Scott Lee Guttering Co.

National Labor Relations Board - Board Decisions

Jun 15, 1989

295 N.L.R.B. 497 (N.L.R.B. 1989)

SCOTT LEE GUTTERING CO.
Scott Lee Guttering Co. and Local 36, Sheet Metal
Workers International Association , AFL-CIO.
Case 14-CA-19609
June 15, 1989
DECISION AND ORDER
BY MEMBERS JOHANSEN, HIGGINS, AND
DEVANEY
On February 2, 1989, Administrative Law Judge
Robert W. Leiner issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings , findings,' and
conclusions2 and to adopt the recommended
Order.3
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent , Scott Lee
Guttering Co., Fenton, Missouri, its officers,
' The Respondent has excepted to some of the judge 's credibility find-
ings . The Board 's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd . 188 F.2d 362 (3d Cir 1951).
We have carefully examined the record and find no basis for reversing
the findings.
Additionally, our review of the record reveals no evidence that the
judge prejudged the case , made prejudicial rulings , or demonstrated any
bias Contrary to the Respondent 's contention , we find that the Respond-
ent was accorded due process , including a fair hearing, in all respects.
a We correct the following inadvertent errors in the judge 's decision:
(1) The judge found that Moore 's termination constituted disparate treat-
ment based partly on the fact that another employee , Ries, had also left
the job early but was not admonished or disciplined . In fact , Ries testified
that he was told he would be fired if he walked off the job again We
find, however , that this incident still is evidence of disparate treatment
because Ries was warned and Moore was fired with no warning (2) The
judge found that the timing of Moore 's discharge-in midpay period and
not coextensive with the regular payday-in part supported the General
Counsel 's prima facie case that Moore's discharge was unlawful The
record discloses that the Respondent 's pay period runs from Thursday to
Wednesday, with the employees handing in their timesheets on Thursday
and getting paid on Friday . Moore was discharged on a Thursday which
was the beginning of a pay period Neither of these errors affects our de-
cision, however , because even without these factors we find that the
General Counsel proved that Moore was terminated in violation of Sec.
8(a)(3) and (1).
a We agree with the judge 's Order requiring the Respondent to make
full, timely , and accurate contributions to the fringe benefit funds. Ac-
cording to G.C. Exh 7 , one of the fringe benefits the Respondent is re-
quired to pay into is the Metalworking Industry Fund . Although this
fund was not mentioned by the judge , we find that it is an industry ad-
vancement fund that is a permissive , nonmandatory subject of bargaining,
and that it is not an unfair labor practice for an employer to unilaterally
make a change in a permissive , nonmandatory subject of bargaining.
Finger Lakes Plumbing Co., 254 NLRB 1399 (1981 ). Thus, the Respond-
ent is not required by our order to make contributions to this fund
497
agents, successors , and assigns , shall take the action
set forth in the Order.
Lucinda M. Morris, Esq., for the General Counsel.
Ira M. Potter, Esq., of St. Louis, Missouri , for the Re-
spondent.
David C. Holtzman, Esq. (Schuchat, Cook & Werner), of
St. Louis, Missouri, for the Union.
DECISION
STATEMENT OF THE CASE
ROBERT W. LEINER, Administrative Law Judge. This
matter was heard on November 16 and 17, 1988, in St.
Louis, Missouri , on General Counsel's complaint" alleg-
ing, in substance, that Respondent violated Section
8(a)(1), (3), and (5) of the Act by:
(a) On July 21, 1988, in violation of Section 8(a)(1) of
the Act , telling employee James Moore that he was dis-
charged because he contacted the Union for assistance
involving an alleged contract violation by Respondent.
(b) On July 21, 1988, in violation of Section 8(a)(1)
and (3) of the Act, discharging and thereafter failing and
refusing to reinstate its employee James Moore because
he engaged in protected, concerted activities.
(c) Since about January 21 , 1988, and continuing there-
after, in violation of Section 8(a)(5) of the Act, failing to
comply with the terms of its collective-bargaining agree-
ment with the Union in (1) failing to make full reports to
the Union regarding hours worked by the employees as
required by the collective -bargaining agreement between
Respondent and the Union; and (2) failing to make full
contributions to fringe benefit funds set forth in the col-
lective-bargaining agreement between the Union and Re-
spondent.
Respondent 's timely answer admits certain allegations
of the complaint , denies others, and denies commission of
any unfair labor practices.
At the hearing, all parties were represented by coun-
sel, given full opportunity to call and examine witnesses,
submit oral and written evidence, and to argue on the
record . At the close of the hearing, the parties waived
final argument and reserved the right to submit posthear-
ing briefs . Counsel for the parties thereafter submitted
timely posthearing briefs which have been carefully con-
sidered.
On the entire record , including the brief, and from my
particular observation of the demeanor of the witnesses
as they testified , I make the following
FINDINGS OF FACT
I. RESPONDENT AS STATUTORY EMPLOYER
Respondent , a Missouri corporation with an office and
place of business in Fenton , Missouri , is engaged in the
business of commercial and residential installation of
seamless guttering . In the 12-month period ending
' The complaint is dated August 31, 1988 . The Union 's underlying
charge and amended charge , respectively, were filed and served on Re-
spondent on July 21 and August 26, 1988
295 NLRB No. 57
498 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
August 31 , 1988, in the course of its business operations,
Respondent purchased and received at its Fenton, Mis-
souri facility products , goods, and materials valued in
excess of $50,000 directly from points outside the State
of Missouri . Respondent concedes , and I find , that at all
material times it has been , and is, an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
If. THE UNION AS STATUTORY LABOR ORGANIZATION
The complaint alleges, Respondents admits, and I find,
that the aforementioned Local 36, Sheet Metal Workers
International Association , AFL-CIO (the Union) is a
labor organization within the meaning of Section 2(5) of
the Act.2
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Pleadings and Background
The 'complaint alleges and Respondent admits that on
July 21, 1988 , it discharged its employee James Moore,
but it denies that the reason for discharge was his engag-
ing in concerted activities protected by the Act. Similar-
ly, Respondent denies that on July 21 it told Moore that
he was being discharged because he contacted the Union
for assistance in resolving an alleged contract violation.
At the hearing, however, Respondent admitted, in its
pleadings , that (a) the Union and Respondent are parties
to an 8(f) collective-bargaining relationship embodied in
a collective-bargaining agreement for the 3-year period
May 1, 1986, through April 30, 1989; (b) that the unit of
Respondent 's employees covered by the aforesaid collec-
tive-bargaining agreement constitutes a unit appropriate
for purposes of collective bargaining within the meaning
of Section 9(b) of the Act;3 and (c) that at all material
times, the Union has been the exclusive bargaining repre-
sentative, by virtue of Section 9(a) of the Act, of the em-
ployees in the contractual unit regarding their rates of
pay, wages , hours of employment, and other terms and
conditions of employment.
B. The Employment of James Moore
Moore was hired in September 1986 and, as above
noted, discharged on July 21, 1988. He was hired with-
out first executing an application, although he later filled
one out,4 classified as "assistant" to a journeyman at a
2 Respondent also admits that James J. Morton, its corporate secretary,
at all material times has been and is its supervisor , within the meaning of
Sec 2(11), and its agent within the meaning of Sec. 2 ( 13), of the Act.
s By virtue of sec I of the collective -bargaining agreement (G.C. Exh.
2) the unit is defined , in general, as all employees of Respondent engaged
in the manufacture, fabrication , handling , erection , installation , etc., of
air-conditioning and air-handling systems regardless of the material used
and various other employees in the sheetmetal trade . Since the appropri-
ateness of the unit is admitted and, indeed , specified as that existing in the
contract , a full description of the unit is not deemed necessary.
4In his September 16, 1986 application , Moore failed to disclose a
prior conviction of a misdemeanor for driving while intoxicated . He testi-
fied that he did not know that the offense constituted a "misdemeanor."
He also failed to disclose a conviction for "BAC" (blood alcohol con-
tent). I do not credit Moore 's explanation . I find that his failure to dis-
close was intentional . Respondent 's officers did not testify that Respond-
ent would not have hired Moore in the face of a truthful disclosure of his
record.
wage rate of $5.75 per hour plus contract fringe benefits.
