A & A Tile Co.

National Labor Relations Board - Board Decisions

Feb 20, 1970

181 N.L.R.B. 237 (N.L.R.B. 1970)

A & A TILE COMPANY 237
Charles B. Harris and Al Pense, d/b/a A & A Tile
Company and Linoleum and Carpet Layers Local
Union 1236, International Brotherhood of Painters,
Decorators and Paperhangers of America,
AFL-CIO. Case 36-CA-1831
February 20, 1970
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
Company, herein called the Respondents.' The amended
complaint alleges violations of Sections 8(a)(5) and (1)
and 2(6) and (7) of the Labor Management Relations Act,
as amended, 69 Stat. 136, herein called the Act. The
parties, except Charging Party, waived oral argument,
briefs filed by the General Counsel and Respondent and
the oral argument of Charging Party have been carefully
considered.
Upon the entire record, and from my observation of the
witnesses, I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENTS
On November 21, 1969, Trial Examiner Leo F.
Lightner issued his Decision in the above-entitled
proceeding, finding that Respondents had not
engaged in certain alleged unfair labor practices and
recommending that the complaint be dismissed in its
entirety, as set forth in the attached Trial
Examiner's Decision. Thereafter, the General
Counsel and the Charging Party filed exceptions to
the Trial Examiner's Decision and supporting briefs.
Respondents filed cross-exceptions to the Trial
Examiner'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,
cross-exceptions, briefs, and the entire record in this
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 hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that the complaint herein be, and it hereby is,
dismissed in its entirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
LEO F. LIGHTNER, Trial Examiner: This proceeding was
heard before me in Portland, Oregon, on September 16
and October 1, 1969, on the complaint of General
Counsel, as amended, and the answer, as amended, of
Charles B. Harris and Al Pense, d/b/a A & A Tile
'We find it unnecessary to pass on the issues raised by Respondents'
cross-exceptions to the Trial Examiner's Decision as we rind that, in any
event , the evidence faded to establish that Respondents violated the Act, as
alleged For the same reason , we need not pass on the correctness of the
Trial Examiner 's findings with regard to Respondents ' alleged fraudulent
concealment of its actions.
Respondents are and at all times material herein have
operated as a partnership,' engaged in the installation of
carpet , linoleum , soft tile , and resilient floor covering, in
the Portland , Oregon , area . During the year immediately
preceding the issuance of the complaint , a representative
period , Respondent purchased in excess of $50,000 worth
of materials from suppliers in the State of Oregon who
had received said materials directly from outside the State
of Oregon . The complaint alleges , the answer, as
amended , admits, and I find , Respondent is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
Linoleum and Carpet Layers Local Union 1236,
International Brotherhood of Painters , Decorators and
Paperhangers of America, AFL-CIO, herein referred to as
the Union, is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issue
The principle issue raised by the pleadings and litigated
at the hearing is whether Respondents, without notice to
or consent by the Union, in violation of an existing
collective-bargaining agreement, paid its employees on a
piece rate basis.3 The maintenance of the piece rate basis,
under the circumstances, is asserted to constitute a failure
and refusal to bargain with the Union, and an unfair labor
practice within the meaning of Section 8(a)(5) and to
constitute interference, restraint, and coercion in
contravention of Section 8(a)(1) of the Act. In addition, it
is alleged that Respondents deliberately concealed the
institution and continuation of the piecework practice
'The caption of this case and the identity of the Respondents,
inadequately set forth in the complaint , was amended at the outset of the
hearing herein, as further explicated infra in the next subsection
A charge herein was filed on December 12, 1968 A complaint was
issued on July 24 , 1969, and amended during the hearing herein
'For approximately 4 years, prior to January 1968, A & A Tile
Company was a partnership owned and operated by Charles B. Harris and
Charles Claflin In January 1968, the partnership was expanded by the
addition of Al Pense. In March 1969 , Charles Claflm withdrew from the
partnership , and since that time, including the time of the issuance of the
complaint , it has been owned and operated by Harris and Pense,
Respondents herein
'Since the charge herein was filed on December 12, 1968 , the 10(b)
period , of limitation , commenced June 13 , 1968, and earlier events are
considered only as background , for the purpose of casting light on the
events within said period Local Lodge No 1424 (Bryan Manufacturing
Co ) v. N L R B, 362 U S 411, 416.
