Advanced Installations, Inc.

National Labor Relations Board - Board Decisions

Aug 20, 1981

257 N.L.R.B. 845 (N.L.R.B. 1981)

ADVANCED INSTALLATIONS, INC.
Advanced Installations, Inc. and Ventura County
District Council of Carpenters. Cases 31-CA-
8965, 31-CA-8972, 31-CA-9340, and 31-CA-
9536
August 20, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On October 16, 1980, Administrative Law Judge
William J. Pannier III issued the attached Decision
in this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting 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 brief
and has decided to affirm the rulings, findings,1 and
conclusions2 of the Administrative Law Judge and
to adopt his recommended Order, as modified
herein. 3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Advanced Installations, Inc., Ventura, California,
its officers, agents, successors, and assigns, shall
take the action set forth in the said recommended
Order, as so modified:
I 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 credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc., 91 NLRB 544 (1950). enfd. 188 F2d 362 (3d Cir 1951). We have
carefully examined the record and find no basis for reversing his findings.
2 The Administrative Law Judge concluded, and we agree. that Re-
spondent violated Sec. 8(a)(5) and (1) of the Act by bargaining directly
with employees Beck and Mills concerning the method of computing
working hours and payment therefor. In so doing. we additionally note
that the record establishes that Respondent, in fact, offered Mills. and
Mills accepted, the opporuntity to work under an incentive program.
3 In par. 2(a) of his recommended Order, the Administrative Law
Judge provided a general bargaining order as a remedy for his finding
that Respondent violated Sec. 8(a)(5) and (I) of the Act b altering the
terms and conditions of its collective-bargaining agreement with the
Union. However, since the complaint did not allege and the Administra-
tive Law Judge did not find that Respondent generally refused to bargain
with the Union, we shall modify the recommended Order. See Lloyd
Well, an Individual d/b/a Pere Marquetue ParA Lodge. 237 NLRB 855, ft.
2 (1978).
Member Jenkins would provide interest on the backpay awards due to
Respondent's unlawful suspension and discharges of employees in accord-
ance with his partial dissent in Olyvmpic Medical Corporation. 250 NLRB
146 (1980).
1. Delete paragraph 2(a) and reletter the subse-
quent paragraphs accordingly.
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through
sentatives of their own choice
repre-
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL NOT interrogate you regarding
your union activities and sympathies.
WE WILL NOT threaten you with reprisals
because you do not agree to unlawful changes
in the terms of our collective-bargaining agree-
ment with Ventura County District Council of
Carpenters and because you participate in ef-
forts to oppose those changes.
WE WILL NOT suspend, discharge, or other-
wise discriminate against you for engaging in
activities on behalf of the above-named labor
organization or any other labor organization as
your collective-bargaining representative.
WE WILL NOT change and refuse to apply
terms and conditions of collective-bargaining
agreements with Ventura County District
Council of Carpenters as the collective-bar-
gaining representative of employees in the fol-
lowing appropriate bargaining unit:
All employees employed by employer-mem-
bers of The Building Industry Association of
California, Inc., including Advanced Instal-
lations, Inc., in the classifications carpenter,
shingler, hardwood floor worker, mill-
wright, saw filer, table power saw operator,
pneumatic nailer or power stapler, wood
fence builder on residential projects, roof
loader of shingles, pile driver foreman,
bridge or dock carpenter and cable splicer,
pile driver man-derrick bargeman, head
rockslinger, rockslinger, rock bargeman or
scowman, cabinet installer and acoustical in-
staller, excluding office clerical employees,
257 NLRB No. 95
845
DECISIONS OF NATIONAL L.ABOR RELATIONS BOARD
guards and supervisors as defined by the
Act.
WE WILL NOT offer to bargain or bargain di-
rectly with employees in the above-described
bargaining unit.
WE WILL NOT in any other manner interfere
with, restrain, or coerce you in the exercise of
your rights set forth above which are guaran-
teed by the National Labor Relations Act.
WE WILL reinstate and observe all terms and
conditions of our collective-bargaining agree-
ment with Ventura County District Council of
Carpenters, covering employees in the appro-
priate bargaining unit described above, that we
have changed, and WE WILL make you whole
for any losses in wages and benefits that you
would have received but for our unlawful
changes and modifications in contractual
terms.
WE WILL offer Eric James Beck, Donald H.
Webb, David Mills, and Patrick Allison
Mergen immediate and full reinstatement to
their former positions, dismissing, if necessary,
anyone who may have been hired or assigned
to perform the work that they had been per-
forming prior to the time that they were termi-
nated, or, if those positions no longer exist, to
substantially equivalent positions, without prej-
udice to their seniority or other rights and
privileges, and make them whole for any loss
of pay they may have suffered as a result of
discrimination, with interest.
ADVANCED INSTALLATIONS, INC.
DECISION
STATEMENT OF THE CASE
WILLIAM J. PANNIER III, Administrative Law Judge:
This matter was heard by me in Ventura, California, on
February 12, 13, 14, and 27, 1980, and the record, after
being reopened, was closed on August 1, 1980. On June
26, 1979,1 the Regional Director for Region 31 of the
National Labor Relations Board issued an order consoli-
dating cases, consolidated complaint and notice of hear-
ing, based upon the unfair labor practice charges in Case
31-CA-8965, filed on May I and amended on May 21,
and in Case 31-CA-8972, filed on May 4 and amended
on May 21, alleging violations of Section 8(a)(1), (3), and
(5) of the National Labor Relations Act, as amended, 29
U.S.C. §151, et seq., herein called the Act. Based upon
the charge in Case 31-CA-9340, filed on August 30 and
amended on October 31, the said Regional Director
issued an order consolidating cases, consolidated amend-
ed complaint and notice of hearing on October 31, alleg-
ing additional violations of these subsections of the Act.
'Unless otherwise stated, all dates occurred in 1979.
Finally, the charge in Case 31-CA-9536, filed on No-
vember 6, led the Regional Director to issue an order
consolidating cases, second consolidated amended com-
plaint and notice of hearing, alleging additional viola-
tions encompassed by the foregoing subsections of the
Act. All parties have been afforded full opportunity to
appear, to introduce evidence, to examine and cross-ex-
amine witnesses, and to file briefs. Based upon the entire
record,2 upon the briefs which were filed, and upon my
observation of the demeanor of the witnesses, I make the
following:
FINDINGS OF FACT
I. JURISDICTION
At all times material, Advanced Installations, Inc.,
herein called Respondent, has been engaged in the busi-
ness of installing insulation and weather-stripping, and
has been an employer-member, for the purpose of collec-
tive bargaining with labor organizations, of The Building
Industry Association of California, Inc., herein called the
Association. The Association is a voluntary association
of employers, and maintains its headquarters in Southern
California. It admits to membership contractors engaged
in construction in Southern California and it exists, in
part, for the purpose of bargaining with labor organiza-
tions concerning rates of pay, wages, hours of employ-
ment, and other terms and conditions of employment of
employees employed by its employer-members, including
Respondent. Respondent admits that the employer-mem-
bers of the Association constitute a single employer for
the purpose of the Act. Further, the parties stipulated
that during the last fiscal or calendar year, the employer-
members of the Association collectively purchased and
received goods valued in excess of $50,000 directly from
suppliers located outside the State of California. They
also stipulated that at all times material, the Association
and its employer-members, including Respondent, collec-
tively have been an employer within the meaning of Sec-
tion 2(2) of the Act, engaged in commerce and in a busi-
ness affecting commerce within the meaning of Section
2(6) and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
At all times material, Ventura County District Council
of Carpenters, herein called the Union, has been a labor
organization within the meaning of Section 2(5) of the
Act.
2 Counsel for the Charging Party has moved to strike certain summar-
ies proferred by Respondent, as exhibits, on the ground that the underly-
ing documentation has not been made available to her for inspection and
comparison. Counsel for Respondent opposes this motion, arguing that
counsel for the Charging Party simply has chosen not to avail herself of
opportunities for inspection that were afforded. Counsel for the Charging
Party has not disputed that representation, nor has she specified any in-
stance when the opportunity for inspection has been denied to her. More-
over. as discussed infra, counsel for the General Counsel has represented,
in a proffered post-hearing stipulation, that she has been shown the un-
derlying documentation. There is no basis for inferring that this docu-
mentation would have been made available to the General Counsel, but
not to the Charging Party Therefore, I deny the Charging Party's
motion to strike
846
ADVANCED INSTALLATIONS, INC.
Ill. THE ISSUES
Since 1964, Respondent has been a member of the As-
sociation, which existed under a different name prior to
July 27, 1967. 3 Respondent has authorized the Associ-
ation to bargain on its behalf and has agreed to be bound
by collective-bargaining agreements negotiated with the
Union by the Association. On July , 1977, the Union
and the Association, on behalf of its employer-members,
entered into a collective-bargaining agreement, effective
until July 15, 1980. 4
The General Counsel alleges that between November
3, 1978, and February 26, and, again, on and after April
26, Respondent made unilateral changes in those portions
of the collective-bargaining agreement pertaining to
wage rates; time spent loading, unloading, and handling
material; travel time; and, contributions to the Joint Ap-
prenticeship and Training Committee Fund, Health and
Welfare Fund, Pension Plan Fund, and Vacation Savings
and Holiday Plan. In addition, it is alleged that, during
the week of March 5, Respondent bypassed the Union
and engaged in direct negotiations with an employee re-
garding calculation and payment of the latter's wages
and other benefits. These matters are alleged to consti-
tute violations of Section 8(a)(5) and (1) of the Act.
The General Counsel also alleges that the following
personnel actions were taken in violation of Section
8(a)(3) and (1) of the Act: I-day suspensions of Frank
Pagano in March and of Eric Beck on April 6, the dis-
charge of Beck on April 26, the layoff of Donald Webb
in early August, and the layoffs of David Mills and of
Patrick Mergen on August 27 or 28. Finally, the General
Counsel alleges that various remarks of Vice President
and Manager Robert Wood 5 and of then Operations
Manager Dave Thompson 6 during 1979 violated Section
8(a)(1) of the Act. Thus, it is alleged that Wood had so-
licited an employee to engage in surveillance of other
employees' protected activities on March 9 or 15; had
threatened employees with unilateral changes in their
terms or conditions of employment on April 25 and 26
and in early May; had threatened employees by telling
' No issue has been raised with respect to the effect of the change in
name of the Association either on Respondent's membership therein or
on its duty to bargain with the Union.