The workday starting time was ordinarily 7 or 7:30 a.m.
to 3:30-4 p.m.; except that, where the workload was par-
ticularly heavy and in the hot summer months, the work-
day often started as early as 5:30 a.m.
Ordinarily two mechanics are required to work simul-
taneously on installing guttering . The two mechanics,
whether two assistants , or an assistant and a journeyman
or, perhaps, two journeymen, need merely hand tools
and a company truck or other conveyance to work at
the jobsite. Around June 1987, Respondent declared to
the Union that it was naming Moore as its journeyman.
At that time , it was also employing an assistant . Accord-
ing to the collective-bargaining agreement , an employer
must employ at least one journeyman (G.C. Exh. 2, art.
VIII, sec. 11, p. 18). Prior to May 1988, the journey-
man's hourly rate of pay was $17.72 per hour plus fringe
benefits for the 7-1/2 hour workday (G.C. Exh. 2, art.
VI, sec. 1, p. 11). Commencing May 1988, the hourly
rate was increased to $18.25 per hour plus fringe bene-
fits. S
C. Wages and Methods of Calculation; Hourly Wage
Rate and "Gross Gutter Pay" Incentive
Respondent's pay period runs from Thursday to
Wednesday of each week with payday on the Friday fol-
lowing completion of the pay period on the preceding
Wednesday.
Although assistants or journeymen from time to time
make service calls, much of Moore's work, as it appears
on this record, was performed on new construction in
housing developments.
The basis for payment of wages to unit employees was
derived from two types of documents submitted to Re-
spondent by the employee. On a regular basis, the em-
ployee would submit (a) a performance sheet or work-
sheet (R. Exh. 4); and (b) a weekly timesheet.
The "performance sheet" specifies the contractor and
invoice of the work worked on; the type and length (in
feet) of gutter actually installed ("hung"); whether there
were any special work features requiring additional cost
on the particular job (downspouts , elbows, miters, flash-
ing, etc .). In addition , on a weekly basis, each employee
submitted a "time sheet ." This would show on a daily
basis within the pay period, when the employee "clocked
in," "clocked out," and the total number of hours each
day on the job, together with the total weekly hours and
the employee's signature.
Each employee submitted these documents to the
office manager who used them to create the employee
weekly payroll sheet (R. Exh. 3(a)).
The weekly payroll sheet shows, inter alia, the total
hours worked by the employee (as shown on the accom-
a It is undisputed that around Christmas 1987, Respondent employed
one journeyman (Moore) and three assistants In January and February,
there apparently was sufficient work only for Moore and one assistant
By March 1988, with an increase of business, Moore was the journeyman
with three or four assistants. In or about May 1988, James Morton named
his brother, John Morton, to be a journeyman, thus making Respondent's
May 1988 complement two journeymen and four assistants These num-
bers persisted through July 1988, when Moore was discharged.
SCOTT LEE GUTTERING CO.
panying employee timesheet signed by the employee (R.
Exh. 3 (b)), together with the hourly rate of the employee
(in the case of James Moore, as a journeyman , for exam-
ple, for the weekly period March 31-April 6, 1988,
$17.72 per hour) or a total gross pay of $354 .40 based on
a submitted 20 hours of work in that weekly pay period.
In addition , the weekly payroll sheet of each employee
shows an additional increment of vacation pay. This va-
cation pay is derived by multiplying the total hours sub-
mitted (again , from the employees ' own, signed weekly
timesheet) against the contract vacation rate of $1.77 per
hour.
Furthermore , the employee 's weekly payroll sheet
shows the Employer 's payment of two types6 of fringe
benefit contributions to the Union , both based on the
number of work hours submitted by the individual em-
ployee : one package of fringes based on the number of
hours submitted at the rate of $3.16 per hour; the other
at the rate of 20 cents per hour . Thus, Respondent's
fringe benefit contributions vary directly with the
number of work hours submitted by each employee.
However, while the employee weekly payroll sheet
(e.g., R. Exh . 3(a)) demonstrates the employees' wages
based on the contractual hourly wage rate, Respondent
actually paid the employees pursuant to a noncontractual
method of payment (an "incentive pay" plan): the great-
er of their contract wages (based on hours worked) or
the incentive plan (based on production ). The Respond-
ent's records (R. Exh . 3(a); G.C. Exh. 4) and the testimo-
ny herein demonstrate that Respondent , under its incen-
tive pay plan (based on production rather than hours
worked) paid its journeymen and assistants at the rate of
20 cents per foot of installed guttering , together with
certain extra payments (for, as above noted , gutters,
downspouts , elbows, flashing, or where the work was
difficult because it required considerable loss of time
going up and down ladders).
This incentive pay plan was based on Respondent's
calculation of "gross gutter pay." Gross gutter pay was
the product of the total gutter footage , including extras,
multiplied by 20 cents per foot . This was ordinarily the
actual gross pay. With deduction of fringe benefits, the
net pay was "gross gutter pay" minus fringe benefits.
But, in practice , the assistants hourly wage rate
($5.75/hour) was sufficiently low so that an assistant's
gross gutter pay was always greater than his hourly rate
even when fringes were added . In short, gross gutter pay
minus fringes was almost always greater than hourly
wages plus fringes.
The mechanics of payroll calculation , however, show
(R. Exh . 3(a)) that the "gross gutter pay," the basis of
payment, was made subject to subtraction of the gross
taxable hourly wage . The difference was shown on the
payroll sheet as the incentive "bonus" (G.C. Exh. 4).
The "bonus" plus the hourly wages, of course, equal the
gross gutter pay. In short, therefore , the mechanics of
actual payment show that the employee submitted the
hours of work on his timesheet; those hours were trans-
6 The fringe benefit contributions are the Welfare Fund , the Local 36
Pension Fund , Vacation Fund , SASMI Fund , National Pension Fund,
National Training Fund , and Local Apprenticeship Fund.
499
mitted to the payroll sheet ; and the hours of work multi-
plied by the hourly rate were then shown as regular
straight time pay. This figure, together with any over-
time and the bonus (gross gutter pay minus regular
straight time pay) formed the basis of the gross weekly
paycheck . From the gross figure were deducted the
FICA, Federal tax withholding, state tax withholding,
and the vacation pay.
Two results flow from the above findings: (1) As
above noted, employee contributions to the union fringe
benefit funds (including the pension and vacation pay)
for the individual employee vary directly with the
number of hours submitted by the employee on his time-
sheet; and (2) with regard to paying the highly paid jour-
neyman,7 in weeks where the gross gutter pay did not
exceed the gross hourly wage rate plus fringe contribu-
tions, the employer was at an economic disadvantage. In
such payroll periods, the cost of production based on the
paid hourly wage rate exceeded the 20-cent-per-foot in-
centive pay, a rate , based on production , more accepta-
ble to Respondent.
In short, in such weeks, production cost , particularly
labor costs, tended to exceed installation profitability. Al-
though Respondent 's chief operations officer, James
Morton, from time to time, attempted to avoid or to
escape from his statements in a pretrial investigatory affi-
davit regarding Respondent 's calculation of the produc-
tivity of its assistants and the journeymen , I find that the
incentive rate of 20 cents per foot (the gross cost of
labor per installed-foot of gutter) was based , according
to Morton 's testimony , upon the employer's calculation
that an average installation rate of 120 feet of gutter
feet/hour was the expected productivity of each mechan-
ic. The figure of 120 feet/hour would therefore show
that a mechanic would ideally install over 700 feet per
day on any given day.
In terms of gross pay, where the workweek is calculat-
ed at 40 hours (the actual workweek under the contract
was 37 hours), and if the gross wage rate was $20.07 per
hour ($18.25 the hourly rate; $1.82 the hourly vacation
addition), the gross weekly wage would be in excess of
$800 per week . It follows from James Morton's testimo-
ny that, with the expected average installation rate of
120 feet per hour at the bonus incentive rate of 20 cents
per foot per mechanic , the resulting figure is a labor cost
of $14 per hour as the incentive rate . But when this
figure is divided into the hourly based weekly pay rate
for journeymen , it demonstrates that it would take in
excess of 33 hours of work to be paid $800 per week if
payment was made on an hourly basis under the con-
tract.