181 NLRB No. 37
238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from the Union, and this is alleged as an additional
violation of Section 8(a)(5) and (1) of the Act.
Respondents deny the commission of any unfair labor
practices. As affirmative defenses Respondents assert: (a)
the Board is without jurisdiction over the interested
parties; (b) the collective bargaining agreement is illegal
and unenforceable; and (c) the conduct complained of
occurred beyond the time limitation of Section 10(b).
B. Background
There is no dispute as to the background facts herein
set forth.
On April 15, 1966, the Respondent partnership as it
existed at that time, entered into a collective-bargaining
agreement with the Union, identified herein as an
agreement between the Union and the Associated Floor
Covering Contractors with an effective date of April 1.
The agreement, by its terms remained in effect until
March 31, 1969, and was succeeded by a new agreement,
with some of the modifications resulting set forth infra
The provision, of the 1966 agreement, with which we
are herein particularly concerned appears as article VI -
Wages - section 4, in toto, which provides:
Compensation for all work performed shall be
computed on an hourly basis. Work shall not, under
any circumstances, be done by piece work, contract, nor
by direct bargaining between the Employer and the
employees.
In view of some of the contentions advanced herein the
following provision of the agreement, which appears as
section 6, under the same article, is set forth in toto
The Employers agree to state on all paycheck stubs or
statements each pay day an itemized account of the
employee's earnings and deductions, which will include
straight time hours worked and overtime hours worked,
the hourly rate of pay, mileage and other expenses, and
any and all deductions from the gross earnings made
for any reason covered by such pay check.
Article VII contains the overtime provision and
provides for time and a half for all overtime, except where
double time is provided for. Double time applies for all
work on Sundays and holidays, and all work performed
between the hours of 12 midnight and 8 a.m., and for all
consecutive hours of work where the work commences
between 12 midnight and 2 a.m.
Article VIII provides the normal work day is between
the hours 8 a.m. and 4:30 p.m., it includes a half hour
unpaid lunch period. Thus, all other hours are overtime.
Article X provides for the payment of various
contributions by each employer, to the First National
Bank of Oregon, as trustee for specified trusts, with copies
of the monthly report on such contributions supplied to
the Union. To the extent such reports have application
herein, only the provisions which were effective on or after
April 1, 1968, are set forth. There is a Resilient Floor
Covering Pension Trust Fund computed on a contribution
of 15 cents for each hour worked, as reported for each
employee. A Floor Covering Union and Industry Welfare
Trust provides for a similar payment in the amount of 20
The complaint alleges that Respondents unilaterally inaugurated a
change in its method of compensation from an hourly rate to piece work in
the summer of 1966 Since this event is alleged to have occurred
approximately 2 1/2 years prior to the riling of the charge, the complaint
is related to the matter of continuance of an alleged practice as
distinguished from inauguration
cents for each hour A Floor Covering Industry Joint
Apprenticeship and Journeyman Training Fund requires a
contribution of 2 cents for each hour. A contribution for
vacation and holiday pay is computed on the basis of a
percentage of gross monthly earnings scaled upward
according to years of service. An Industry Fund provides
for a contribution of 2 cents per hour. There is a
presumption that each employee worked 50 hours in any
week in which the Employer fails to maintain accurate
time records.
Effective April 1, 1969, the foregoing agreement was
replaced by a new agreement, with a provision for
termination on March 31, 1972, unless extended as therein
provided.
The provisions of article VII, Wages replaced article VI
in the earlier agreement. The provisions of section 4, set
forth supra, have been deleted. The reason for this
deletion does not appear in this record. However, article
VII - Wages - contains the following, inter alia, as
section 5:
All employees covered by this Agreement shall be paid
an hourly wage which shall be not less than the hourly
wage established by this contract. If any employee
receives gross compensation in a given pay period,
which is in excess of the hourly rate provided in the
Agreement, then in that event the Employer shall be
required to pay such employee the higher hourly rate
for the balance of the term of this Agreement .. .