4 This agreement covered all employees employed by employer-mem-
bers of the Association in the job classifications listed in article IX: car-
penter, shingler, hardwood floor worker, millwright, saw filer, table
power saw operator, pneumatic nailer or power stapler, wood fence
builder on residential projects, roof loader of shingles, pile driver fore-
man, bridge or dock carpenter and cable splicer, pile driver man-derrick
bargeman, head rockslinger, rockslinger, rock bargeman or scowman.
cabinet installer and acoustical installer. The parties stipulated that a unit
consisting of these classifications is appropriate for purposes of collective
bargaining within the meaning of Sec. 9(b) of the Act. They further stip-
ulated that at all times material, a majority of the employees in that unit
had designated and selected the Union as their representative for the pur-
poses of collective bargaining and, further, that at all times material since
at least April 24. 1964, the Union has been the exclusive representative of
the employees in that unit for the purposes of collective bargaining.
5 While the complaint alleges only that Wood was Respondent's vice
president, he testified that he was also its manager. The parties stipulated
that, at all times material, Wood had been a supervisor within the mean-
ing of Sec. 2(11) of the Act and an agent of Respondent.
6 The parties stipulated that Thompson had occupied the position of
operations manager and had been a supervisor and agent of Respondent
from approximately December 15, 1978, to approximately December 15,
I979.
them on April 26 to quit if they did not want to acqui-
esce in Respondent's unilateral changes; and, had unlaw-
fully interrogated employees regarding their union activi-
ties, sympathies, and desires in mid-February, in mid-
March, on April 6, in mid-July, during the week of
August 17, and on August 24. Similarly, it is alleged that
during May, Thompson had threatened to lay off em-
ployees who did not comply with the unilateral changes
and that during July, he had unlawfully interrogated em-
ployees regarding their union activities.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Unilateral Changes
The principal allegation in this matter, and the one
from which it is alleged all other unlawful conduct
evolved, is that Respondent modified the method of pay-
ment prescribed in its collective-bargaining agreement
with the Union. In essence, that agreement provides that
employees are to be paid on an hourly basis. In addition
to the actual time spent performing their craft duties,
under Appendix C of the agreement employees must be
paid for "loading, unloading and handling of materials"
and for "travel from job to job, shop to job, or job to
shop." Finally, Attachment I to Appendix A of the
agreement provides that for each hour worked by an em-
ployee, certain specified amounts are to be paid to the
various funds enumerated in section III, supra. Accord-
ingly, if the number of hours worked by an employee is
understated, reduced amounts will be contributed to
these funds.
Seven employees or former employees of Respondent
(journeymen Eric James Beck, Patrick Donlon, and
Frank Pagano, and apprentices David Mills, Marty Folk,
Donald H. Webb, and Patrick Allison Mergen) testified
that at various points in their employment with Respond-
ent, specifically during late 1978 and during 1979, they
had been told that a certain square footage of insulation,
the figure varying at different points in time and for dif-
ferent employees, had to be installed or "hung" to re-
ceive an hour's pay. According to these employees, this
resulted in their not being paid for certain hours that
they had worked inasmuch as it frequently took longer
than an hour to install the amount of insulation required
to claim an hour's pay. Moreover, the employees testi-
fied that during these periods of time Respondent did not
pay them for the time which they had spent in travel and
in loading, unloading, and handling material. Of course,
as noted above, since contributions to the various con-
tractual funds are based upon the number of hours
worked, the reduction in total working hours occasioned
by this piecework or, as Wood referred to it, "incentive"
method, would also result in a reduction in contributions
to the funds.
Wood, Respondent's supervisor in immediate charge
of operations at Ventura, denied that there had ever been
any deviation from the contractually prescribed, hourly
method of payment. To support his testimony, and to
refute that of the employees, Respondent produced sum-
maries (Resp. Exhs. 2A through F), ostensibly showing
the total daily hours worked by Beck, Donlon, Pagano,
847
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mills, Webb, and Mergen, as well as the total footage in-
stalled on those days. At the time that these summaries
were produced initially, Respondent did not possess the
daily workcards (similar to a standard timecard) from
which the figures on the summaries had assertedly been
copied. A 2-week recess was taken to permit counsel for
the General Counsel and counsel for the Charging Party
to examine the workcards, as required by Federal Rules
of Evidence, Rule 1006, in order to permit summaries to
be admitted into evidence.
When the hearing resumed,7 counsel for the General
Counsel represented that she had not been shown work-
cards for a substantial number of entries on the summar-
ies and, moreover, that there were numerous inaccura-
cies on the summaries when compared with cards that
she had been shown. Respondent introduced the work-
cards then in its possession, which apparently represent-
ed all of the cards that had been produced for the Gen-
eral Counsel's inspection during the 2-week period with
respect to the employees covered by the summaries.
Even a cursory comparison of the entries on the sum-
maries and of the workcards discloses that a significant
number of cards had not been produced for inspection.
The hearing was closed with the parties being instructed
that only those entries on the summaries that were sup-
ported by a corresponding workcard in the record
would be relied upon in resolving the change in method
of payment allegation.
Later, the record in this matter was reopened pursuant
to a motion by counsel for the Charging Party. Included
with the General Counsel's subsequent motion to close
the record were nine additional workcards, submitted for
receipt into evidence, and a stipulation: "All parties
herein stipulated [sic] that Respondent's Exhibits 2A-2F
inclusive may be received in evidence in their entirety
for the primary source material of said Exhibits have
been made available to general counsel and the charging
party for inspection." Counsel for the Charging Party re-
fused to sign the stipulation, but counsel for the General
Counsel had done so, thereby acknowledging that she
had reviewed the underlying workcards and, presum-
ably, that the summaries were accurate in all respects,
save for the inconsistencies shown by workcards submit-
ted into evidence. However, in Attachment 1 to her
brief, the General Counsel argues that two of the sum-
maries should not be considered at all "inasmuch as Re-
spondent offered no original work cards into the record
with which these summaries could be compared." More-
over, she argues that the contents of the remaining sum-
maries "should also be discounted as unreliable" based
upon the inaccuracies disclosed when they are compared
with the workcards which have been offered and re-
ceived into evidence. In addition, as noted in footnote 2,
counsel for the Charging Party moves to strike two of
the summaries and part of another for failure to afford
her an opportunity to examine the underlying workcards,
an assertion which is disputed by counsel for Respond-
ent.
' Counsel for the Charging Party chose not to appear at the resumed
hearing.
Without belaboring a confused situation unduly, in
view of the discussion infra, much of the information re-
corded on both the summaries and the workcards that
are in evidence does tend largely to refute the employ-
ees' claims that during certain periods of time, they had
been obliged to report their hours on a piecework or in-
centive basis.8 The documentary evidence, however, is
not the only evidence pertaining to the alleged change in
the contractually prescribed method of payment.
Both the General Counsel's and Respondent's wit-
nesses agreed that there had been two meetings conduct-
ed between the Union and Respondent to resolve em-
ployee complaints regarding computation of their hours.
One occurred in February and the other in May. The
second meeting had been attended by Respondent's
president, Roger Zeller.9 When testifying, Wood denied
that he had ever deviated from the method of payment
provided by Respondent's agreement with the Union.
However, Zeller's testimony as to what had transpired at
the May meeting with the Union contradicted Wood's
denial:
Q. Isn't it a fact, Mr. Zeller, that at that particu-
lar meeting which was held early in May at the
Ventura plant with union representatives, employ-
ees and yourself, Mr. Wood and Mr. Thompson,
that Advanced employees complained at that meet-
ing of being paid by piece rate?
A. Yes.
Q. Didn't Mr. Wood also state at that meeting
that he had placed the employees on an inventive
[sic] plan?
A. Yes.
Given the fact that this had been a meeting at which the
Union had been protesting Wood's changes in the em-
ployees' method of claiming their hours worked, it seems
unlikely that Wood would have made such an admission
if there had been no such changes.
"It rarely happens that those who are participating in
something that is prohibited by law openly and avowed-
ly announce their intention to perform the prohibited act.
Thus it is that the courts pay special attention to such
statements against interest when in the unusual case it
occurs that a party admits that his conduct [has been un-
lawful]." Brown Transport Corporation v. N.L.R.B., 334
F.2d 30, 38 (5th Cir. 1964). Wood's statement to Zeller
"amounted to a statement by the responsible manage-
ment on the important thing which had . . . happened
earlier . .. . [and] . . . [I]t was a statement . . . of what
[Wood] himself knew firsthand." N.L.R.B. v. L. C. Fer-
guson, et al., 257 F.2d 88, 92 (5th Cir. 1958). That state-
ment by Wood constituted an "outright confession" of
unlawful action which "eliminated any question concern-
' It is worth noting, however, that a comparison of Beck's summary
and workcards prior to February does show an approximate relation be-
tween his daily hours and total footage, on the one hand, and the 625-feet
figure that he testified that he had been instructed, by Wood, to use as a
divisor in computing his hours worked.
" The parties stipulated that at all times material. Zeller had been a su-
pervisor within the meaning of Sec. 2(11) of the Act and an agent of Re-
spondent,
848
ADVANCED INSTALLATIONS, INC.
ing the intrinsic merits" as to the extent and points in
time at which Wood had imposed the piece rate or in-
centive system of computing hours. Id.
Furthermore, Zeller's description of Wood's admission
of changes in the employees' method of pay is not the
only evidence tending to support the allegation that Re-
spondent had changed the contractually prescribed
method. Wood denied generally that he had ever told
any employee that he (the employee) should turn in only
the number of hours reached by dividing the total foot-
age installed by a figure selected by Wood. Yet, at no
point did Wood dispute the specific accounts of remarks
concerning this subject attributed to him by employees.