Thus, as shown in the evidence (R. Exh . 3(a)), where
journeyman Moore reported 20 hours of total work, his
direct gross wages ($17.72 per hour plus $1.70 per hour
7 Up through May 1988, the wage rate was $17 72 per hour, thereafter,
it increased to $18 .25 per hour . Since the gross pay also included vaca-
tion pay, the sum of $ 1.77 per hour was added to the earlier journeyman
rate of $17 .72 per hour, the figure of $1.82 per hour was added to the
new journeyman rate of $18 . 25 per hour, thus making the new total gross
hourly rate, $20.07 per hour for journeymen . The assistant's hourly pay
rate was only one-third that of the journeyman.
500 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
vacation pay) equaled only $389 . 80. His gross gutter pay,
the actual pay, for that week , however, was $769.21.
From the gross pay, there was subtracted , for payroll
record purposes , the above gross hourly pay with a re-
sulting "bonus" of $379.41.
Using that pay period (March 31, 1988-April 6, 1988,
R. Exh . 3(a)) as the example , it 'follows that in order to
have gross gutter pay of $769 . 21 for that week , journey-
man Moore must .have installed approximately 3845 feet
at 20 cents per foot . The product of 3845 feet at 20 cents
per foot is approximately $769. But, using Corporate
Secretary James Morton 's testimony that the average 'in-
stallation productivity expected of a mechanic was ap-
proximately 120 feet per hour, the installation of 3845
feet of gutter required in excess of 32 hours (3845 feet
divided by 120 feet per hour).
The relevant , noteworthy figure in Respondent's pay-
roll records (Exh. 3(a), in evidence) is that the total
hours submitted by James Moore for that pay period was
only 20 hours . Again, it was on the basis of the submis-
sion of 20 hours that his weekly wage rate, the size of
the incentive bonus, and Respondent 's contractual contri-
bution of fringes and vacation pay to the various union
funds were all calculated.
The Testimony of James R. Moore
James Moore, promoted to journeyman , changed his
assistant's pay rate of $5.75 per hour to the journeyman
rate of $ 17.72 per hour in the week ending May 20, 1987.
One year later, in the pay period ending June 29, 1988,
his basic journeyman rate was increased , pursuant to the
contract, to $18.25 per hour (G.C. Exh. 9).
In June 1987, when he became a journeyman, Moore
had a conversation with James Morton , Respondent's
corporate secretary and chief operating officer . In that
conversation , Morton told Moore that he wanted Moore
to report fewer hours on his timesheet because of the
high payment of fringe benefits ($6/hour) based on work
hours reported to the benefit funds . When he asked
Morton how many hours Morton wanted .reported on
Moore's timesheets , Morton .told him not over 2© hours
per week . Thereafter , with few exceptions (wherein
Moore reported 24 or 25 hours), he regularly reported
working a maximum of 20 hours per week regardless of
the number of hours worked . James Morton denied
making such a request . On -my observation of James
Morton as a witness and on the quality of his testimony
as appears hereafter , I do not credit his denial.
.Moore testified that he did not tell the Union about
this conversation but, in August 1987, telephoned Bob
Bowling, Local 36 business representative, and told .him
that he was being paid by the foot and not pursuant to
contract scale . He did not tell Bowling that he was un-
derreporting the hours and assumed that Bowling could
figure it out from what he was telling him . Further,
Moore testified that he did -not 'tell Bowling of this con-
versation with Morton because he had just been promot-
ed -to journeyman and was afraid of being fired if he told
Bowling of Morton's demand (and the word got back to
Morton). In any event, Bowling told Moore that he
should be paid according to contract scale and that
Bowling would contact Respondent.
Bowling places the above telephone conversation in
October rather than in June but otherwise corroborates
Moore both in that Moore told him that he was not re-
ceiving his journeyman 's pay and that Bowling told
Moore that he would contact Respondent to straighten
out the matter . Bowling testified that when -he called Re-
spondent to straighten out Moore 's pay as a journeyman,
he was told that Respondent was in -certain negotiations
at that time, but that the matter would be taken care of.
He informed Moore . Bowling heard nothing further
from Moore for 5 months, until March 1-988.
In March 1988, Moore again complained to Bowling
that he was still not getting his hourly contract journey-
man rate . In -this second conversation with Bowling,
Moore again did not mention his conversation with
Morton and testified that he did not contact Bowling be-
tween the first contact (June) and the second (March)
because Bowling had told him that he would be taking
care of the matter.
In any event , with this second call in March 1988,
Bowling told Moore that he would set up a meeting with
Respondent to resolve the matter.
D. The March 1988 Meeting
Bowling set up a meeting at Respondent 's office at 7
a.m., before the employees left for work and , for the first
time, met James Morton. Present were Moore, Bowling,
James Morton , and his brother, John Morton , then em-
ployed as an assistant gutter mechanic by Respondent.8
James Morton did not deny the mutually corrobora-
tive testimony of James Moore and Bob Bowling of the
conversation at their March 1988 meeting in Respond-
ent's office. This credited testimony shows that in that
meeting, Bowling asked Moore whether he was satisfied
the way "things were running ." Moore told the group
that he was not satisfied and that he was getting paid by
the foot and not by the hour. James Morton answered
that he could take care of it and noted that sometimes
employees could not understand that Respondent was
.paying them more -under the .incentive rate than the
hourly rate . Morton then also said that he had been
having trouble with Moore because Moore had no driv-
er's license and that he wanted to -make his brother John
Morton, the journeyman (at 'least one journeyman is re-
quired in every shop covered by the contract) and then
..we won 't need Jimmy [Moore anymore ] if he wants to
be -like this" (Tr. 1.18). Bowling told James Morton that
Moore's driver's license 'situation was Morton 's problem
but that his brother , John Morton, would not become a
journeyman to take Moore's place. James Morton then
answered that he didn 't want to get rid of Moore but
8 While, as above noted, James Morton denied ever asking James
Moore to report only 20 hours per week on his timesheet , he testified
that Moore and John Morton (who often worked together) worked 20
hours .per week on a regular basis, that he had no reason to believe that
,the timesheets submitted by Moore were -incorrect, and that he never
checked either the timesheets or the payment of gross gutter pay to in-
quire whether there was such a discrepancy between gross gutter pay
and "hourly payment at the reported hours as to throw into doubt
Moore's regularly reported 20 hours of work (which reported hours also
formed the basis of Respondent 's fringe contributions and Moore's vaca-
tion pay)
SCOTT LEE GUTTERING CO. 501
merely wanted to operate two trucks with two journey-
men (Tr . 276). At this point John Morton and James
Moore left for work.
E. June 6, 1988
Moore testified that in June, still not receiving his cor-
rect pay, he telephoned Bowling stating that he was still
not getting paid at his hourly journeyman rate . Bowling
answered that he had seen Respondent 's payroll record,
with the recorded hours, and that everything looked all
right based on the paper work. Moore then, for the first
time, said that Morton has asked him not to report more
than 20 hours no matter how many hours he had
worked . Bowling told Moore to keep track of his work-
hours and turn in the right hours keeping a copy of the
timesheets.
Bowling corroborates that when Moore called him in
June 1988, still complaining about not receiving his jour-
neyman 's pay, Bowling told him that he had looked at
Respondent 's worksheets and everything looked okay. It
was at this point that Moore told him that he was not
permitted to turn in more than 20 hours on the work-
sheet . Bowling then testified that he asked if Moore was
saying that if he worked 40-50 hours, he could not turn
in more than 20 hours? Moore told him that this was
true; that it occurred all the time; and that all Respond-
ent's employees were doing the same thing . Bowling
then asked why he had not come to him before with this
story and Moore told him that he was worried about his
job. Bowling told him to start keeping the correct hours
and retain proof of the hours worked.
Bowling telephoned James Morton the next day, June
7, and asked Morton if he was paying the employees cor-
rectly. Morton told him only that he was paying the cor-
rect sums "as of the timesheet ." Bowling testified that he
didn't confront Morton at the time with improper pay-
ment because he had no proof, i .e., he did not have any
timesheets showing contrary hours.
In a week in late June 1988, Moore worked 36 or 37
hours and submitted his timesheet to Office Manager
Shirley Neier on Thursday, the regular day for turning
in the timesheet. On the next day, Friday, Shirley Neier
told him, as he came in to pick up the paycheck:
"Jimmy, fill out a different time sheet before you pick up
your check." Moore told her that the hours he had sub-
mitted were the correct hours but Neier told him to
speak to James Morton . Although Shirley Neier was
called as a witness by Respondent , she did not deny this
conversation . In any event , there is no dispute that this
was the first occasion in Moore's almost 2 years of em-
ployment when a timesheet submitted had not been ac-
cepted . He then turned in a timesheet showing 20 hours
of pay and he was paid that day.