Any employee covered by this Agreement who enters
into any arrangement - express or implied, direct or
indirect - with an Employer which contemplates any
form of compensation (other than an hourly wages as
provided for in this Agreement) shall be terminated by
the Employer and shall not be reemployed by such
Employer during the term of this Agreement .. .
In addition, the 1969 agreement provides the same daily
hours of straight time work, as article IX, the same
overtime provision, as article X, and the same provisions
for employer contributions set forth supra, however with
modifications as to the amounts, per hour of work per
employee.
The provisions of what was article VI, section 6, in the
earlier agreement, providing a statement, on each pay
check of straight time and overtime hours worked, each
week, appears, in toto, as article VII, section 8.
C. The Alleged Refusal To Bargain
The several facets of the evidence which purportedly
establish the existence of a piece rate system of payment,
to employees , for work performed , during the Section
10(b) period , are next set forth seriatim
1. The appropriate unit - the Union's majority
status
The collective-bargaining agreement of April 1, 1966,
contains a provision, article III, section 1(b), which
provides, inter alia, that:
Any employer who becomes a party to this agreement,
regardless of whether such employer is or becomes a
member of the Association, shall thereby become a
member of the multiemployer collective bargaining unit
established by this paragraph.
Article III, section 1(a), provides for what is commonly
known as a Union Shop. Article II defines the work
A & A TILE COMPANY 239
jurisdiction as measuring, cutting, fabricating, fitting, or
installing of carpet, linoleum, soft tile and resilient floor
covering. Article III, section 2(c) defines the employees
covered as journeyman mechanics and apprentices.
The collective-bargaining agreement of April 1, 1969,
contains all of the provisions of the earlier agreement set
forth in the preceding paragraph, although the numbering
of articles has been modified
Finding, from stipulations of the parties, that the
partnership, as it existed on the respective dates in
question, was signatory to the collective-bargaining
agreements, it follows that the partnership voluntarily
recognized the Union as the exclusive collective-bargaining
representative of its employees No issue of majority
status appears herein.
The complaint alleges and the answer denies that the
employees are in an appropriate multiemployer bargaining
unit. Respondents take issue with the conclusion drawn by
the language of article III, section l(b), that an employer,
by becoming signatory to the association agreement
thereby becomes a member of a multiemployer collective
bargaining unit. Respondents do not dispute the existence
of the language or the fact of their having become a party
to these agreements. I find it unnecessary to resolve the
question of whether the employees of Respondents are, in
fact, members of a multiemployer or single employer unit,
since either is an appropriate unit.
2. Asserted admissions of Harris - summer 1967
Chandler's appearance and recitation were unconvincing
and I do not find him to be a credible witness, on the
basis of his demeanor and the vagueness and
implausibility of his recitation In addition, it should be
noted that the time of his alleged conversation, with
Harris, was at least 10 or 12 months prior to the
commencement of the time limitation of Section 10(b)
Thus, even if found credible, in the words of the Supreme
Court, it could no more shed light on the true character of
matters occurring within said period '
3 Long letter and confrontation October 1968
On October 8, 1968, by letter, Donald Long, business
representative of the Union, advised Harris that Long had
been advised that Harris, in violation of article VI of the
agreement, had instituted a piecework schedule. The letter
requested a meeting. On October 10, Harris responded, by
letter, denying knowledge of any violations of the
agreement, but indicating a willingness to meet with Long.
At a subsequent meeting, on October 14 or 15, Harris
again denied paying his employees on a piecework
schedule.
The October dates are of importance as reflecting the
time which the Union asserts as the first notice it had of
the alleged violations. On December 12, 1968, Long filed
the charge herein.'
4. Records re: Stickel and Higuera October 16 to 22,
1968
Robert Chandler is the owner of two floor covering
shops, in Beaverton, Oregon, a suburb of Portland.