Thus, Donlon testified that when he had been hired,
Wood had instructed him to compute the number of
hours that he worked by dividing his total footage each
day by 600 and, further, that Wood had increased that
figure to 650 approximately a year thereafter. Donlon
also testified that approximately 2 weeks after the Febru-
ary meeting between Respondent and the Union, he had
been summoned to the office where Wood had explained
that Respondent's labor costs were higher than those of
other companies and had inquired how Donlon liked a
piece work system. Similarly, Beck testified that when he
had been hired in July 1978, Wood had said to compute
his total number of hours each day by dividing 625 into
the total footage that he had hung. Webb testified that,
shortly after he had commenced working for Respondent
in February, Wood had instructed him to use the piece
rate computation to determine the number of hours that
he worked each day. Further, testified Webb, approxi-
mately 2 weeks after the meeting with the Union that
Zeller had attended, Wood had said that the employees
were claiming too much stocking and travel time, that
the footage had to be increased, and that the employees
should resume computation of their total hours by the
piece rate system. In a like vein, Mills testified that, ap-
proximately 2 weeks after the February meeting, Wood
had inquired if Mills would like to change to an incen-
tive program of being credited for an hour's work for
every 400-square foot of insulation that he hung. Ac-
cording to Mills, in late March or early April, Wood had
"told us that we would start hanging 300 feet an hour
for an hour's pay and if we didn't like it we could go out
the front door and he didn't care if we went and told the
union." While, as noted above, Wood generally denied
having ever told employees to turn in their hours on a
piece rate or incentive basis, he did not specifically deny
having made these statements, attributed to him by the
employees, and, consequently, "an inference adverse to
the Respondent is warranted from the Respondent's fail-
ure to elicit testimony [from Wood concerning these
conversations]." Keller Manufacturing Company, Inc., 237
NLRB 712, 727 (1978). Thus, I credit the employees' de-
tailed and undenied accounts of Wood's remarks. See,
e.g., Rock-Tenn Company, 238 NLRB 403, fn. 2 (1978).
In addition to the above-described remarks of Wood,
similar comments were attributed to Thompson. Thus,
Mergen testified that in late June or early July, Thomp-
son had said that as a probationary apprentice, Mergen
had "to put up 2,600 feet for an eight-hour day." Both
Mills and Mergen described an occasion, in late July or
early August, when they had been reprimanded by
Thompson for miscalculating the number of hours
claimed by them in light of the total footage that they
had hung that day. Thompson told Mills that he should
be hanging 463 square feet for an hour's pay. When the
two employees disputed Thompson's statements, Wood
happened along and confirmed them, in the process
taking the employees to his office to show them a chart
on Respondent's costs for hanging a square foot of insu-
lation. In a related area, Webb testified that in late June
or July, Thompson had been watching Webb fill out his
workcard and had said "if you guys keep claiming all of
this stocking and travel time, you are just going to find
that there is suddenly going to be a lack of work." In
early August, testified Webb, both Thompson and Wood
had admonished him for claiming stocking and travel
time on the previous day. Thompson was called as a wit-
ness by Respondent, but was not questioned concerning
whether he had made these remarks and, accordingly,
they are undisputed. The failure of Respondent to ques-
tion Thompson as to whether he had made such com-
ments, having called him as its witness, gives rise to an
inference that had he been asked, Thompson would have
testified in a manner unfavorable to Respondent. ColorJfo
Decorator Products, Inc., 228 NLRB 408, 410 (1977),
enfd. by memorandum opinion 582 F.2d 1289 (9th Cir.
1978). Therefore, I find that Thompson did make the
statements attributed to him by Mergen, Mills, and
Webb.
That, viewed from his perspective, Wood would have
found it desirable to institute a piece rate or incentive
program, to measure the working hours of Respondent's
employees, is apparent from the circumstances of Re-
spondent's operations. Zeller testified that Respondent
had "to strive to live up to the industry standards, and
that is the reason why we go out and check the projects,
to see, you know, what type of production level we
should be looking for." Due to the geographic dispersion
of the sites on which Respondent's employees work,
Wood is not able to maintain close day-to-day supervi-
sion of their work: "I would try to get to the jobsites at
least twice a week, which didn't happen all the time."
Consequently, the employees were "on an honor system
as to producing." Yet, this had not been a particularly
satisfactory method of operation, since there is evidence
that the employees did not spend their worktime actually
performing work and Wood testified that he had com-
plained about "[m]ost everybody's production at differ-
ent stages."
Indeed, as set forth above, following the first meeting
with the Union in February, which had resulted in resto-
ration of the contractually prescribed method of claiming
hours, Wood had complained to Donlon that Respond-
ent's labor costs were higher than those of its competi-
tors. Inasmuch as the piece rate method of claiming
hours resulted in a certain amount of footage having to
be hung to claim an hour's pay, it was a naturally more
effective method of ensuring that the cost of labor would
be reduced by eliminating the time that slower workers
would need to install that amount of insulation. More-
over, it had the natural tendency of eliminating claims
849
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for time spent loading, unloading, and handling materials,
as well as the time absorbed by traveling between the
shop and jobs and between jobs. In short, it rendered
Respondent more competitive and minimized the need
for Wood to encourage employees to higher production.
Yet, "[ain employer cannot alter mandatory contractual
terms during the effective period of the agreement with-
out the consent of the union.... [and] . . . a repudi-
ation is not excused because the employer . . . was moti-
vated solely by economic necessity." (Citations omitted.)
Los Angeles Marine Hardware Co., etc. v. N.L.R.B., 602
F.2d 1302, 1307 (9th Cir. 1979).
Significantly, notwithstanding his denial, Wood's own
testimony concerning the February and May meetings
between Respondent and the Union tends to confirm the
conclusion that he had instituted a method of reporting
working hours that differed from what was required in
the collective-bargaining agreement. For, he admitted
that both meetings had occurred. He conceded that at
both of them the Union and the employees had com-
plained about the latter not being paid on an hourly basis
and not being paid for loading and travel time. He
agreed that at the May meeting Zeller had instructed
him to reinstate the hourly method of payment-an in-
struction which would have made no sense unless Wood
had, in fact, changed that method. He acknowledged
that at the February meeting no representative of the
Union had agreed that Respondent had been paying
wages on an hourly basis, thereby inferentially acknowl-
edging that the employees' complaints to the Union at
that time had not been invalid.
In the final analysis, while the documentary evidence
is not fully consistent with the testimony of the employ-
ees as to the precise points in time at which Wood had
imposed the piece rate or incentive method and with
regard at the duration of those periods when they had
been obliged to observe changes in the system, that is
not the determinative consideration pertaining to the
issue of whether there had been changes. Inasmuch as
some types of work, i.e., commercial jobs, were assigned
differing production rates than others and in view of the
fact that certain projects were assigned lower production
rates, due to their difficulty, the summaries and work-
cards could not, in any event, be relied upon fully in
light of the absence of complete information, in the
record, as to the nature of all projects encompassed
during the period commencing November 3, 1978. What
is clear, however, is that Wood did admit, during the
May meeting, that he had instituted changes in the
method of computing employees' hours. There is evi-
dence that he had possessed motivation for doing so. It is
undisputed that, on various occasions, the employees had
been instructed to compute their total hours on the basis
of the amount of square footage installed.
Therefore, a preponderance of the evidence does sup-
port the conclusion that there had been occasions when
Respondent changed the contractual method of paying
employees in a manner that deprived them of payment
for actual hours worked installing insulation and, further,
that naturally resulted in a loss of payment for time spent
loading, unloading, handling materials, and traveling be-
tween worksites and between the shop and worksites.
Additionally, the resultant reduction of hours occasioned
by these changes had the concomitant effect of reducing
contributions to the contractually specified funds. There-
fore, I find that a preponderance of the evidence sup-
ports the conclusion that Respondent had altered the
terms and conditions of its collective-bargaining agree-
ment with the Union in violation of Section 8(a)(5) and
(I) of the Act.
That the times at which Respondent changed the
system of computing work hours and that the durations
of those periods cannot be determined with precision on
the basis of this record is of no consequence, in the final
analysis, to the issue of the commission of a violation of
the Act. For, the extent of this type of violation, its
times of occurrence, and the duration of each of those
occurrences are matters pertaining to the amounts of
backpay owing for the violation committed. As was
pointed out in the concurring opinion of Justice Frank-
furter in N.L.R.B. v. Deena Artware, Inc., et al., 361 U.S.
398, 412 (1960), the separation of the finding that an em-
ployer's conduct violated the Act from the determination
of the amounts of backpay owing is "an eminently rea-
sonable method for administering the Act .... " It is
not unusual for issues involving the scope of the remedy
to be deferred to the compliance stage. See, e.g., The
Torrington Company v. N.L.R.B., 545 F.2d 840, 842 (2d
Cir. 1976); The Florsheim Shoe Store Company of Pitts-
burgh, Pennsylvania, et al. v. N.L.R.B., 565 F.2d 1240,
1247 (2d Cir. 1977). Therefore, it is unnecessary at this
point to attempt to delineate the exact dates of the
changes from the contractually specified methods of
computing wages, the durations of those changes, the
precise employees affected thereby and the amounts of
backpay to which each of those employees are entitled
as a result of the changes.
B. The Comments Attributed to Wood and Thompson
As set forth in section III, supra, a number of state-
ments are alleged to have been made by Wood and
Thompson which constituted violations of Section
8(a)(l) of the Act. For example, it is alleged that Re-
spondent had directed threats to employees. As set forth
in section IV, A, supra, Wood had warned that if the
employees did not like hanging 300 feet an hour, they
"could go out the front door .... " Clearly, this consti-
tuted a threat to discharge employees who failed to ob-
serve the unilaterally imposed piece rate system of com-
puting their working hours. Further, it is not disputed
that, in late June or early July, Thompson had warned
Webb that "if you guys keep claiming all of this stocking
and travel time, you are just going to find that there is
suddenly going to be a lack of work." Yet, payment for
performance of stocking and travel was guaranteed to
the employees under the collective-bargaining agreement
and there is no showing that the employees had made
any claims for time that they had not actually done that
work. Therefore, I find that a preponderance of the evi-
dence does support the allegation that Respondent violat-
ed Section 8(a)(l) of the Act by threatening discharge if
employees failed to acquiesce in Respondent's unilateral
changes and sought to claim benefits to which they were
850
ADVANCED INSTALLATIONS, INC.
entitled under Respondent's collective-bargaining agree-
ment with the Union.