On the Sunday or Monday following the wage pay-
ment based upon Moore's 20-hour submission of the pre-
ceding Friday , Moore again telephoned Bowling and
told him of the failure to receive his correct pay. Bowl-
ing told him that he was working on it and that Moore
should continue to submit timesheets showing the correct
hours.
On Thursday, July 14, Moore submitted his weekly
timesheet for the pay period ending the previous day,
July 13, 1988 (G.C. Exh. 5). The paysheet showed 35-
1/2 hours. Office Manager Shirley Neier rejected the
sheet (because it mistakenly included a day on which
Moore did not work) and then accepted a timesheet sub-
mitted by Moore showing 20 hours of work for the pay
period . On the weekend following this submission,
Moore again called Bowling . Bowling told Moore to
keep the correct timesheets.
F. Tuesday, July 19, 1988
On July 19, Bowling telephoned James Morton. When
Bowling asked him why he didn't take Moore's time-
sheet for the pay period ending July 13, Morton told him
that the timesheet did not note that there had been one
day on which Moore had not worked. The timesheet
was thus incorrect and Morton refused to accept it.
Bowling nevertheless then told Morton that he was
going to take Morton before the Union's executive board
for underreporting of employee hours worked . Bowling
also told Morton that the timesheets were wrong and he
was going to get an audit of Respondent 's records.
G. Wednesday, July 20, 1988
On the next day, July 20 , following Bowling's threat
to bring Respondent before the executive board and get
an audit, Morton telephoned Bowling . He told Bowling
that he was laying off Moore because Moore had no
driver's license and was missing work. He told Bowling
that he wanted a new journeyman . Bowling answered
that Morton had brought up the matter of Moore not
having a driver's license in March and didn't lay him off
at that time ; that Morton knew that Moore was working
with Bowling on the problem of the correction of hours;
and if Morton was laying Moore off because Moore was
working with Bowling on correcting the hours worked
for Respondent, Respondent couldn 't lay him off for that
reason . Morton answered that in any event he wanted a
new journeyman, he could lay off any journeyman he
wanted to, and said "just send me another journeyman."
Moore had spent the morning of July 20 with his den-
tist. It is not disputed that Respondent does not require a
doctor's note in order to excuse an absence . Further-
more, in spite of Office Manager Shirley Neier appearing
as a witness on behalf of Respondent , she did not deny
James Moore's testimony that he had told her 1 month
before the dental appointment that he would take off
July 20; that he repeated this same statement to her 1
week before the appointment; and, on the day before he
took off (on July 19), he told her that he would be
absent the next day visiting the dentist . I see no reason
not to credit Moore's uncontradicted testimony . He also
testified that he did not feel well enough to return to
work that afternoon when he had finished with the den-
tist and decided to go home . In any event, Moore testi-
fied that he did, in fact, telephone the office and there
was no answer when he telephoned with regard to his
not coming in to work after visiting the dentist. Morton
denied knowledge of such a phone call. On the basis of
my ultimate disposition of the case , I need not resolve
the issue of whether Moore telephoned Respondent.
502 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
H. Thursday, July 21, 1988
Moore turned in his timesheet in the early morning of
Thursday, July 21, 1988, showing the correct hours
worked, 25 hours. The figure of 25 hours resulted from
his absence on the previous day (Wednesday ) due to the
dental appointment . When he turned in the timesheet,
James Morton asked him to step into Respondent's
office. At that point, Morton had Moore's sheet showing
25 hours in his hand . He told Moore : "Let's have a talk."
Morton then told Moore that he had been "more than
fair" with Moore ; that he had made Moore a journey-
man; that Moore was ungrateful because he would "turn
me into the [union] hall every other week"; that Moore
was absent from work the day before (Moore told him
that he had had a dental appointment); that Moore had
no driver 's license and that Morton would see Moore "in
court." Moore asked him to pay him his 2 hours' "show-
up pay" for Thursday. Morton did so and Moore left.
I. Monday, July 25, 1988
On Monday , July 25, Morton telephoned Bowling and
told him that he had received a "notice" [charge] from
the NLRB ; that Moore had been working at other places
(moonlighting) and missing work with Respondent and
that Moore had been smoking marijuana while employed
at Respondent . Bowling testified that the problem of
Moore smoking marijuana on the job while employed by
Respondent and working at other places while in Re-
spondent 's employ was not brought up in the July 20
conversation (wherein Morton gave reasons for terminat-
ing Moore) but was brought up for the first time by
Morton in this July 25 telephone call, i.e ., after the dis-
charge . When Bowling then told Morton that the Union
was going to bring Respondent before the executive
board , Morton said that other employers were doing the
same thing , "cheating around" by paying employees by
the foot . Morton told Bowling that he wanted these
other employers brought before the executive board to
explain their methods of payment to employees. Mor-
ton's extensive testimony did not deny this conversation,
particularly his use of the expression that employers
were "cheating around" by paying employees by the
foot rather than by the hour.
J. The Testimony of Glen E. Reed and John L. Ries,
Respondent 's Mechanics
1. Glen E. Reed
Reed, currently employed by Respondent as an assist-
ant performing guttering installation, worked for a 2- to
3-week period with Moore before Moore was dis-
charged. With regard to reporting his working hours on
his timesheet, Reed reported fewer hours than he actual-
ly worked about 90 percent of the time. He testified that
the fewer hours he reported the less the deductions
would be from his pay because Respondent's fund contri-
butions are deducted from his gross gutter pay. His ordi-
nary workweek was 37-1/2 hours or more, sometimes 40
hours.
On cross-examination by Respondent, Reed testified
that he and Moore would leave the job early because of
rain ; that Moore told him that he worked at home and
on weekends but not on other jobs while employed by
Respondent.
Reed also testified before the executive board. The
minute shows he told the executive board that he
worked 20 hours per week. Reed testified that the
minute was inaccurate (compare G.C. Exh . 8 with Tr.
337-338).
2. John L. Ries
Ries testified that he underreported his hours perhaps
60 percent of the time . He, like Reed , underreported the
hours because such underreporting resulted in less de-
ductions from his gross gutter pay based on fringe bene-
fits. Ries' pretrial affidavit showed that he properly re-
ported his hours 75 percent of the time (Tr. 348).
K. Respondent's Defenses
1. The testimony of James J. Morton; "Temper
tantrums" and the dental appointment
At the beginning of Morton's testimony , called as a
witness for Respondent, he testified that he fired Moore
because of Moore's bad attitude ; his not "showing up"
for work; and his lack of a driver's license.
With regard to Moore's bad attitude , he said that
Moore had a certain "air about himself" ; that there was
personal friction with the employees and with the office
manager, Shirley Neier . In particular , he testified that
Moore, on a regular basis, had "temper tantrums" and
was constantly complaining to other employees and the
office manager , sometime in a disruptive and heated fash-
ion. Morton testified that this defect developed in late
1987 and continued thereafter . In response to counsel's
question as to why he did not discharge Moore at that
time, rather than 6 months later , on July 21, 1988,
Morton answered that he did not earlier discharge
Moore because "good men are hard to come by." In any
event, according to Morton , Moore's bad conduct and
verbal abuse became progressively worse particularly
when Moore was not getting his way on job assignments
(i.e., to jobs where installation was expected to be easy
and therefore more highly remunerative). Morton's only
response to Moore's alleged worsening misconduct in the
period between late 1987 and July 21, 1988, was to shut
his door and shut the problem out. He never mentioned
it to Moore.
Shirley Neier testified that, as office manager since
July 1987, she prepares the payroll from timesheets and
worksheets submitted by the employees; that she reports
to the Union the timesheet hours submitted by the em-
ployees; and that she has no reason to question the work
hours submitted by the employees . However, she did not
deny any of Moore's otherwise credible testimony con-
cerning the circumstances surrounding her rejection of
his timesheets.