Chandler asserted that he had a conversation with
Charles B. Harris, known to him as "Bing" in "July, or
August, June," 1967. The place of the conversation was a
beer tavern in downtown Portland, which Chandler
identified as Orleans Alley. Chandler's recitation was "I
don't know how the conversation got started or even how
it ended, but it was to the effect that he was paying his
employees piece work, or by the piece, on formica,
linoleum, ceramic tile, that he was making better money
at it than he thought he could paying by the hour."
Having asserted that Harris was paying for formica by the
square foot, and linoleum by the yard, Chandler, first,
assumed that ceramic tile was paid for by the square foot,
then, when asked to be specific as to what was said
asserted "It's been a long time and I don't remember."
Chandler asserted that the conversation, in question,
was a portion of a meeting which extended from 7 or 8
o'clock, at night, until 10 or 11, during which 10 or 12
beers were consumed, although it is obscure if this
consumption was an individual or joint total. Chandler
could not recall what led into this conversation, how they
happened to meet on this particular evening, during what
portion of the conversation this particular discussion
occurred, and had no memory of anything else discussed
at this particular meeting. Chandler acknowledged he has
had no discussion with Harris since the time indicated.
Chandler acknowledged that at the time in question, the
one company he was operating, at that time, was engaged
in home installation, as distinguished from apartment
house work and was not competitive with Harris. Since
that time, the second company, which he has operated
approximately 1 1/2 years, is engaged in apartment house
installation and is competitive with Harris. Chandler
asserted that, at the time of his testimony, he was a strong
competitor of Harris and not on good terms with him.
Respondents' pay week commenced each Wednesday
and ended the following Tuesday. Thus October 16 to 22,
1968, was a pay week for Respondents' employees. The
timecard of Dennis Stickel, for that week, reflects that he
worked 8 hours, at straight time, each day, and 5 hours of
overtime, each day, of the normal work days of Monday
through Friday, and, in addition, that he worked 8 hours
of overtime on Saturday. Thus a total of 40 hours at
straight time, and 33 hours of overtime are reflected. The
timecard of Higuera, for the same week, reflects 8 hours
of straight time work each day, Monday through Friday,
with 8 hours of overtime on Saturday, 2 hours of overtime
on both Tuesday and Friday, 3 hours of overtime on both
'Local Lodge No 1424 (Bryan Manufacturing Co ) v N L R B. supra
Respondents rested without presenting any evidence At that time no
explanation was made of Respondents ' reason for not calling Harris to
dispute the recitation of Chandler, and no request was made for a
continuance However, prior to the hearing herein, on August 18, 1969,
Respondents filed a motion for a postponement of hearing asserting, in an
accompanying affidavit , that Harris would be out of the state, on a
combination business and vacation trip, from September 10 until the end
of November, 1969. The Regional Director denied the motion The
Regional Director 's order reflects that it was issued on August 15 ,I find it
unnecessary to attempt resolution of how the order could be issued prior to
the date of the filing of said motion
'1 find the recitation of William R. Eder to be without probative value
Eder is the owner of Milwaukee Linoleum Company Whether he is a
competitor of Respondent is obscure
Eder asserted that , in March 1968 , while Eder was a foreman at
Floorcraft (unidentified further ), Lee Davis , allegedly employed by
Respondents as a ceramic tile layer, applied for work, requesting the same
piece work prices Davis was allegedly receiving from Respondents Eder
acknowledged ceramic tile laying was not within the jurisdiction of the
Union herein, at that time or since Davis' name does not appear on the
list of Respondents ' employees from July 1968 to June 1969
The recitation of Eller that Earl Davidson , an employee of Respondents,
in March 1968 , advised Eller, after consulting a schedule , that Davidson
had to do "so many feet that day" to make a $200 check, is rejected as
hearsay as to the fact sought to be established
240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Monday and Wednesday, and 4 hours of overtime on
Thursday, or a total of 40 hours at straight time and 22
hours of overtime. General Counsel sought to establish
that neither of these employees worked overtime, and that
the payment of overtime was a subterfuge to conceal
piecework payments.