With regard to the allegations of interrogation, prior
to the February meeting between Respondent and the
Union, the latter's representatives had spoken to the em-
ployees and, during the discussion, Respondent's change
in the method of computing hours had been mentioned.
It is undisputed that following that discussion Wood had
summoned Beck to the office, had asked what had been
said when the representatives had spoken with the em-
ployees, and had inquired what Beck and the other em-
ployees thought about being paid on an hourly basis. It is
also undisputed that, in July, Wood had asked Mills if
the latter "had filled out a statement in favor of the
union...." On August 24, both Mills and Mergen did
complete such statements, regarding Respondent's
changes in the method of computing hours. Wood, who
testified that Mergen and Mills had volunteered that they
had been asked for statements by the Union,' ° admitted
having asked them if they had done so. Further, he did
not dispute having also inquired what the two employees
had written on their statements and, moreover, having
asked Mills, independently, what Mergen had written on
his statement.
There is also evidence that Thompson had interrogat-
ed employees. In July, Union Representative Jim Kelly
had made three trips to Respondent's Ventura facility to
check on dues. On each of these occasions, Webb had
spoken to Kelly about Respondent's method of comput-
ing the working hours of the employees. It is uncontro-
verted that after each of the first two visits by Kelly,
Thompson had asked Webb "what Kelly was doing
there," and also what had been said by Kelly. On both
occasions, Webb replied merely that his discussions with
Kelly had pertained to dues. After Kelly's third visit, it
is undisputed that Wood had inquired what Kelly had
wanted. Again, Webb replied that the discussion had per-
tained to dues.
"Any interrogation by the employer relating to union
matters presents an ever present danger of coercing em-
ployees in violation of their §7 rights." Texas Industries,
Inc., et al. v. N.L.R.B., 336 F.2d 128, 133 (5th Cir. 1964).
For interrogation can "be a very subtle weapon for inter-
fering with employee rights .... " Ridgewood Manage-
ment Company, Inc. v. N.L.R.B., 410 F.2d 738, 740 (5th
Cir. 1969), cert. denied 396 U.S. 832 (1969). Here Re-
spondent's questioning had been directed to the sub-
stance of communications between employees and their
bargaining representative with regard to their method of
payment. Employees have a right to confer with and to
seek the assistance of their bargaining representative in
disputes with management concerning their work. See,
e.g., Inter-Polymer Industries, Inc. v. N.L.R.B., 480 F.2d
631, 633 (9th Cir. 1973). Respondent has shown no legiti-
mate purpose for seeking to ascertain what the substance
of these conversations had been about. "There is no evi-
dence in the record that [Respondent] assured [the em-
ployees] against reprisal or that [Wood or Thompson]
told them why they were being questioned." Clear Pine
'" Mills denied having ever taken the initiative by telling Wood about
the statement
Mouldings, Inc. v. N.L.R.B., 632 F.2d 721-725 (9th Cir.
1980). Some of the questioning occurred in the office
and, further, the fact that Webb told Thompson and,
then, Wood that Kelly had merely been discussing dues,
when that had not been the fact, serves to indicate
Webb's "natural fears about such questioning." N.L.R.B.
v. Cement Transport, Inc., 490 F.2d 1024, 1028 (6th Cir.
1974), cert. denied 491 U.S. 828 (1974). Finally, these
conversations had not occurred in an atmosphere free of
unfair labor practices, but, as found above and below,
Respondent had been engaging in other unfair labor
practices. Therefore, I find that the questioning by Wood
and Thompson had been coercive and, accordingly, had
violated Section 8(a)(l) of the Act. See, generally, World
Wide Press, Inc., 242 NLRB 346, 363 (1979), and Sour-
dough Sales, Inc., d/b/a Kut Rate Kid and Shop Kwik,
246 NLRB 106, 117 (1979), and cases cited therein.
In a somewhat different area, it is undisputed that
Wood had asked Beck if he and the other employees
liked being paid on an hourly basis and, further, had in-
quired if Mills would prefer working under an incentive
program, providing an hour's pay for every 400 square
feet of insulation installed. But the collective-bargaining
agreement specified the method of computing working
hours and payment therefor. It is the Union, not the em-
ployees, with whom Respondent is obliged to bargain
about these matters. There was, consequently, no legiti-
mate purpose for such questioning and none was ad-
vanced by Respondent, either to the employees ques-
tioned or during the hearing in this proceeding. As found
above, Respondent, on several occasions, unlawfully
changed the contractually prescribed method of comput-
ing hours by instituting a method that related number of
daily hours to total square footage hung each day. Ques-
tioning such as that set forth above was intended as a ve-
hicle for ascertaining the employees' attitudes toward the
adequacy of the contractual method of payment and
their willingness to acquiesce in Respondent's then-con-
templated-and later implemented-changes. Inasmuch
as Respondent was obliged to deal exclusively with the
Union concerning the terms of these employees' employ-
ment, Medo Photo Supply Corporation v. N.LR.B., 321
U.S. 678, 683-684 (1944), and was not free to change
contractual terms without the Union's consent, Los Ange-
les Marine Hardware, supra, such questions constitute an
effort to bypass the Union and to deal directly with the
employees concerning their terms of employment. As
such, they violated Section 8(a)(5) and (1) of the Act.
Finally, in this area, the General Counsel alleges that
Wood had solicited an employee, Robert Liening, to
engage in surveillance of other employees' protected ac-
tivity. The only evidence pertaining to this allegation is
that on one evening, Liening had tape-recorded what
had been said at a union meeting and that the tape re-
corder had been observed in Wood's office on the fol-
lowing morning. Liening was never called to explain
why he had recorded what had been said that night-
whether at Respondent's behest or for some reason per-
sonal to him, possibly relating to internal union affairs
851
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
also discussed at that same meeting." There is no evi-
dence concerning ownership of the tape recorder. If it
belonged to Respondent, the record is equally susceptible
of an inference that Liening had borrowed it, without
disclosing his purpose, as of an inference that Respond-
ent had given it to him to record the words spoken at
the meeting. If it belonged to Liening, the record is as
susceptible to an inference that he had left it in the office
that morning for safekeeping, during the time that he
would be working on a project site, as it is of the infer-
ence that he had brought it to the office to play the re-
cording of the prior evening's events. Furthermore, even
if the latter had occurred, that is still not evidence that
the recording had been made at Wood's behest, as op-
posed to having been proffered voluntarily for him to
listen to the recording. Indeed, there is no evidence that
Wood even had been willing to listen to what had been
recorded. Certainly, so far as the record discloses, no of-
ficial of Respondent ever mentioned any of the matters
discussed at the Union's meeting that night and recorded
by Liening. In these circumstances, I conclude that it
would be sheer speculation to reach the conclusion, on
the basis of this record, that Wood had solicited Liening
to tape record the Union's meeting and, accordingly, I
find that that allegation is not supported by a preponder-
ance of the evidence.
C. The Spring Suspensions and Discharge of Beck
The complaint alleges that in March, Frank Pagano
had been suspended for I day because of his union or
protected concerted activity. The record discloses that,
in late February or early March, Pagano had become
shop steward. It is undisputed that in April Pagano had
asked Wood why his (Wood's) formerly friendly attitude
had changed and that Wood had replied that it had been
because Pagano was now shop steward, not simply a
hanger, and that he (Wood) hated the Union.
However, while the answer admitted that Pagano had
been suspended for I day in March, Wood denied that
there had been a suspension and, more significantly,
Pagano also denied that he had been suspended for 1
day. Pagano did acknowledge that there had been a day
when he had been reprimanded by Wood for low pro-
duction. However, he testified: "I can't remember if I
worked the next day or not, but I was never refused
work." In arguing that it should be concluded that
Pagano had been suspended for 1 day in March, the
General Counsel points to the fact that, at the time of
the hearing, Pagano had been again working for Re-
spondent, had been a friend of Wood, and had testified
that he would do what he had to do to keep his job. Yet,
in a pretrial affidavit, given shortly after he had quit Re-
spondent and thus at a time when he would have had no
concern about loss of employment with Respondent,
" So far as the record discloses, Liening was equally available as a wit-
ness to all parties in this proceeding. See, e.g., Soldier Creek Coal Compa-
ny,. a Division of California Portland Cement Co., 243 NLRB 456, fn. I
(1979); CTS Keene. Inc.. 247 NLRB 1016, fn. 2 (1980). Yet, as in other
areas, the burden of establishing that, as alleged, Wood had solicited
Lieting to engage in this conduct is that of the General Counsel. "The
burden of establishing every element of a violation under the Act is on
the General Counsel." Western Tug and Barge Corporation, 207 NLRB
163, fn 1(1973).
Pagano makes no mention of having been laid off for 1
day in March. To the contrary, while he describes
Wood's reprimand for low production and the fact that
Beck had been laid off for I day due to low footage,
Pagano states: "Other than Beck, I have never heard of
an employee being given a day off for low footage."
Although Respondent's counsel filed an answer admit-
ting that there had been a -day suspension, both Wood
and Pagano, the persons having firsthand knowledge of
what had occurred or had not occurred, denied that any
such act had taken place. This tends to be reinforced by
the substance of Pagano's affidavit, which, in contrast to
his position at the time of the hearing, was given at a
time when he had not been employed by Respondent,
having quit, and when he presumably would not have
been concerned with any adverse effects upon possibili-
ties of continued employment with Respondent. There-
fore, I find that a preponderance of the evidence does
not support the allegation that Pagano had been suspend-
ed for I day because of his union or protected activity.