She also testified that it was she who determined
which employees got particular work; and that Moore, a
good worker , complained if things were not going right
for him, particularly if he didn't get jobs which would
pay more because they were easy to execute . She further
SCOTT LEE GUTTERING CO. 503
testified that while Moore's complaints made it hard to
schedule jobs because John Morton (brother of James
Morton) and James Moore were getting all the easy
work , she did not consistently give them the easier work.
Moore himself admitted that on three occasions in April,
May, and June (Tr. 209) 1988, he refused to work on
low-paying jobs . James Morton knew of it and Moore
was assigned to higher paying work (Tr. 210). Morton,
on this record , failed to admonish Moore for these refus-
als to work.
As above noted, Neier also did not deny that Moore,
on several occasions prior to the July 20 dental appoint-
ment, told her of his expected absence because of the
dental appointment . James Morton testified only that on
the day he discharged Moore, he asked Neir if Moore
had called in regarding the dental appointment and it
was only Morton who said that Neier told him that
Moore had not called in. I find , nevertheless , that at all
material prior times, Office Manager Neier knew that
Moore asserted that he would be absent on July 20 due
to a dental appointment.
It was on cross-examination that Neier admitted that
she was James Morton's mother-in-law.
2. Failure to have a driver's license; the "straw that
broke the camel's back"
Mechanics drive company vehicles to jobsites. Two
mechancis are ordinarily in each vehicle since two me-
chanics are required for gutter installation.
James Morton testified that Respondent 's present in-
surance carrier requires that company vehicles be driven
by employees with chauffeur licenses . When Respondent
changed insurance companies in December 1987, the car-
rier asked Respondent for all employees to submit their
driver's licenses to Respondent . Employees submitted
copies of their licenses to Shirley Neier but Moore, ac-
cording to Morton , always excused his failure to produce
a driver's license . In particular , Morton testified that he
heard of these excuses from Shirley Neier and she made
constant , unsuccessful requests after December 1987 for
copies of Moore's license . Moore, according to Morton,
told Neier that he left the license at home or with a girl-
friend . Morton therefore knew of these continued ex-
cuses . He also testified that he first learned, in early June
1988 , that Moore, in fact , had no license. He also testi-
fied that he first learned that Moore had no license the
day before he fired Moore on July 21. On the day before
he fired Moore, Morton testified that he telephoned the
police who then told Morton that Moore had a serious
driving record problem and that Moore's license had
been revoked . Morton testified that Moore's failure to
have a license "cramped" Respondent 's service to cus-
tomers because Moore, unable to lawfully drive, could
not travel alone to a job.
As above noted, as early as the March 1988 meeting
(wherein Moore, James Morton , his brother , John, and
Bowling were present) Morton told Bowling that Moore
had no driver's license . Bowling's testimony was not that
Morton said that Moore failed to prove he had a valid
license ; rather, that Moore has no driver 's license (Tr.
275-276, 288). It was in this conversation that Morton
threatened to get "rid of Moore" and have his brother,
John Morton , as the journeyman , but Bowling told
Morton that he could not name John Morton as a jour-
neyman in order to get rid of Moore . In any event, on
July 20, when Morton telephoned Bowling to tell him
that he was discharging Moore because, inter alia, Moore
had no license, Bowling's uncontradicted and credited
testimony is that he told Morton "that was the same
thing [you] brought up in March . . . [you] kept Jimmy
Moore all those months . It didn't seem to be a big prob-
lem then" (Tr. 288).
Moore admitted having been convicted of driving
while intoxicated and convicted of "blood alcohol con-
tent ." He also testified , without contradiction, and I
credit him, that (1) he told Shirley Neier, in the fall of
1987 that he had no license ; (2) that at the March 1988
meeting with Bowling and James Morton , John Morton
told Moore that Respondent did not have to pay Moore
the contract wage scale because Moore had no driver's
license ; and (3) that since Moore did not drive a truck
from the fall of 1987 until his discharge in July 1988, it
was clear to Moore that James Morton knew that he had
no license as early as the fall of 1987, but certainly
before this March 1988 meeting . I agree.
On cross-examination , James Morton testified that he
knew since December 1987 (Tr. 503) that Moore was
making excuses with regard to his having failed to
submit a driver's license . When asked why he waited
until July 21 to discharge Morton for that failure, Moore
answered that he wanted to be sure in his own mind that
his "suspicions" (that Moore had no license) were cor-
rect. He further testified (in response to the question
why he called the police on July 20, the day before dis-
charging Moore), that he had to justify his decision to
discharge Moore for failure to have a license, on an ab-
solute basis that Moore was lying about the license; and
that it was this July 20 information from the police that
was the "straw that broke the camel's back."
As noted above , Morton testified that he telephoned
the police the day before he discharged Moore (i.e., on
July 20) when the police told him that Moore 's license
had indeed been revoked . This police information of July
20, testified Morton, was the straw that broke the
camel's back and he discharged Moore the next day. The
General Counsel then confronted Morton with his pre-
trial statement wherein Morton swore that he telephoned
the police regarding Moore's license in May rather than
in July . Morton then admitted that he telephoned the
police in May 1988 and not in July.
L. The "Moonlighting" Problem; Leaving Work Early
The testimony of Glen E. Reed is that Moore told him
that Moore worked at home on weekends but not other
places.
John E. Morton, brother of James Morton, testified
that he worked with James Moore almost every day for
more than a year; that Moore, in May and June 1988,
told him that he worked weekends and sometimes during
the week in Potosi , Missouri , apparently on private jobs,
for a guy named "Chopper" who paid him in cash. John
Morton also testified that on several occasions Moore
told him that he was not feeling well and left early from
504 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Respondent 's jobs . Since gutter hanging requires two
men to work the job, this Moore conduct caused John
Morton to go home early and leave the job. John
Morton further testified he told this to his brother in
mid-June 1988; that Moore was working for someone
else and was "messing up" John Morton 's workday by
leaving early once or twice a week . In John Morton's
opinion , based on his daily contact with Moore, he did
not believe that Moore "told the truth all the time."
Terrance J. Scott, an officer and shareholder in Re-
spondent , testified that he is at Respondent 's premises on
an infrequent basis, perhaps once a month.
In May or June 1988, about 7 a.m., James Moore vis-
ited him in his office , about two blocks away from Re-
spondent's office. Scott saw that Moore was angry.
Moore told him that employee John L. Ries should be
fired and that James Morton had not done so . Scott told
Moore that he knew nothing about it but would speak to
James Morton about the matter . When Scott spoke to
James Morton thereafter , Morton told Scott that Moore
was angry because Ries had left a job early and it had
"messed up" Moore's workday . Moore had previously
been insistent (to Morton) that Ries should be fired but
Morton had not fired Ries . Morton told Scott that
Moore was so angry that he had failed to return to work
that day.
On allegedly subsequent occasions thereafter, James
Morton, according to Scott, told Scott of "problems"
with Moore . Just what these "problems" were do not
appear in Scott's testimony ; but when Scott testified that
he told Morton that he might as well fire Moore,
Morton told him that he could not fire Moore at that
time . Scott testified that he could not remember that
James Morton complained of any union -based complaints
that he had with Moore.
With regard to moonlighting and leaving work early,
Moore testified that on one occasion in June 1988, he left
work because of illness and went home early . I do not
credit his testimony with regard to illness because I
credit his further testimony that he went home early be-
cause he was angry over "all the bull." He further testi-
fied that, in this June 1988 incident , he was angry with
James Morton who refused to fire John Ries ; and that he
had spoken to Scott about the matter.9
With further regard to this June 1988 incident (where
Moore not only walked off the job , angry with Ries for
messing up Moore's workday by leaving early, but then
angrily confronted both James Morton and Respondent's
owner, Terrance Scott), Moore then applied for work
with another employer and gave James Morton as refer-
ence for the other job. Contrary to James Morton's testi-
mony that Moore then called him (and told him that he
had applied for another job but said he would like to
return to work for Respondent , to which Morton an-
swered : "leave, if you can 't be consistent"), I credit
Moore's version that, actually , James Morton telephoned
Moore . When James Morton telephoned Moore, regard-
9 Moore admitted that in the last 2 months of his employemnt, May
through July 1988, he missed work because of bad weather . He further
testified that he had never been admonished or disciplined for taking time
off, missing work , or leaving because of bad weather . I credit the testi-
mony
ing Moore 's looking for another job , he asked Moore to
remain with Respondent as an employee and told Moore:
"I don 't want to lose you ." I specifically discredit Mor-
ton's testimony that it was Moore who initiated the
phone calls (actually, Moore returned Morton's call) and
I discredit Morton's testimony that he admonished
Moore to quit if he could not be a consistent employee.