Joseph B. Snedeker and Donald Long, both business
representatives of the Union, related the efforts they
expended, during the week in question, to ascertain
precisely what hours these two employees were, in fact,
working
Snedeker asserted that he checked on both employees
on all of these days, except Tuesday. Long asserted that
he did the checking on Tuesday. Snedeker asserted that he
entered notes of his observations on a calendar, which is
in evidence. In addition, Snedeker entered the reports
made by Long.
Snedeker placed the situs of Higuera's employment,
during his observations that week, as in an apartment
building on Northeast 41st Street, just off Powell, behind
the Safeway store. Long placed the situs of Higuera's
work as in an apartment building at Northeast 28th and
Glisan. I find resolution of this disparity unnecessary.
Both placed the situs of Stickel's work as being in a
multiple unit apartment house in Raleigh Hills, southwest
Portland. Snedeker placed the distance between these two
work sites as approximating between 10 and 12 miles,
requiring driving through the heart of Portland.
Snedeker asserted that each of the named employees
would report each morning between 8 and 8:30 a.m 6
Snedeker asserted, each morning, he would pass the job
where Higuera was working, between 8 and 9 o'clock, and
proceed to the job where Stickel was working. He would
remain there long enough to be certain Stickel was
working This might require 15 minutes, on any one visit.
He would then drive back and forth and observe each of
them three or four times during the day. He would be on
the west side to watch Stickel leave between 4:05 and 4.15
p.m., then drive to Powell Street, arriving there between
4:30 and 5 p.m., inferentially Higuera had left by then.
Snedeker asserted he checked the homes of Higuera
and Stickel, at least once each evening, after 7 o'clock to
be certain they had not returned to work. He deduced that
Stickel was at home by reason of seeing Stickel's Ford
and Volkswagen on the premises. Snedeker admitted he
did not see Stickel, on any of these visits. Likewise,
Snedeker observed Higuera's vehicles at his house.
Snedeker asserted one evening he saw Higuera talking to
others, and another evening cutting the grass
Snedeker observed Higuera working on Saturday,
October 19, with Earl Davidson, at the Pollock apartment
house. Snedeker asserted, without elaboration, that Stickel
did not work that day.7
- In the light of Snedeker ' s recitation that he started by observing
Higuera, whose work was at a place closer to Snedeker 's home, then drove
to the work site of Stickel, and that he followed this pattern on the 16th,
17th, 18th , 19th, and 21st, it must be concluded that Snedeker did not, in
fact, have any actual knowledge of the precise time at which Stickel
reported
'1 do not credit the assertion of Snedeker that Stickel did not work on
Saturday Snedeker 's entry on the calendar indicates that Stickel was home
at noon on Saturday , October 19 However, on cross-examination,
Snedeker acknowledged that he never saw Stickel at his home , on any of
his daily visits there but "just observed his truck in front of his house "
Snedeker prefaced all of his testimony on the proposition that it was
difficult for him to follow any employee from the shop to a particular job,
because it was easy to lose them in traffic, and he had no means of
knowing where they might be working in such event According to
Snedeker , he concentrated on trying to find one or two employees who
Long asserted that, on October 22, he made a record of
what time Higuera and Stickel "came on the job and what
time they left the job " He asserted they started on
different jobs "shortly after 8 o'clock." Stickel left at
approximately 4:15 p m., and Long proceeded to
Higuera's work site, arriving there about 5 p.m., finding
Higuera "had already left for the day " Obviously, since
these work sites were 10 or 12 miles apart, Long could
not have observed the time of arrival or departure of both,
at approximately the same time. Long, asserting he was at
the work site of Stickel at 8:15 a.m. "just drove by" the
work site of Higuera in the morning, and again in the
evening. Since Higuera was working inside an apartment
house, how Long could observe his presence or absence is
obscure, and I find improbable. Long acknowledged he
did not return to either work site after 5 p.m.'