Eric Beck was a journeyman who had commenced
working for Respondent in July 1978. On the evening of
April 4, Beck had telephoned Thompson to report the
amount of footage that he had hung that day. Upon
hearing Beck's reported footage, it is undisputed that
Thompson had observed that "it was looking good."
Beck, who had been breaking in new employees for
some period of time, then had asked if Thompson could
refrain from sending him (Beck) out with apprentices for
awhile. Thompson replied that Beck "didn't have to
worry about it because I got the next day off." '2 At
Thompson's suggestion, Beck telephoned Wood, who
said that Beck's footage had not been commendable and
that Beck "should bring it up .... " Asked at the hear-
ing why he had laid off Beck for I day, Wood testified:
"Lack of production on one job and I wanted to try
somebody else on that same job to see if we couldn't get
the production."
Several points must be focused with regard to Re-
spondent's defense to Beck's suspension. First, no work-
card was presented at the hearing for Beck's work on
April 4. The summary shows that he had spent 7 hours
installing insulation at Raznick on that day, plus I hour
stocking. So far as the summary discloses, the only previ-
ous time that Beck had worked there was on an unspeci-
fied date during the week of February 26 through March
2. Thus, it is somewhat difficult to perceive how Wood,
before even having learned of Beck's production at Raz-
nick on April 4, which Thompson had characterized as
"looking good," could have made the decision to replace
2 The answer admits the allegation that Beck had been suspended for
I day on April 6. Significantly, the summary for Beck shows that he had
worked each day during the week of April 2 through 6, with 8 hours and
4,576 square feet shown at Raznick on Thursday, April 5. and with 6
hours and 3,053 square feet shown at Griffin on Friday, April 6. There is
a workcard, filled out by Beck. for April 6 and he testified that he had
been suspended on Thursday. not Friday. Accordingly, the correct date
(of his suspension is April 5 While the summary for him shows that he
had worked on April 5, examination of his workcards for April discloses
that none was produced for that date and it is admitted that Beck. unlike
Pagano, had been suspended fIr I day by Wood.
852
ADVANCED INSTALLATIONS, INC.
him on that job in order to ascertain "if we couldn't get
the production."
Second, again using Respondent's summary of Beck's
work, during the month preceding his suspension on
April 5, there had been no consistency in his work as-
signments. Rather, his assignments had been to various
projects: Larwin on March 7 and March 12 through 15;
Greenspan on March 16; Marbrough on March 22 and
23; Arthur Brown on March 14; W & T on April 2:
Bailey on April 3; McKeon on March 5, 22, 26, and 30
and April 2; and Spriggs on March 6, 8, 9, 28, and 29
and April 3. If it had not been the Raznick job to which
Wood had been referring, then it is difficult to ascertain
what other "one job" it had been at which Beck had as-
sertedly displayed a lack of production.
Third, while Wood testified that he had wanted "to
try someone else on that same job to see if we couldn't
get the production," at no point did he specify who that
"someone else" had been. Nor did he describe whether
the "someone else" had, in fact, performed better than
had Beck at whatever "one project" about which Wood
purportedly had been concerned. Significantly, the two
projects on which Beck had worked most frequently
prior to his suspension, McKeon and Spriggs, were ones
to which he was again assigned to work following the
suspension: McKeon on April 9 through 13 and April 16
and Spriggs on Tuesday, April 24.
Finally, Wood testified that he had found Beck's per-
formance and attitude acceptable prior to his discharge
on April 25 and, further, he admitted that, prior to
Beck's suspension, Respondent, or at least Wood, had
never suspended a journeyman for lack of production.
Wood did not explain why, given Beck's acceptable per-
formance and the fact that he had been employed by Re-
spondent for a significant period of time, he had chosen
to alter Respondent's normal procedure and to suspend
Beck.
Within a week of his return to work from the suspen-
sion, Beck had been told by Wood that he had a week to
increase his footage. Beck testified that, on the day prior
to his termination, Wood and Thompson had instructed
him to resume computing his hours on a piece rate basis,
this time using 600 as a divisor. Beck further testified
that at the end of that workday, he had turned in a
workcard claiming 8 hours worked and 2,860 square feet
of insulation installed.'3 That evening, Beck telephoned
Union Representative Kelly, advising him of what had
occurred concerning the change in method of computing
hours. Kelly promised to meet Beck at Respondent's
Ventura facility the next morning. On the following
morning, Kelly and Beck arrived there before Wood.
The only description of what then had occurred, once
Wood did appear, is the somewhat brief account that
Beck was asked to provide: "Bob Wood came in, walked
into his office and came back out and handed me an en-
velope with two payroll checks in it."
Wood testified that he had been the official who had
made the decision to terminate Beck and he denied that
'3 The summary for Beck lists Tuesday, April 24, as the last day that
he worked. It shows that he had claimed 8 hours worked for installing
2.680 square feet of insulation at Spriggs. No workcard for April 24 was
included among those produced by Respondent at the hearing
Beck's union activities had influenced that decision.
Rather, he testified that his decision had been based ex-
clusively upon Beck's "[l]ack of production." In arriving
at that decision, Wood testified that he had compared
Beck's workcards at the Spriggs project with those of
other employees working there and had discovered that
Beck had done less work than those employees: "I
would have three or four other men on the same job that
I would have, take for instance, Mr. Beck on. The three
or four men come in with the same or more production
for the eight hours, where Mr. Beck would be 50 per-
cent, 60 percent. That to me is lack of production."
As was true with regard to Beck's suspension, several
factors pertaining to Wood's explanation of the discharge
decision must be examined. First, as noted above, ac-
cording to Respondent's summary, Beck had worked but
a single day at the Spriggs project following his suspen-
sion. Wood admitted that prior to the discharge, Beck's
production had been acceptable. Consequently, it is
somewhat difficult to find support in the record for
Wood's claim that Beck had produced less at Spriggs
than three or four other employees during the 3-week to
1-month period before he had been discharged.
Second, when called as an adverse witness by the
General Counsel, near the beginning of the hearing,
Wood was asked to identify the employees whose work-
cards had been used in comparison with those of Beck.
In response, Wood testified, "Offhand I don't know."
When he was later called as a witness during Respond-
ent's case-in-chief and was asked the same question,
Wood responded: "Bob Liening, probably Pat Donlon,
Frank Pagano." He added that "there could have been
some others in there too. I can't remember." Then, when
this question about the identities of the other employees
was pursued on cross-examination, the following ex-
changes occurred:
Q. Didn't you mention that Mr. Donlon was one
of the apprentices who had higher footage than Mr.
Beck, on Spriggs?
A. No.
Q. Isn't Mr. Donlon a journeyman?
A. Yes.
Q. Did you use Mr. Donlon's footage at Spriggs,
as a basis for determining whether or not Mr. Beck
was producing up to par?
A. I can't recall.
Q. Isn't it a fact that Mr. Liening was one of the
journeymen whose footage you compared to Mr.
Beck's, in determining that Mr. Beck's footage was
unsatisfactory on the Spriggs job?
A. Possibly.
Q. Do you remember testifying to that effect?
A. I probably did use Bob Liening as a fact, yes.
Q. Isn't it a fact that Mr. Liening only worked on
the Spriggs job three times since January of '79?
A. I don't know.
853
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Third, Wood testified that he had compared Beck's
record at Spriggs with that of other employees who had
worked there during the period 3 weeks to a month
prior to the April 25 termination. According to the sum-
mary for Beck, he had worked at the project on only
four occasions between, taking a broad measuring period,
March 19 and April 24: 6 hours on March 28, when he
had installed 2,720 square feet of insulation; 7 hours on
March 19, when he had installed 2,083 square feet of in-
sulation; 2 hours on April 3, when he had installed 560
square feet of insulation; and, on April 24. No summary
was produced for Liening's work during that period and
examination of the workcards for that period"4 discloses
that none for Liening were included. Accordingly,
Wood's assertion that Liening had outproduced Beck
during that period at Spriggs is uncorroborated. More-
over, Respondent's failure to produce Liening's records
to support its defense gives rise to an inference that, if
produced, those records would not have supported
Wood's testimony concerning their contents. Colorflo
Decorator Products, supra, 228 NLRB at 417. That such
an inference is warranted in this case is confirmed by ex-
amination of the summary for Donlon (Resp. Exh. 2A).
It purportedly lists all of the projects on which he had
worked for Respondent between November 1, 1978, and
September 14, when he had quit. There is not one listing
of any work performed at Spriggs on that summary. Nor
is there any workcard showing that he had worked even
an hour at that project.
Examination of journeyman Pagano's summary shows
that between March 19 and April 20, when he had quit,
Pagano had worked at Spriggs on but four occasions:
March 28, when he had installed 2,225 square feet of in-
sulation in 6 hours; March 30, when he had installed
4,211 square feet of insulation in 8 hours; April 2, when
he had installed 3,869 square feet of insulation in 8 hours;
and, April 3, when he had installed 3,360 square feet of
insulation in 8 hours. While these figures are, for the
most part, better than Beck had achieved at Spriggs,
they are significantly lower than the 550-square-feet-per-
hour standard that Wood had asserted was a reasonable
production figure at Spriggs. 15 Moreover, it is undisputed
that Beck had worked on the second floor of the Spriggs
project, where the work had been harder and where less
footage could be hung in a given time than on the first
floor. Notwithstanding Pagano's failure to satisfy Wood's
production standard, there is no evidence that his termi-
nation had been so much as contemplated. 6
'4 Resp Exhs. 7CCC through BBBB, and 8A through DDDD.
'5 Thus, gauged by that standard, 3,300 square feet should have been
installed in 6 hours, 3,850 square feet in 7 hours, and 4,400 square feet in
8 hours. Measured by Wood's standard, only on March 30 did Pagano's
production come even close to being satisfactory. Furthermore, Pagano's
production of 2,225 square feet in 6 hours on March 28 is less than Beck's
production of 2,720 square feet in that same time on that same date.