I also note that , on cross-examination by the Charging
Party, Morton admitted that he had earlier testified that
he had terminated Moore for three reasons : the attitude
problem ; his failure to show up for work on July 20; and
his failure to have a driver's license. Morton, however,
admitted that a "reason" advanced in his further testimo-
ny (that Moore's having left work early "on several oc-
casions" supported an additional reason for discharge)
was a "reason" not advanced in the prior testimony.
Morton admitted that he had never confronted Moore
for having left various jobs early . Morton did not deny
Bowling's testimony ; that Morton, after discharging
Moore, complained that Moore smoked marijuana on the
job.
Regarding the discharge interview with Moore, James
Morton testified that on July 20, 1988 , he decided, on
that day, to fire Moore because he was tired of Moore's
"inconsistency ." As previously noted , Morton testified
that he asked Shirley Neier whether Moore had called in
to explain his absence on that day and Morton testified
that Neier told him that Moore had not called in. I have
specifically discredited Morton 's testimony on this point.
Moore, on three prior occasions , told Neier of his July
20 dental appointment, the last occasion being 1 day
before the July 20 dental appointment . I specifically dis-
credit Morton 's testimony that she had told Morton that
Moore had failed to "call in ." Even if this were techni-
cally true (Moore testified that when he called Respond-
ent, there was no answer ) the inference Respondent sug-
gests is that Neier failed to tell Morton that Moore was
absent at a dental appointment . I cannot and do not
credit such testimony or draw such an inference. Thus
even if Moore did not call in, Neier knew where he was;
and when Morton asked her whether Moore had called
in, she would have told him where he was. To find oth-
erwise, on this record , is to give weight to Morton's du-
plicitous question rather than Neier's unquestioned
knowledge concerning Moore's whereabouts.
In any event , on that same day, Morton , allegedly
upset by Moore's "inconsistency" and his failing to "call
in" regarding the dental appointment, telephoned Union
Agent Bowling and told Bowling that he was going to
discharge Moore. He told Bowling that he had "had it"
with Moore because Respondent 's work schedule had
been thrown off by Moore's "inconsistency ." Although I
credit his testimony that he told Bowling that he was
terminating Moore because Moore had no driver's li-
cense and had been "missing work," I do not credit his
testimony that Bowling told Morton that Morton did not
have to "justify" the discharge and did not even have to
call Bowling regarding the matter.
On the next day, July 21, when he terminated Moore,
he asked Moore why he had not called in the previous
day. Morton admitted that Moore told him that he had
SCOTT LEE GUTTERING CO. 505
had a dental appointment and had told Shirley Neier (Tr.
501). There is no suggestion in Morton 's testimony that
he then told Moore that he had asked Shirley Neier and
Shirley Neier had denied knowledge of any dental ap-
pointment (Tr. 499-500). I regard this as evidence that
Morton , in fact, knew from Shirley Neier that Moore
had had a dental appointment that morning . Rather than
confronting Moore with his mother -in-law , Neier, on the
point, Morton abandoned that issue and shifted to an-
other ground : he asked Moore why Moore had not come
in later for work. When Moore told him that there was
not much use in his doing so, Morton told Moore that he
had "had it" with Moore 's "inconsistency"; that Re-
spondent had been fair to Moore as an employer but was
not getting 100 percent out of Moore as an employee. To
the extent that his testimony omits the other elements in
Moore's version of the discharge interview , I credit
Moore 's testimony.
Morton admitted that in his July 20 conversation with
Bowling , Bowling warned him that he had raised the
problem of Moore's failure to have a driver 's license in
March; but Morton said that he told Bowling that he
could not let Moore drive without a license . It is clear,
however, that Morton knew of this condition as early as
January 1988 (probably in later 1987) when Respondent
switched insurance companies , the new insurance compa-
ny demanded copies of all driver's licenses of employees
driving Respondent 's vehicles, and Shirley Neier, almost
on a daily basis, commencing December 1987, to Mor-
ton's knowledge , asked Moore for his license and was
met only with excuses (Tr. 490-491). As above noted, by
March 1988 , he told Bowling that he wanted to get rid
of Moore because Moore had no license, but backed off
from the threat.
Morton further testified that he regarded Moore as a
constant complainer , disruptive to employees, and that
his complaints to the Union were disruptive and unjusti-
fied because Moore was making wages under the gross
gutter pay incentive system at least as great as his hourly
rate.
Lastly, Morton testified that he knew , as early as Feb-
ruary-March 1988, that his brother and Moore were re-
porting working 20 hours per week and he never there-
after asked Moore to work more hours per day. Indeed,
he promoted his brother to journeyman when he was re-
porting only 4 hours' work per day . Knowing as early as
February 1987 that Moore and John Morton were re-
porting only 20 hours' work per week, James Morton
could not answer why he did not demand that they
work more hours (the collective-bargaining agreement
permits a 37-hour, straight-time week) (Tr. 543-548). He
admitted not only that a 4-hour workday is not a reason-
able day's work (Tr. 544) but that it would have been
advantageous if they worked 35 to 40 hours (Tr. 547).
He never asked them to do so because it didn't "alarm"
him (Tr. 547).
Discussion and Conclusion
A. Violation of Section 8(a)(1) of the Act
I credit the testimony of James Moore and, to the
extent that James Morton contradicted Moore's testimo-
ny, I discredit Morton: that on July 21, 1988, in the
morning discharge interview , James Morton told Moore
that among the reasons for the discharge was that: "you
turn me into the [union] Hall every other week ." Thus,
on this credited testimony , Supervisor Morton was tell-
ing an employee that the employee 's complaining to the
Union over Respondent 's alleged failure to pay him ac-
cording to contract scale was a basis for Respondent dis-
cipline . Such a statement violates Section 8 (a)(1) of the
Act because , I conclude, Moore's repeated complaint
was a reasonable and honest assertion of a right con-
tained in a collective-bargaining agreement . This is a
concerted activity protected by Section 7 of the Act.
The assertion need not be correct, only reasonable and
honest. NLRB v. City Disposal Systems, 465 U.S. 822
(1984); SPM Communications, 291 NLRB 1177 ( 1988).
B. The July 21 Discharge of James Moore as a
Violation of Section 8(a)(1) and (3) of the Act
1. The prima facie case
(1) I have already found that during the July 21 dis-
charge interview , Supervisor James Morton told James
Moore that one of the reasons for the discharge was
Moore's complaining to the Union "every other week"
regarding Respondent 's conduct toward him. Such a
statement , together with Morton 's March and June
phone conversations and meetings with Union Agent
Bowling and Moore, indicates both knowledge of Moore's
engaging in union activities protected by Section 7 of the
Act and a discriminatory motive which, prima facie, is
unlawful as a reason for discipline within the meaning of
Section 8(a)(3) of the Act.
In particular, I find that what actually precipitated the
July 21 discharge was Morton's July 19 telephone con-
versation with Bowling wherein Bowling not only
threatened to take Respondent before the executive
board, but to get an audit of Respondent's books. On the
day following this phone call (July 20), Morton tele-
phoned Bowling telling him that he was discharging
Moore. Moreover on Morton 's own testimony, he re-
garded Moore's constant complaining to the Union as
unjustified (Tr. 530) because of Moore receiving wages
under the incentive pay system , higher than contract
wages based on reported hours . I conclude that Morton's
statement with regard to Moore's complaints show that
Morton was retaliating against Moore for these com-
plaints.
To the extent Respondent argues that Respondent was
without knowledge of Moore's union activities it bases
its assertion that Respondent did not know that Moore's
complaints related to "underreporting of hours" (Br. p.
13). But that is too narrow. Morton was concerned with
Moore's repeated complaints to the Union over wages
and contract scale, regardless of the underreporting of
hours . Respondent nevertheless actually knew of
Moore's complaint of underreporting hours because
Bowling told Morton of this specific complaint the day
before the discharge. This threatened audit precipitated
the discharge (Tr. 284-286). The audit would reveal
widespread underreporting of hours, consequent failing
506 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
to properly contribute to the fringe benefit funds, under
the contract, and failing to pay Moore his journeyman's
rate when this was greater that the incentive rate.