I am unable to find, as contended by General Counsel
and Charging Party, that the recitations of Snedeker and
Long establish that Stickel and Higuera did not work the
overtime hours reported during the week of October 16 to
22, or that the work time reported was a guise, or
subterfuge, to cover payment of piece rates
5. Excessive overtime
I have found, supra, under Background, that the
collective-bargaining agreement, article X, provides for
monthly contributions by Respondents to the First
National Bank of Oregon, as trustee for specified trusts,
with copies of such monthly reports being supplied to the
Union. These contributions are predicated upon total
hours of actual work. General Counsel and Charging
Party contend that these reports, for the period
commencing July 1968 through June 1969, reflect
excessive overtime and are, in fact, a guise to cover the
payment of piece rates.
Helen E Feuerstein, a licensed public accountant,
credibly related that she prepared these reports from the
original time cards, initially prepared by each employee,
on which computations had been made by Respondents'
office employees. Feuerstein asserted that she did not
follow calendar months, in preparing the reports, [usually
computed on the basis of 4 1/3 weeks per month] but
would make her computations on the basis of complete
weeks by using a 4-week month for 2 months and a
5-week month for the 3rd month, which is a total of 13
weeks for each quarter. She asserted this was to conform
with the requirements of the Department of Employment,
state compensation (whether unemployment or industrial
commission is obscure) and Internal Revenue.
Feuerstein was unable to specify, with certainty, which
months include a 5-week, as distinguished from the
4-week, period. Except for the periods reported as August
1968, and May and June 1969, what might be termed an
excessive total number of hours appear to have been
worked only by two employees, David Granum and Ethan
Granum. The content of these reports, in terms of total
hours for all employees, average total per employee,
individuals with abnormally high totals, and the low and
would be working on a particular job for an extended period of time It
does not follow that Stickel and Higuera did not work elsewhere
'1 find no evidence of probative value in the recitation of Long that,
after Stickel and Higuera supplied the Union with copies of their
timecards, for the week of October 16 to 22 , the Union charged them with
violating the Union's bylaws, relative to piece work Long asserted that
Stickel was advised that his "comings and goings" on the job had been
observed , and Stickel refused to make a statement Higuera refused to
appear at the hearing conducted by a Union Trial Board
A & A TILE COMPANY 241
high total of the bulk of the work force in each reporting
period, are set forth seriatim
July 1968, 1899 total hours, 10 employees, average
189.9 hours.
David Granum 307 hours, nine others between 119
1/2 and 229 1/2 hours.
August 1968, 2824 total hours, 10 employees, average
282.4 hours
Ethan Granum 463 hours, David Granum 373 1/2
hours, Stickel 320 hours, Jim Fish 304 hours, J. Fish
(different Social Security number) 295 hours,
Davidson 297 1/2 hours, Higuera 261 1/2 hours,
three others between 92 1/2 and 223 hours
September 1968, 2314 total hours, 10 employees,
average 231.4 hours
David Granum 404 hours, Ethan Granum 360 hours,
eight others between 109 1/2 and 251 hours.
October 1968, 2279 1/2 total hours, 9 employees,
average 253 hours
Ethan Granum 436 hours, David Granum 368 1/2
hours, seven others between 102 and 272 hours
November 1968, 1739 total hours, 8 employees, average
217 1/2 hours.
Ethan Granum 296 1/2 hours, David Granum 293
1/2 hours, six others between 182 and 210 hours.
December 1968, 1855 1/2 total hours, 10 employees,
average 185.5 hours.
David Granum 292 1/2 hours, nine others between 56
and 245 hours
January 1969, 1465 1/2 total hours, 10 employees,
average 146 5 hours.
All between 74 1/2 and 207 hours.
February 1969, 1528 1/2 total hours, 11 employees,
average 139 hours.
All between 26 1/2 and 180 1/2 hours.
March 1969, 1892 total hours, I1 employees, average
172 hours.
David Granum 274 hours, ten others between 18 and
220 hours.
April 1969, 1942 1/2 total hours, I l employees, average
176 1/2 hours.
David Granum 261 hours, ten others between 107 and
215 1/2 hours
May 1969, 2587 1/2 total hours, I1 employees, average
235 hours.
David Granum 311 1/2 hours, Ethan Granum 299
1/2 hours, J. Fish 264 hours, Stickel 259 1/2 hours,
Jim Fish 254 1/2 hours, six others 117 to 242 hours.