16 Examination of the timecards produced by Respondent disclose that
three other employees had worked at Spriggs between March 19 and
April 24. David Mills and Jim Burlingame listed Spriggs on their work-
cards for March 28 through 30 (Resp. Exhs. 7JJJJ, PPPP, and AAAAA),
and for April 3 (Resp. Exh. 8K), when they apparently did not install
any insulation there. However, on April 24, Mills claimed 5-1/2 hours for
installing 1,505 square feet and Webb claimed 6 hours for installing
1,777.50 square feet of insulation (Resp. Exhs. 8BBBB and DDDD, re-
spectively).
Finally, Wood admitted that Respondent had followed
a policy of transferring employees to different sites
whenever they had low footages at particular sites. Yet,
it did not do so in Beck's case. The only explanation for
not having done so advanced by Wood was that "We
had a lot of jobs on the lineup, and very few men with
knowledge enough to know what was going on," and "I
needed his labor." Left unexplained by Wood was how
the termination of Beck, as opposed to an exchange of
sites between Beck and another journeyman who had
been working at another site, accomplished the objective
of servicing all these jobs by the few men with knowl-
edge available to Respondent. Also unexplained was why
Wood had decided, for the very first time, to discharge
an employee for assertedly low production.
In sum, Respondent's defense with respect to Beck's
suspension and discharge was something less than a
model of plausibility and consistency. Wood was not a
convincing witness when testifying concerning these
matters. Some of his assertions, such as his claim that
Liening had produced better than Beck at Spriggs, were
not supported by the production of corroborating docu-
mentary evidence. Others, such as his contention that
Donlon's production at Spriggs had been better than that
of Beck, were contrary to what documentary evidence
was produced. He did not deny that Beck had been
training newly hired employees prior to April 6, thereby
impairing the latter's productivity, and he made no effort
to explain specifically which project had been the one
that had concerned him prior to that suspension. Nor did
Respondent see fit to explain in what manner the suspen-
sion had cured the defect that it claimed had led to that
suspension-specifically, the identity of the "someone
else" who had purportedly been selected to replace
Beck. Overlying all of these matters was the unexplained
question of why a journeyman, whose employment by
Respondent had been relatively lengthy and who had
been an admittedly adequate producer, was abruptly sus-
pended and then discharged for low production when
Respondent had never before adopted such an extreme
penalty for low production and in the face of a policy of
switching low producers to alternative projects. There-
fore, I do not credit Wood's testimony and I conclude
that Respondent has advanced reasons for Beck's suspen-
sion and discharge that are false.
In assessing allegations that conduct directed against
employees had been unlawfully motivated, the crucial in-
quiry must be directed to the state of mind of the official
who had made the decision to effectuate that conduct.
See American Petrofina Company of Texas, 247 NLRB
183, 189 (1980). "If . . . the stated motive for a dis-
charge is false, [the trier of fact] certainly can infer that
there is another motive. More than that, he can infer that
the motive is one that the employer desires to conceal-
an unlawful motive-at least where . . . the surrounding
facts tend to reinforce that inference." Shattuck Denn
Mining Corporation (Iron King Branch) v. N.L.R.B., 362
F.2d 466, 470 (9th Cir. 1966).
The record in this case does show surrounding facts
sufficient to reinforce the inference that Respondent had
been motivated by unlawful considerations when it had
854
ADVANCED INSTALLATIONS. INC.
suspended and later had discharged Beck. As found
above, Respondent had been unhappy with the contrac-
tually prescribed method of determining working hours.
On several occasions, it had made changes in that
method only to be compelled to reinstate the contractual
method when the changes were discovered by the
Union. That Respondent had become sensitive to what
its employees were telling the Union is illustrated by
Wood's and Thompson's questioning of the employees,
as described and found unlawful in section IV, B, supra.
As set forth in that same subsection, Beck had been one
of the employees singled out for such interrogation by
Wood, both as to what the Union's representatives had
been saying to the employees and as to Beck's and the
other employees' feelings about being paid on a straight
hourly basis. In Beck's case, Respondent undertook its
interrogation at an early point-in February. In March,
Wood again questioned Beck's preference as to the
method of computing hours. On both occasions, Beck
stated that he liked, in effect, the method required by
Respondent's collective-bargaining agreement. Wood
conceded that prior to his discharge, Beck had been one
of the few employees who had continually claimed be-
tween 6 and 8 hours of work per day as prescribed by
that agreement. Finally, in view of the sketchy descrip-
tion of the termination conversation, it cannot be said
that Kelly's presence with Beck had led Wood to dis-
charge the latter. However, this discharge occurred on
the day after Beck had been instructed specifically to ob-
serve the piecerate method of computing work hours and
on the morning after Beck had turned in a workcard that
listed his hours in the manner prescribed by the collec-
tive-bargaining agreement.
In light of Respondent's opposition to the contractual
method of claiming hours worked, Beck's expressions of
preference for that method when singled out and ques-
tioned about it by Respondent, Beck's refusal to change
to the piecerate method as instructed by Respondent, and
the false reasons advanced by Respondent for his suspen-
sion and subsequent discharge, a preponderance of the
evidence supports the contention that Beck's suspension
had been intended as a warning to Beck and other em-
ployees of the consequences that could follow if they
continued to insist upon the contractual method of com-
puting worktime and, further, that Beck's discharge had
resulted from his failure to heed that warning-that is,
his refusal to change his method of claiming hours to the
piecerate method imposed by Respondent. An employer
"creates intolerable working conditions" when it com-
pels its employees to accept continued employment on
the basis of terms which have resulted from unilateral
changes in its collective-bargaining agreement. N.L.R.B.
v. Haberman Construction Company, 618 F.2d 296-297
(5th Cir. 1980). A fortiori, suspension or discharge of em-
ployees because of their opposition to such changes and
due to their refusal to abide by them violates Section
8(a)(3) and (1) of the Act. That is what happened with
regard to Beck.
D. The Severances of the Employment Relation
Between Respondent and Webb, Mills. and Mergen
During August, three employees ceased working for
Respondent: Webb, Mills, and Mergen. The General
Counsel contends that they had been terminated by Re-
spondent. Respondent asserts that they had quit. Inas-
much as Webb's cessation of employment with Respond-
ent occurred separately from that of Mills and Mergen,
and occurred earlier in August, consideration will first be
accorded to the events pertaining to him.
Webb had been employed by Respondent as an ap-
prentice since mid-February. During early August, Re-
spondent ceased assigning him work and finally he ac-
cepted employment elsewhere. As set forth in section
IV, B, supra, Webb had been interrogated on three occa-
sions during July, regarding the substance of his conver-
sations with Union Representative Kelly, following the
three occasions when the latter had visited Respondent's
Ventura facility that month. Moreover, it is undisputed
that on two or three occasions when Webb had voiced
complaints about conditions that he had perceived as
being unsafe, Thompson had accused him of being a
"shop disrupter." Additionally, as set forth in section IV,
B, supra, in late June or early July, Thompson had
warned Webb that there was "suddenly going to be a
lack of work" if he and the other employees kept claim-
ing stocking and travel time. In fact, it is uncontroverted
that Respondent's officials had complained regularly to
the employees about their claims for stocking and travel
time. Webb testified, without contradiction, that at some
point in August, Wood had complained about Webb's
claims for stocking and travel time and that he (Webb)
had retorted that he intended "to go by the rules now."''
Webb testified that he had called in sick on one day in
August and that thereafter, though he had called and vis-
ited Respondent's Ventura facility, he had never been as-
signed work. He testified that during his visits he had ob-
served that other, less senior, apprentices were being dis-
patched to projects by Respondent. This testimony was
confirmed by Wood, who testified that at least one first-
stage apprentice and third-stage apprentice Mergen, who
had less seniority than Webb, had been dispatched
during this period. ' According to Wood, the basis for
his decision to assign work to apprentices other than
Webb had been "[p]roduction": "I had a man with less
seniority which is a lower-grade trainee at that time that
was doing more production and that is the man that I
worked." Wood identified Darwin Skelly as having been
the more productive employee that he had dispatched in-
stead of Webb. Later, he added that, in addition to
Skelly, he had also compared Webb's performance with
', Respondent's summary for Webb shows that his last day of work
had been Tuesday. August 7, when he had installed insulation at Bulmer-
Ramm He testified that it had been at that location where he had been
working when Wood had broached him about claiming stocking and
travel time. Significantly, the summary shows that on the prior day Webb
had claimed 6 hours' pay for installing insulation and 2 hours' pay for
travel time In light of the proximity of this claim for ravel time and the
absence of exidence that Webb had orked at Bulmer-Ramm on any
other day in August, I find hat this conxeration had occurred on
Monday. August 6.
' Webb had been classified as a third-stage apprentice at this time
855
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that of Frank Orona'9 and possibly other unidentified
employees. He further testified that he had arrived at his
conclusion through both personal observation and
through comparison of Webb's workcards with those of
Skelly and Orona. Yet, as had been true in the case of
Beck, Wood did not appear to be testifying candidly
when he described his reasons for ceasing to make as-
signments to Webb. Examination of the record confirms
that conclusion.
First, in effect, Wood immediately retracted his asser-
tion that based upon his personal observation Skelly had
been doing more work than had Webb at the time that
he had visited sites where they had been working:
I would go out to a job. I would see Darwin
working where I would see Don Webb drinking a
cup of coffee, smoking a cigarette; not all the time.
There were a lot of times I went out and Darwin
was drinking coffee or smoking cigarettes and Don
Webb was working. But, at the total end of the
week there was more production on Darwin's foot-
age list, his timesheet.
Second, Wood appeared evasive and, in the final anal-
ysis, it was unclear just what period of time had been en-
compassed by his purported comparison of Webb's
workcards with those of Skelly and Orona:
JUDGE PANNIER: Did you just do it for a week,
or did you do it for more than a week?
THE WITNESS: There was more than a week. I
think Darwin had been with us for a couple of
months and Don Webb had been there for three or
four months.
Q. (By Ms. March) What period of time did you
focus on in making the determination?
