fact that Respond-
ent framed its layoff action in December to include only the two remaining installers
who were union members and who had participated in the strike, the inference
is plainly warranted that Respondent made the layoff to eliminate the employees
who alone had supported the Union.6
It being concluded, therefore, that the General Counsel made out a prima facie
case that Respondent was discriminatorily motivated in laying of Blaschak, we
turn to the question whether Respondent's evidence is sufficient to overcome that
case.
Analysis of its evidence and its explanation discloses however, that Respondent
assigned shifting and inconsistent reasons for its action?
Though the layoff slip assigned business conditions and though Kroviak's ex-
planation to the men was in accord (i.e., that there was no work), both Nida and
Golden testified that Blaschak and Searcy were laid off because their specialization
in certain lines and their failure to learn other operations had made them less
valuable to Respondent. However, Respondent did not assign the latter reason to
the men at any time, nor did Golden and McFadden assign it in their conversations
with Scriver after the layoff. The circumstances thus plainly indicate that the reason
was one which occurred to Respondent after the layoff 8 and one, presumably, which
Respondent considered necessary to support its action.
Furthermore, there was not only evidence that Respondent retained other in-
stallers who specialized in certain operations, but that Golden assigned elsewhere
still another reason, i.e., that there was not enough work for 12 installers and that
the layoff was made in order to enable those who remained to make a living. In-
deed, the latter reason coincided with the one which he and McFadden assigned to
Scriver in January and February. And though there was evidence that layoffs were
occasionally made during slack seasons, the evidence also showed that they were
usually voluntary on the part of the installers. Kroviak, for example, could recall
no earlier cases where Respondent had given layoff slips, though some installers
took voluntary layoffs, and testifying with specific reference to installer Sager,
Kroviak stated that "he took time off of his own volition . . . he does that regu-
larly when work is slack like it was there."
When the foregoing matters are considered in the light of Nida's "Freudian"
slip on cross-examination in naming Dickerson as the third of three installers whom
he intended to eliminate, it is plain that Respondent's evidence itself lent further
support to the inference 9 that Respondent's real reason in laying off Blaschak was
to rid the plant of the last of the union supporters.
6 Nida's testimony on cross -examination that Respondent in fact planned to lay off
three installers and that Dickerson was the third one was further support for that in-
ference, despite his attempt to retract and to explain away that testimony.
7 The giving of implausible, inconsistent, or contradictory explanations for a discharge
may be considered in determining the real motive ; it is a circumstance indicative of
antiunion motivation. N.L.R.B. v. Condenser Corporation of America, 128 F. 2d 67, 75
(C A. 3) ; N L R B. v. C. W. Radcliffe and W. W. Mancke d/b/a Homedale Tractor &
Equipment Company, 211 F. 2d 309, 314 (C.A. 9).
sI.e, "[T]he explanation had been contrived after the controversy had arisen"
N.L R B. v. E. C. Brown Co. and Production Line Manufacturers, Inc., 184 F. 2d 829,
832 (C.A. 2).
e Findings of a discriminatory motivation must frequently rest on inference and on
circumstantial evidence, for as the Board and the courts recognize, direct proof of a
discriminatory motivation is rarely obtainable. N.L R.B. v. Southland Manufacturing,
Company, 201 F. 2d 244 , 245-246 ( CA. 4), and cases there cited.
INTERSTATE HOSTS, INC . 1221
The foregoing conclusions are reached with full recognition that any of the rea-
sons which Respondent assigned would have justified the layoff (or, indeed, any
other reason save that of discrimination because of union or other concerted activi-
ties), provided, of course, that the reason assigned was the real reason for Respond-
ent's action. But a discharge ostensibly for cause must, in order to be protected
be in reality a discharge for cause; a trumped up or synthetic cause cannot protect
an employer against a discharge where the real or moving cause is antiunion dis-
crimination . N.L.R.B. v. C. & J. Camp, Inc., et al. d/b/a Kibler-Camp Phosphate
Enterprise, 216 F. 2d 113, 115 (C.A. 5), enfg. 107 NLRB 226.
I find here, an the basis of the entire evidence, that Respondent's real reason for
laying off Blaschak was to rid itself of the last remaining employee who had sup-
-ported AIA and Local 1452 and who had participated in the strike, and that it
thereby engaged in discrimination proscribed by Section 8(a) (3) of the Act.
IV. THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices, I
.shall recommend that it cease and desist therefrom and that it take certain affirma-
tive action of the type conventionally ordered in such cases, which I find necessary
to remedy and to remove the effect of the unfair labor practices and to effectuate
the policies of the Act. For reasons which are stated in Consolidated Industries,
Inc., 108 NLRB, 60, 61, and cases there cited, I shall recommend a broad cease-
and-desist order.
Upon the basis of the above findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. AIA and Local 1452 are labor organizations within the meaning of Section
.2 (5) of the Act.
2. By laying off Louis Blasohak on January.4, 1960, and by thereafter failing to
recall him, Respondent engaged in discrimination to discourage membership in
Local 1452, and thereby engaged in unfair labor practices proscribed by Section
8(a)(3) and (1) of the Act.
3. The aforesaid unfair labor practices having occurred in connection with the
operations of Respondent's business as set forth in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States, and substantially affect commerce within the meaning of Section 2(6) and
(7) of the Act.
[Recommendations omitted from publication.]
Interstate Hosts, Inc. and Hotel and Restaurant Employees and
Bartenders International Union , AFL-CIO, Petitioner
Interstate Hosts , Inc. and Coye Conley, Eddie Simmons, James
Taylor, Grace Thorpe, Willa May Johnson , Clara Whitley,
Frank Green , Myrtis Green, O'Neal Tarver, Lenore Kelly,
Doily van Zandt, Nancy Kindig, and Mary E. Hager. Cases
Nos. 13-RC-6581, 13-CA-3568-2, 13-CA-3568-5, 13-CA-3568-6,
13-CA-3568-7,13-CA-3568-8,13-CA-3568-9,13-CA-3568-10, 13-
'CA-3568-11,13-CA-3568-12,13-CA-3568-13, 13-CA-3568-14,13-
CA-3568-15,13-CA-3568-17,13-CA-3568-18, and 13-CA-3568-19.
June 20, 1961
SUPPLEMENTAL DECISION AND ORDER
DENYING MOTION
Pursuant to a Decision and Direction of Election dated Novem-
ber 12, 1959,1 an election by secret ballot was conducted on Decem-
1125 NLRB 101.
131 NLRB No. 153.