June 1969, 2550 1/2 total hours, 11 employees, average
232 hours.
David Granum 348 hours, Ethan Granum 293 1/2
hours, T Granum 274 1/2 hours, Jim Fish 262 hours,
seven others 150 to 247 hours.
Absent even a scintilla of evidence whether August 1968
when ten employees averaged 282.4 hours, was a 4- or
5-week month, I am unable to conclude that the resulting
average per week of either 70 1/2 or 56 1/2 hours was so
excessive as to demonstrate that the reported hours were a
subterfuge for a piece rate system. The same conclusion
must be made as to October 1968, average 253 hours, and
May 1969, average 235 hours
Contentions of the Parties and Concluding Findings
Respondents urge that the Board is without jurisdiction
to enforce provisions of a collective-bargaining agreement.
It is well established by Board and court decisions that the
Board should not and does not undertake the action
described.' However, an entirely different issue is
presented herein The sole question is whether
Respondents' alleged conduct, if proven, constitutes an
unfair labor practice. Determination of that question has
been vested exclusively in the Board, by Congress.
Respondents urge the time limitation of Section 10(b)
precludes a finding of an unfair labor practice since the
complaint alleges the practice, complained of, commenced
in the summer of 1966. However, the complaint also sets
forth an alleged continuing violation, i.e , the payment of
wages on a piece rate basis, unilaterally instituted, without
notice to and bargaining with the Union. These allegations
relate to the period commencing in June, 1968. 1 find no
merit in the contention.'°
Similarly, I find no merit in the assertion of Charging
Party that concealment "from the Union" by Respondents
"foreclosed the company from invoking the limitation
provision [of] - Section 10(b)." The cases cited do not so
hold.
Respondents correctly assert, in their brief, that the
Board, in Russell-Newman Mfg. Co, Inc, 167 NLRB
No. 156, did not hold the fraudulent concealment of
unfair labor practices operates to toll the period of
limitations . Respondents correctly assert the Board held
that the limitations period will not begin to run until the
unfair labor practice became effective and known to the
employees
I fins unnecessary any extended treatment of the
doctrine of fraudulent concealment, alleged as an unfair
labor practice, and urged by Charging Party, in closing
argument. Respondents correctly urge that the burden of
proving not only acts of concealment but also that by the
exercise of reasonable diligence the Union could not have
known or discovered the facts allegedly concealed is that
of General Counsel. There is not a scintilla of evidence
that the employees of the Respondents did not know the
basis upon which they were paid The so-called excessive
hours were reported to the Union, each month,
commencing July 1968. The content of prior reports is
obscure and no inference can be drawn as to hours of
work prior to July 1968. Thus, the facts relative to hours
of work, during the 6-month period preceding the filing of
the charge, rather than being concealed, were submitted to
the Union promptly, each month.
I have found, supra, that article VI, section 4, of the
April 19, 1966, to March 31, 1969, agreement expressly
prohibits piece work Respondents urge that this provision
was abandoned during 1969 negotiations. It is undisputed
that it does not appear in the 1969 agreement, apparently
being replaced by the provisions of article VII, section 5,
supra The deletion of the provision does not render moot
the question' of whether an unfair labor practice was
'Morrison-Knudsen Co, Inc v N L R B, 418 F 2d 203 (C A 9),
NLRB v C& C Plywood Corp, 385 U S 421, 425-428, N L R B v
Strong, 393 U S 357
"Local Lodge No 1424 v NLRB , supra
242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
committed.
I turn next to the question of whether the evidence
establishes the existence of a piece rate. I have rejected,
for reasons set forth, supra, the recitations of Chandler
and Eiler, relative to events predating the commencement
of the 10(b) period.