A. That I can't pinpoint because I have worked
with these men everyday. I know just about what
each one can do and who is going to work than the
next person. If things get slower, then the man that
goes out there and works, stays on the job, puts in
more production during the eight-hour period is
naturally going to get to work more than the guy
that is a slower person or takes more breaks or
whatever.
Q. Also in regard to Mr. Webb, what exactly did
you look at to compare Mr. Webb with Mr. Skelley
[sic]?
A. Production.
Q. Okay, and you said you looked at the time-
cards and jobsite inspection. Is that correct?
(No response)
Okay, and what job were you looking at?
A. I don't know.
Q. You don't know the name of the job?
A. They could be in one week on four, five, six
or seven different jobs.
'9 Although spelled "Corona" in the transcript, the workcards that he
completed show that his correct surname is "Orona."
Q. Okay, so you weren't looking at one particu-
lar job?
A. No.
Third, in contrast to its procedure regarding the Gen-
eral Counsel's employee-witnesses, Respondent never
presented summaries of Orona's and of Skelly's daily
hours and square footage of insulation installed. Nor did
it produce workcards for either man, so that a compari-
son could be made between their production and that of
Webb. Counsel for the General Counsel did introduce
some of the workcards completed by Orona and Skelly.
Examination of these cards discloses that, as a general
proposition, subject to sporadic exceptions, they do not
support Wood's claim that these two apprentices had
been more productive than had been Webb.
In the case of Orona, who had worked only from late
June to early July, 20 the seven workcards produced
(G.C. Exhs. 17J and 18A, D, F, I, J, and L) show that
his greatest footage ever installed, on July 2, had been
4,600 square feet and that it had taken him 8 hours to do
it. Yet, for example, on June 29, Webb had spent the
same amount of time hanging 4,961.46 square feet of in-
sulation (Resp. Exh. IOFFF). Moreover, Orona's other
workcards show that it had taken him 8 hours to install
1,694.5 square feet on July 5, 8 hours to install 1,603.50
square feet on July 6, 6 hours to install 721.5 square feet
on July 9 and 6 hours to install 1,220 square feet on July
10, which appears to have been the last day during
which he had worked for Respondent. Even a cursory
examination of Webb's total footage during that same
period of time shows that Orona had been infinitely less
productive, contrary to Wood's assertion. Thus, while
Webb had installed the same amount of insulation as had
Orona in the same amount of time on July 5, on the fol-
lowing day Webb had installed 1,930.5 square feet in 5
hours (Resp. Exh. 11M). Further, Webb had installed
1,245.00 square feet in 6 hours on July 9 (Resp. Exh.
11R), 3,236.50 in 8 hours on July 10 (Resp. Exh. IIW),
and 2,680.50 square feet in 5 hours on July 11 (Resp.
Exh. 1IAA).
Though more of Skelly's workcards are available than
is the case with Orona and while Skelly had been em-
ployed in August when Respondent had ceased assigning
work to Webb, it cannot be said that the cards show that
there had been a clear difference in production between
those two employees. For example, at no time did Skelly
ever install nearly as much insulation as had Webb on
June 29, when he had installed 4,961.48 square feet in 8
hours (Resp. Exh. 10FFF). So far as the workcards dis-
close, the lowest amount of total square footage that
Webb ever had hung during July and August had been
1,200 square feet on July 18, when he had worked for 4
hours (Resp. Exh. II PP). Yet, on that same date and in
that same amount of time, Skelly had installed but 1,160
square feet of insulation (G.C. Exh. 18T). True, by
choosing differing standards of comparison, it is possible
to formulate comparisons that tend to show that Skelly
"1 At no point did Wood see fit to explain why he had resorted to the
workcards of an employee no longer employed by Respondent in making
his asserted comparison with the wsork that Webb had performed
856
ADVANCED INSTALLATIONS, INC.
had been more productive than had been Webb. Con-
versely, it is also possible to select other standards that
would show Webb to have been the more productive of
these two employees. However, it is not the responsibili-
ty of the trier of fact to patch together evidence to sup-
port a respondent's defense. See, e.g., Tri-State Carpen-
ters & Joiners District Council, 250 NLRB 901 (1980).
Rather, it is Respondent, specifically Wood, who bears
the burden of showing the manner in which the work-
cards of Skelly and Webb had been compared to derive
the conclusion that Skelly had been the more productive
one. This it did not do and, absent that explanation, it
cannot be said that the workcards clearly show that
Webb had been less productive than had been Skelly.
As found above, Respondent had been opposed to ob-
serving the contractually specified method for computing
working hours. It had admittedly changed that method
of computation. It had engaged in unfair labor practices
to compel its employees to accept those changes and had
warned that refusal to observe the changes would lead to
"a lack of work." It had resorted to the extreme unfair
labor practice of discharging Beck on the morning after
he had displayed his opposition to such a change and his
refusal to observe the unlawfully imposed changes.
Webb had been viewed as a "shop disrupter" by Re-
spondent and had been questioned by both Wood and
Thompson concerning his communications with the
Union. He had been warned that lack of work would
follow from continued claims for stocking and travel
time. Yet, he persisted in claiming payment for time
spent traveling and, on his last workday, had said explic-
itly that he intended "to go by the rules now." Thereaf-
ter, Thompson's prediction was fulfilled and Webb was
included among those employees not assigned work on
projects. Ultimately, he accepted employment elsewhere
when he received no further assignments from Respond-
ent. Wood's explanation for the selection of Webb as an
employee to whom work would not be assigned was not
credible, being general, vague, contradictory, largely not
supported by documentary evidence upon which he
claims to have relied, and not consistent with what docu-
mentary evidence has been produced.
In these circumstances, I find that Webb's ultimate
abandonment of further efforts to obtain work from Re-
spondent and his acceptance of employment elsewhere
resulted from Respondent's failure to assign him further
work. A preponderance of the evidence supports the
conclusion that Respondent has stopped assigning him
work due to his opposition to and refusal to abide by Re-
spondent's unlawful changes in the method of computing
working hours provided in its collective-bargaining
agreement with the Union. In these circumstances, I find
that Webb had been constructively discharged in viola-
tion of Section 8(a)(3) and (1) of the Act. See, e.g., Ha-
berman Construction, supra: Electric Machinery Company,
243 NLRB 239, 240 (1979).
With regard to Mills and Mergen, the crucial facts are
largely undisputed. Both of them had worked almost
daily since the beginning of June. As set forth in section
IV,A, supra, on Friday, August 24, these two employees
had given written statements to the Union concerning
the method by which their work hours were being com-
puted. Later that same day, both had been interrogated
by Wood concerning the substance of those statements.
When they reported for work on the following Monday,
August 27, they were told that there was no work avail-
able.2" A similar message was conveyed to them on the
following day. As a result of intervention by Union Rep-
resentative Kelly, according to Wood, they were dis-
patched on Wednesday, August 29. They were able to
work only 4 hours that day and had to cease work be-
cause the project had not been cleaned up and, accord-
ingly, had not been in safe condition for the insulators'
scaffold. Later that day, they told Wood and Thompson
that Kelly had gotten them jobs as framers and, conse-
quently, that they would no longer be working for Re-
spondent. It is uncontroverted that after they had left,
Thompson, the official who fills out the daily work
schedules, had gotten up, smiled and said "All right.
That is what we wanted them to do."
A preponderance of the evidence supports the conclu-
sion that, like Webb, Mills and Mergen had been con-
structively discharged by Respondent. First, it is clear
that Respondent had ceased assigning them work with
the object of compelling them to quit. Wood claimed
that they had not been dispatched to any project because
there had been a "lack of work" and because Respond-
ent had chosen to use only journeymen that week. Yet,
this explanation is contradicted by Thompson's admission
that Respondent had wanted Mills and Mergen to quit.
Moreover, Wood was not a credible witness and, as
found above, his explanations with regard to the depar-
tures of Beck and Webb were vague, largely unsupport-
ed by documentary evidence, and inconsistent with other
evidence presented. In this area, there is no evidence that
Respondent had followed a practice of selecting only
journeymen, in preference to apprentices, whenever
there had been shortages of work. Mills and Mergen had
worked steadily through the summer. There is no evi-
dence that Respondent's situation with respect to proj-
ects had been any different during the week commencing
August 27 than had been the case during the immediate-
ly preceding weeks when those two employees had been
dispatched to projects regularly. In these circumstances,
the evidence does support the conclusion that Respond-
ent had ceased assigning work to Mills and Mergen to
force them to abandon further employment with Re-
spondent.
Second, it is equally clear that the motive for Re-
spondent's desire that Mills and Mergen quit had been
because of their apparent support for the Union's opposi-
tion to Respondent's unlawful changes in the terms of
the collective-bargaining agreement. No other possible
motive for wanting them to quit is disclosed by the
record. On the Friday preceding cessation of work as-
signments to them, Mills and Mergen had disclosed to
Respondent that they had given written statements to the
2' There is no dispute that, during this week, Mergen and Mills each
had worked 4 hours at Raznick's project. performing preliminary work.
The two employees placed this work as having occurred on Monday.
August 27 However, their workcards, attached to the post-hearing stipu-
lation. support Wood's account that they actually had worked there on
Wednesday, August 29
857
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union regarding the method then being followed by Re-
spondent to compute working hours. The fact that they
had chosen to prepare these statements is evidence of
their support for the Union's position. For, it is unlikely
that they would have chosen to aid the Union by giving
such statements if they had not been, at least, sympathet-
ic to the Union's position and, concomitantly, not in
favor of Respondent's changes. As found above, Re-
spondent had directed unfair labor practices against
other employees who had communicated with the Union
and who had favored its position in the dispute with Re-
spondent. Two of these employees had been unlawfully
terminated. The termination of Webb had been accom-
plished in a manner that paralleled that followed with
regard to Mills and Mergen: once dissatisfaction with the
changes had been discerned by Respondent, cessation of
work assignments for "lack of work" had followed. In
these circumstances, the conclusion is warranted that Re-
spondent's desire that Mills and Mergen quit had been
occasioned by their protected activity of supporting the
Union's opposition to Respondent's unlawful changes in
the terms of its collective-bargaining agreement.