(2) In addition , it must be noted that the discharge, al-
legedly based on Moore 's longstanding misconduct, oc-
curred in the middle of a pay period and not coextensive
with any payday . Thus, something other than chronic
misconduct appears to have precipitated the discharge.
Timing of the sudden discharge , coinciding with Bowl-
ing's audit threat , is thus unfavorable to Respondent's ar-
gument that Moore's longstanding failings led to the dis-
charge.
(3) In further support of the prima facie case , there is
Moore's uncontradicted testimony, which I credit, that
he was never warned for any misconduct whatsoever, be
it leaving work early, moonlighting , failure to show up
for work , failure to have a driver 's license, or being a
disruptive influence by his constant complaining about
not receiving choice job assignments (his "attitude").
(4) As additional support of the prima facie case, Su-
pervisor Morton testified that he did not earlier dis-
charge Moore (because of Moore's consistent and wors-
ening disruptive conduct all through 1987 and 1988) be-
cause "good men are hard to come by." Office Manager
Shirley Neier confirmed that Moore was a good worker.
Thereafter, Moore's conduct allegedly got even worse
with verbal abuse and moonlighting on a frequent basis.
This never lead to Morton admonishing Moore, in any
way, for this or other misconduct , much less to a dis-
charge.
(5) Moreover , when, in June Morton discovered that
Moore, having refused to return to work , was looking
for other employment , Morton did not jump at the op-
portunity to terminate this chronic malcontent, but suc-
cessfully urged Moore to remain with Respondent.
I therefore conclude, on the basis of James Morton's
knowledge of Moore's repeated complaining to the Union
regarding Respondent 's alleged failure to pay him hourly
contract scale, the timing of the discharge in midpay
period and not coextensive with the regular payday; the
failure to admonish Moore at any time or for any reason
for alleged misconduct prior to this time ; the apparent
retaliatory motive in the discharge because of Moore's
complaining to the Union , Morton 's admission that he re-
garded Moore 's repeated complaints to the Union to be
unjustified, failing to terminate Moore in June when
Moore sought other employment , and the unanimity of
opinion that Moore was a good mechanic , I conclude
that the General Counsel has proved a prima facie case
that Morton 's July 21 , 1988 discharge of Moore violated
Section 8(a)(1) and (3) of the Act. Wright Line, 251
NLRB 1093 (1980), enfd . 662 F.2d 899 ( 1st Cir. 1981),
cert. denied 455 U.S. 989 (1982), approved in NLRB v.
Transportation Management Corp., 462 U . S. 393 ( 1983).10
10 Again under NLRB v. City Disposal Systems, 465 U .S 822 (1984);
SPM Communications, 291 NLRB 1177 (1988), it is irrelevant whether
Moore 's complaints to the Union were justified in terms of a proper inter-
pretation of Moore 's contractual rights under the collective -bargaining
agreement . It is enough to gain Sec . 7 protection that Moore 's complaints
were made in good faith . They were made in good faith and were rea-
sonable.
2. Respondent 's defenses to the alleged unlawful
discharge of James Moore
(A) Failure to have a driver 's license : ( 1) Moore's failure
to have a driver's license was mentioned by Morton as a
principal reason for the discharge in his conversations
with Moore and Bowling on July 20 and 21. At least
since December 1987, when Respondent switched insur-
ance companies (and the new insurance company de-
manded proof of drivers' licenses for drivers of Respond-
ent's vehicles) Morton testified that he knew that Moore
was making repeated excuses for failing to turn in a copy
of his driver's license (Tr. 503). It is clear , therefore, that
for 7 months prior to discharge , James Morton knew
that Moore had no driver 's license and that Morton per-
mitted Moore to work by having him driven to jobsites
in company trucks by mechanics with drivers' licenses.
There can be no clearer statement of condonation of an
employee's work defect over an extended period.
(2) Furthermore , I have credited Bowling's testimony
that, after Moore complained to the Union of Respond-
ent's contract violation , in the early March 1988 conver-
sation between Bowling and James Morton (in the pres-
ence of John Morton and James Moore), James Morton
complained that he was having trouble with Moore be-
cause Moore had no driver's license. Bowling then told
Morton that that was Morton 's problem and that James
Morton could not substitute his brother as the journey-
man to replace Moore because of this problem. James
Morton agreed to keep the unlicensed Moore and said he
was only creating an additional journeyman , not remov-
ing Moore as a journeyman . In the period March
through July 1988, James Morton, therefore did nothing
about the "problem" of Moore's failure to have a driv-
er's license; rather, he permitted the condition to contin-
ue unremedied-licensed mechanics drove Moore to the
jobs in Respondent's trucks . This is further evidence of
explicit toleration , if not condonation and acceptance, of
the unhappy condition that Moore could not drive one
of Respondent 's trucks to the job. Thus, this chronic
defect, long accepted by Morton , cannot have precipitat-
ed the sudden discharge.
(3) There is Bowling's credited testimony that in
James Morton 's July 20, 1988 telephone call to Bowling
wherein he told Bowling that he was going to terminate
Moore, inter alia, because Moore had no driver 's license,
Bowling not only reminded Morton that Morton had
brought this problem up 4 months before March and had
not terminated Moore because of it; and in the same con-
versation told Moore that if he were terminating Moore
because Moore and Bowling were working on the prob-
lem of improper payment under the contract , he could
not lay Morton off for that reason.
(4) The "Straw that broke the camel 's back": Among
his several testimonial gaffes demostrating not only James
Morton's unreliable veracity but a surprising animus, was
Morton's clearly concocted story of his alleged discov-
ery, the day before the July 21 discharge, that Moore
was a liar regarding his failure to have a driver's license.
This revelation occurred when the police affirmed to
him that Moore's license had been revoked. Morton testi-
SCOTT LEE GUTTERING CO. 507
fled that he telephoned the police the day before the July
21 discharge (Tr. 503-504) and discovered the revoca-
tion; that he telephoned the police to "ease his mind" of
6 months of suspicions (Tr. 503); and that he waited for
6 months because (i) he doesn 't like firing employees;
and (ii) he had to justify the discharge both to himself
and to his partners (Tr. 504). This July 20 police report
of the license revocation, according to Morton, proved
that Moore's repeated excuses , justifying his failure to
submit his license to Shirley Neier, were all lies. This
July 20 discovery of Moore's deceit-which had caused
Respondent inconvenience and work problem-was "just
the straw that broke the Camel's back" (Tr. 504-505).
(a) When confronted with his prior sworn statement,
however, Morton admitted that he called the police in
May 1988 . If that were true , he knew of the license revo-
cation 2 months before the discharge and failed to act.
(b) In any case , I do not credit his testimony that
Moore's failure to have a license , clearly a work impedi-
ment, was a precipitating cause of the discharge . Morton
had known of this condition for 7 months ; in March, had
told Bowling of the unhappiness it caused him; discov-
ered from the police in May that Moore's license had
been revoked and still failed to mention this to Moore,
much less warn him of any consequences attendant on
further failing to submit a driver's license.
(c) Moreover not only is it supremely difficult to be-
lieve that Morton , who "suspected" for 7 months that
Moore's excuses were fabrications , found the condition
to be intolerable only on July 20, but the crucial insur-
ance and business problem was not that the license was
revoked. It was that Moore failed to submit a valid li-
cense so that he could drive Respondent 's vehicles to
work. Were this condition so economically unacceptable
as to become a proximate cause of a sudden discharge-
as Morton later told Moore and Bowling-then Morton
would have acted on Moore's repeated failure to submit,
rather than on proof that Moore had no license . But the
credible, uncontradicted evidence is that in March 1988,
Morton told Bowling that Moore had no license (when
Moore complained of contract violation). Morton himself
apparently called the police in May 1988 . Thus, even if
the lack of a license were a crucial precondition to Mor-
ton's willingness to act, Morton clearly knew of this con-
dition by March, or certainly in May, and did nothing.
This makes his testimony of the discovery of this condi-
tion by virtue of an alleged July 20 telephone call to the
police, as the "straw that broke the camel's back" into a
fabrication to cover the precipitating reason (Moore's re-
peated complaints to the Union) of the discharge. Such
testimony reinforces an inference if unlawful discrimina-
tory motive, NLRB v. Shattuck Denn Mining Co., 362
F.2d 466 (9th Cir. 1966), and, in any case , fails to support
the defense . It was not a helpful support to Morton's ve-
racity.