I have, for reasons set forth, supra, rejected the
assertions of Snedeker and Long, to the extent they
sought to establish that Stickel and Higuera did not, in
fact, work the overtime hours which the timecard of each
reflects, during the period of October 16 to 22, 1968. I do
not believe that Long, simply by passing by the apartment
worksite, where Higuera was employed, in a matter of 30
seconds, as he related, could determine that Higuera was
or was not present. Similarly, I do not believe, as related
by Snedeker that his visits to the home of Stickel, each
evening during that work week, and his observing that
Stickel's two automobiles were there, permits a conclusion
that Stickel was at home, or that he did not work any
overtime on any of those evenings . In so finding, I am not
unmindful that Stickel's timecard reflects 5 hours of
overtime for each of those evenings While it is true that
Snedeker, asserted that he saw Higuera, on two evenings,
at the latter's home, he did not specify the precise days of
the week. Higuera's timecard reflects as little as 2 hours
of overtime and at most 4 hours of overtime during the
evenings in question. Thus it is not improbable that even
though Snedeker saw Higuera, [at home] Higuera also
performed overtime work the same evening. I find the
evidence inconclusive and without sufficient probative
value to support the conclusion sought, i e., that Stickel
and Higuera did not, in fact, work overtime, and that the
overtime was a subterfuge to obscure the payment of a
piece rate.
We are thus left with the question of whether the
records of substantial overtime as reported, the facts being
undisputed, establish a guise or subterfuge to obscure the
existence and payment of piece rates. It is not urged that
only Ethan Granum and David Granum, who obviously
worked a substantial number of hours of overtime, were
paid piece rates. The essence of the complaint is that all
of the employees were on a piece rate system. With the
exception of the months of August 1968, and April and
May 1969, no one of the other employees appeared to
have worked a substantial number of overtime hours.
General Counsel urges , in his brief, "no employer in
business for profit would permit his employees to pad
their time records like this if they were being paid on an
hourly basis especially where the padding would be on the
basis of time and a half or double time. The only
reasonable inference that can possibly be drawn from this
is that Respondent was continuing to pay his employees
on a piece-rate basis and was having them falsify their
time records in order to conceal this piece-rate payment
from the Union." I fail to understand the logic or the-
asserted reasonableness of the conclusion. There is no
evidence herein that the employees were not paid, in
accordance with the provisions of the collective-bargaining
agreement, for all hours of overtime. How Respondents
profited by substituting a piece rate for substantial hours
of premium pay is obscure. Article VI, section 6, supra,
provides that each paycheck stub will contain "an
itemized account" of straight time hours worked, overtime
hours worked, hourly rate of pay, expenses and
deductions. There is no evidence that the Union ever
sought this information. General Counsel's presumptions
are factually unsupported in this record
General Couns -I urges a 14 hour day, 30 days a month,
are required to arrive at a total exceeding 400 hours
While arithmetically correct, such a schedule is not
implausible.
There can be no doubt, as urged by General Counsel,
that an employer may not unilaterally modify an existing
collective-bargaining agreement by substituting a piece
rate system for hourly rates, particularly where the
contract specifically proscribes such action, without being
guilty of an unfair labor practice. The problem here is
that the evidence does not establish the existence of the
conduct complained of.,I find no merit in the assertion of
General Counsel that Respondent presented no evidence
to refute the allegations or deny the evidence of record It
is the burden of General Counsel to produce sufficient
evidence of probative value to establish the alleged
violation.
On the basis of the entire record, for the reasons set
forth, I find the evidence herein does not establish that
Respondents unilaterally established a piecework rate
system, or paid their employees on a piece rate basis, or
concealed a nonexistent condition from the Union, and
that Respondents did not engage in conduct violative of
the provisions of Section 8(a)(5) and (1) of the Act.
Upon the foregoing findings of fact and upon the entire
record in the case I make the following:
CONCLUSIONS OF LAW
1. Respondents are an employer within the meaning of
Section 2(2) of the Act and are engaged in commerce
within the meaning of Section 2(6) and (7) of the Act
2. Linoleum and Carpet Layers Local Union 1236,
International Brotherhood of Painters, Decorators and
Paperhangers of America, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the
Act.
3. Respondents did not unlawfully fail or refuse to
bargain with the Union, on or after June 13, 1968, and
did not engage in conduct constituting interference,
restraint, or coercion, within the meaning of Section
8(a)(5) and (1) of the Act, as alleged in the complaint.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and
conclusions of law, I recommend that the complaint be
dismissed in its entirety.