Third, the evidence shows that it had been Respond-
ent's unfair labor practices that had led these two em-
ployees to quit. While they had considered the work that
they had been performing to have been something less
than ideal, both employees had worked for Respondent
for significant periods of time without having made any
effort to obtain employment elsewhere. At the time that
they had given the statements to the Union on August
24, they had been warned that they might be subjected
to reprisals and had been promised assistance in obtain-
ing employment elsewhere should that occur. As Mills
testified, with respect to his employment by Respondent,
"I was trying to learn a trade. I didn't want to leave the
trade I was in because I had already paid hundreds of
dollars into the union and I just didn't feel I should let it
go up in smoke." Although Mergen testified that he had
not liked working for Respondent, he also identified the
piecerate method of computing work hours as having
been the cause of his dissatisfaction: "I had to psyche
myself up in the morning just to go to work because I
knew I had to put down so much square feet to get an
eight-hour day and it is hard when you are married."
Therefore, I find that a preponderance of the evidence
establishes that neither Mills nor Mergen would have
quit had it not been for Respondent's unlawful changes
in their method of computing work hours and its refusal
to assign them work because of their apparent support
for the Union's objections to Respondent's failure to ob-
serve the terms of its collective-bargaining agreement. 22
'12 While Mills and Mergen were dispatched to Raznick on August 29,
their assignment there had resulted from the Union's intervention on their
behalf and not as a result of any independent change in Respondent's in-
tention to force them to quit. Thus, it cannot be presumed that Respond-
ent would have resumed assigning them work on succeeding days absent
further efforts by the Union. That, of course, would have meant that the
two employees would have had to seek the Union's assistance on every
succeeding morning to be dispatched. Further, to be able to effectively
assist them. the Union would have had to locate work for them to do on
each of these occasions. as it had done on August 29. in order to be able
to persuade Respondent to dispatch them. In this regard, the fact that the
Raznick project had not been ready for insulation installation on August
29 is not dispositive of the availability of work for Mills and Mergen.
Inasmuch as such conduct by an employer "diminishes
the union's capacity effectively to represent the employ-
ees in the bargaining unit," Haberman Construction,
supra, 618 F.2d at 298, 1 find that these two employees
quit because of the unlawfully intolerable conditions cre-
ated by Respondent and, accordingly, that Mills and
Mergen had been constructively discharged in violation
of Section 8(a)(3) and (1) of the Act.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Advanced Installations, Inc., set forth
above, occurring in connection with its operations de-
scribed in section I, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce
among the several States and tend to lead, and have led,
to labor disputes burdening and obstructing commerce
and the free flow of commerce.
CONCLUSIONS OF LAW
1. Advanced Installations, Inc., is an employer within
the meaning of Section 2(2) of the Act, engaged in com-
merce and in a business affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Ventura County District Council of Carpenters is a
labor organization within the meaning of Section 2(5) of
the Act.
3. By interrogating employees concerning their union
activities and sympathies, and by threatening reprisals
against employees who did not acquiesce in unilateral
changes in the collective-bargaining agreement and who
participated in opposition to those changes, Advanced
Installations, Inc., has violated Section 8(a)(l) of the Act.
4. By suspending for I day and by discharging Eric
James Beck, and by constructively discharging Donald
H. Webb, David Mills, and Patrick Allison Mergen, for
refusing to acquiesce in unilateral changes in the terms of
the collective-bargaining agreement and for participating
in opposing those changes, Advanced Installations, Inc.,
violated Section 8(a)(3) and (1) of the Act.
5. The unit appropriate for collective bargaining is:
All employees employed by employer-members of
The Building Industry Association of California,
Inc., including Advanced Installations, Inc., in the
classifications carpenter, shingler, hardwood floor
worker, millwright, saw filer, table power saw op-
erator, pneumatic nailer or power stapler, wood
fence builder on residential projects, roof loader of
shingles, pile driver foreman, bridge or dock car-
penter and cable splicer, pile driver man-derrick
bargeman, head rockslinger, rockslinger, rock bar-
geman or scowman, cabinet installer and acoustical
installer, excluding office clerical employees, guards
and supervisors as defined by the Act.
6. At all times material, Ventura County District
Council of Carpenters has been the exclusive collective-
For. Respondent concedes that other projects were in progress and the
issue here is Respondent's refusal to assign the two employees to work on
one of them.
858
ADVANCED INSTALLATIONS, INC.
bargaining representative of the employees in the above-
described unit within the meaning of Section 9(a) of the
Act.
7. By bargaining directly with employees in the unit
described in Conclusion of Law 5, above, and by chang-
ing and modifying the terms and conditions of its collec-
tive-bargaining agreement with Ventura County District
Council of Carpenters, covering employees in that unit,
without obtaining that labor organization's consent to
those changes and modifications, at a time when that
agreement could not be reopened, Advanced Installa-
tions, Inc., has violated Section 8(a)(5) and (1) of the
Act.
8. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
9. Advanced Installations, Inc., has not violated the
Act in any manner other than as specified above.
THE REMEDY
Having found that Advanced Installations, Inc., has
engaged in certain unfair labor practices, I shall recom-
mend that it be ordered to cease and desist therefrom,
and that certain affirmative action be taken by it to effec-
tuate the policies of the Act. With regard to the latter, I
shall recommend that Advanced Installations, Inc., be or-
dered to restore the wages, hours, and terms and condi-
tions of employment to the levels required by its collec-
tive-bargaining agreement with Ventura County District
Council of Carpenters, and to make whole its employees
for any losses suffered as a result of its unlawful changes
in the method of computing working hours since No-
vember 1, 1978, with interest on the amounts owing to
be computed in the manner prescribed in Florida Steel
Corporation, 231 NLRB 651 (1977); see also Olympic
Medical Corporation, 250 NLRB 146 (1980). In this re-
spect, Advanced Installations, Inc., will be required to
make whole its employees by transmitting to the trust
funds specified in the collective-bargaining agreement
amounts which would have been contributed had there
been no unlawful changes in the contractual method of
computing the number of hours worked. See,
Merryweather Optical Company, 240 NLRB 1213, 1215
(1979). Advanced Installations, Inc., will also be required
to offer Eric James Beck, Donald H. Webb, David Mills,
and Patrick Allison Mergen immediate reinstatement to
their former positions of employment or, if those posi-
tions no longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights and
privileges, dismissing, if necessary, anyone who may
have been hired or assigned to perform the work that
they had been performing prior to their terminations.
Additionally, Advanced Installations, Inc., will be re-
quired to make whole Beck, Webb, Mills, and Mergen
for any loss of earnings they may have suffered by
reason of their unlawful terminations and for any loss of
earnings that Beck may have suffered by reason of his
unlawful I-day suspension, with backpay to be computed
on a quarterly basis, making deductions for interim earn-
ings, F. W. Woolworth Company, 90 NLRB 289 (1950),
with interest in the manner prescribed in Florida Steel
Corporation, supra; see, generally, Isis Plumbing & Heat-
ing Co., 138 NLRB 716 (1962). enforcement denied on
different grounds 322 F.2d 913 (9th Cir. 1963).
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 23
The Respondent, Advanced Installations, Inc., its offi-
cers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Interrogating employees regarding their union ac-
tivities and sympathies, and threatening employees with
reprisals if they do not acquiesce in unlawful changes in
contractual terms and cease participating in opposition to
those changes.
(b) Suspending, discharging, or otherwise discriminat-
ing against employees with regard to hire or tenure of
employment or any term or condition of employment for
engaging in activities on behalf of a labor organization or
for engaging in activity protected by Section 7 of the
Act.
(c) Changing and refusing to apply terms and condi-
tions of collective-bargaining agreements with Ventura
County District Council of Carpenters to employees in
the appropriate unit set forth in Conclusion of Law 5,
above, absent express written consent of that labor orga-
nization.
(d) Bargaining directly with employees in the bargain-
ing unit heretofore found appropriate in Conclusion of
Law 5, above.
(e) In any other manner interfering with, restraining,
or coercing employees in the exercise of any right guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action deemed neces-
sary to effectuate the policies of the Act:
(a) Upon request, bargain collectively with Ventura
County District Council of Carpenters, as the exclusive
bargaining representative of all employees employed in
the bargaining unit heretofore found appropriate in Con-
clusion of Law 5, above, respecting rates of pay, wages,
hours, or other terms and conditions of employment and,
should any understandings be reached, embody such un-
derstandings in a signed agreement.
(b) Reinstate and observe contractual terms and condi-
tions with respect to employees in the bargaining unit
heretofore found appropriate in Conclusion of Law No.
5, above, and make whole those employees for any losses
in wages and benefits that would have accrued to them
but for the unlawful changes and modifications in con-
tractual terms, in the manner set forth above in the sec-
tion of this Decision entitled "The Remedy."
(c) Offer Eric James Beck, Donald H. Webb, David
Mills, and Patrick Allison Mergen immediate and full re-
instatement to their former positions of employment, dis-
missing, if necessary, anyone who may have been hired
23 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 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.
859
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or assigned to perform the work that they had been per-
forming prior to their unlawful terminations or, if any of
their former positions no longer exist, to substantially
equivalent positions, without prejudice to their seniority
or other rights and privileges, and make them whole for
any loss of pay they may have suffered as a result of the
discrimination practiced against them, in the manner set
forth above in the section entitled "The Remedy."
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of backpay due
under the terms of this Order.
(e) Post at its Ventura, California, facility copies of the
attached notice marked "Appendix."2 4 Copies of said
24 In the event that this 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 read "Posted Pursu-
notice, on forms provided by the Regional Director for
Region 31, after being duly signed by Respondent's au-
thorized representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by Advanced Installations, Inc., to ensure that said no-
tices are not altered, defaced, or covered by any other
material.
(f) Notify the Regional Director for Region 31, in
writing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it
hereby is, dismissed with respect to the allegations that
Respondent suspended Frank Pagano for I day and solic-
ited an employee to engage in surveillance of other em-
ployees' protected activity.
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
860