While I am willing to accept James Morton 's admis-
sion that he has a "bad memory" (Tr. 524), I am unwill-
ing to believe that the lack of a license contributed to the
sudden discharge . Rather, I conclude this defense to be,
at best, an unconvincing pretext.
3. Moore's failure to report for work due to the
dental appointment
In direct examination , James Morton testified that, in
addition to Moore's failure to have a driver's license, the
second reason for the discharge was Moore 's "not show-
ing up for work" on July 20.
Morton told Moore at the discharge interview, July
21, 1988, that Respondent had been "more than fair"
with Moore; that Respondent had "made him a journey-
man"; that Moore had "turned [Morton] into the [union]
hall every other week"; and that Moore was "absent yes-
terday." This last reason , "absent yesterday ," referred to
Moore missing work because of the July 20 dental ap-
pointment.
I have credited Moore's testimony that on at least
three occasions, the last of which was on July 19, he told
Office Manager Shirley Neier that he would be absent
on July 20 because of a dental appointment . Further-
more, Respondent 's office manager , Shirley Neier, called
as Respondent 's witness, mother-in-law of James Morton,
never denied this Moore testimony . Moreover, the only
testimony regarding Moore's absence (due to the dental
appointment) as a basis for discharge was James Mor-
ton's testimony : that he asked Shirley Neier whether
Moore had called in and Shirley Neier told him that he
had not . Apart from Morton 's startling failure to ask
Shirley Neier if she knew where Moore had been or
what had caused the absence , the only testimony is the
hearsay, uncorroborated testimony by Neier, that Neier
allegedly told him that Moore had not called in. While
Morton's hearsay testimony was not the subject of objec-
tion , I do not credit Morton's testimony that Neier told
him that . Rather, in view of the credited Moore testimo-
ny (that he three times told Neier of the dental appoint-
ment) and Neier's failure to deny Moore's testimony, I
conclude that, had there been any conversation regard-
ing Moore's whereabouts that day, Neier would have
told Morton that Moore had a dental appointment.
Of critical importance in establishing the credibility of
whether Moore had, indeed , told Shirley Neir that he
was going to be at the dentist, I have examined Morton's
testimony regarding the matter very specifically. He ad-
mitted that at the July 21 discharge interview he con-
fronted Moore by asking Moore why he had not called
in the previous morning. Morton admits that Moore said
that he had had a dental appointment and had told Shir-
ley Neier about it . Morton 's testimony was that he had
asked Shirley Neier if Moore had called in and she said
that he had not called in. This was the ripe opportunity
for Morton to confront Moore with Neier concerning
the three times he allegedly told Shirley Neier that he
had a dental appointment . Morton, of course, did not
confront Moore with Shirley Neir . Instead Morton said
that he merely asked Moore why Moore had not come to
work after the dental appointment . Under these condi-
tions, and upon my observation of the witness, and upon
my further balancing the reasonableness of what oc-
curred in that conversation , I conclude that not only did
James Morton know that Moore had been at a dental ap-
pointment that morning , but, by his then asking Moore
why he did not come to work after finishing the dental
508 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
appointment , Morton was trying to establish another
basis, shifting to a firmer ground , a pretext, to rationalize
the discharge . The pretext, of course , is based upon Mor-
ton's inability to confront Moore with any untruthful-
ness-that Moore had previously told Shirley Neier of
the dental appointment because Morton himself knew of
it. I therefore conclude that Moore's failure to show up
for work on July 20, as a basis for discharge , was simply
another pretext for discharging him: Morton knew where
Moore had been and then switched to Moore's failure to
work after the dental appointment . Such dextrous change
of ground does not inspire confidence in Morton 's actual
motivation . Shifting reasons for discipline , in the pres-
ence of a prima facie case , are evidence of, and support,
a finding of an unlawful motive.
4. Moore's "moonlighting" and leaving work early
When Morton telephoned Bowling on July 20, stating
that he was discharging Moore, he gave as the reasons
that Moore had no driver's license and had been "miss-
ing work ." I have concluded that "missing work" did
not refer to Moore's alleged moonlighting but referred to
the fact that Moore had been absent on July 20.
As above noted, in the Charging Party's cross- exami-
nation of James Morton , Morton admitted that in his pre-
vious testimony , he had mentioned only three problems
as forming the basis for the discharge : Moore's attitude
problem , t t his failure to show up for work (presumably
on July 20), and his failure to have a driver's license (Tr.
523). He then admitted to the cross-examiner that in his
testimony thereafter , he added as a further reason: that
Moore had on several occasions left work early (Tr.
523). It should be noted that Morton admitted that he
had never confronted Moore for leaving work early not-
withstanding his testimony that it had, on several occa-
sions, caused him "dismay." He said he failed to do so
because he was short of mechanics at the time (Tr. 523).
With regard to leaving work early, working for other
persons on other jobs , "moonlighting," not only was this
not given as a reason for the termination , but the evi-
dence supplied by Glen E. Reed was that Moore and he
had left early on occasions because of rain; and that
Moore told him that he had worked at other locations,
Glen Reed was careful to testify that Moore told him
that he had worked at his own home or on weekends
and not other places.
The only testimony with regard to Morton leaving
early from jobs was that of John E. Morton, the brother
of Supervisor James Morton . John Morton testified that
Moore told him that he was working at home for
"Chopper," paid in cash for work at Potosi , Missouri,
and that this occurred at the end of May and into June
where he was paid cash on the weekends and sometimes
during the week . On the occasions during the week, this
meant that Morton , who worked with Moore as a two-
man team , would have to go home early . This was mess-
11 General Counsel points out that Morton 's "attitude problem" was
not mentioned to Moore at the time of the July 21 discharge , rather, it
first surfaced in Morton's testimony concerning the reasons he fired
Moore . Certainly , in the reasons he gave Bowling on July 20 for d1s-
charging Moore , no "attitude" problem was mentioned (Tr 500).
ing up Morton 's workday . John Morton specifically testi-
fied that it happened as often as once or twice a week in
May and June (Tr. 565) that Moore left early and that he
told his brother James Morton in mid-June 1988 (Tr.
567-568). In any event , James Morton testified that he
never admonished or even spoke to Moore about this
misconduct.
In view of the fact that Moore left early on several oc-
casions allegedly to moonlight and work for other
people, thus disrupting Respondent 's work schedule and
causing problems to Respondent 's other mechanic, John
Morton, I regard Respondent's failure to speak of the
matter which caused James Morton "dismay" to be Re-
spondent's acceptance , perhaps reluctant acceptance, of
Moore's misconduct . If it was serious, I do not doubt, on
my observation of James Morton, that he would have
spoken to Moore about it. Just as Moore did not have a
driver's license and this caused Respondent business in-
convenience , it is clear to me that Respondent accepted,
without manifested reservation , Moore's leaving early to
moonlight , if, contra to Moore's testimony indeed, it oc-
curred as often as John Morton asserted.
There is, however , a more serious defect in Respond-
ent's use of Moore's repeated missing work (in order to
"moonlight" or otherwise) as a credible basis to dis-
charge him. That defect is Respondent 's inexplicable fail-
ure to rid itself of Moore within a month before the dis-
charge when Moore gave Respondent an open invitation
to terminate him.
John Morton testified that Moore's leaving work to
moonlight occurred in May and June 1988, and that by
June, such misconduct was sufficiently serious that he
notified his brother of it. It frequently "messed up" John
Morton 's workday. Reed , who regularly worked in
excess of 37 hours per week since his being hired in
April 1988, and who underreported his hours 90 percent
of the time , 20 hours per week, carefully testified that
Moore told him he worked at home on weekends; he
and Moore left early once and that was because of rain
(Tr. 334-335).
James Morton , at first, was confident that complaints
of Moore's missing work in June, but then was sure that
more of the complaints occurred in July (Tr. 508-509),
and then concluded that he did not remember any June
complaints (Tr. 509). It allegedly caused him customer
dismay on several occasions but he never mentioned this
to Moore (Tr. 510). His switch in testimony , I believe to
weight Moore's misconduct toward July rather than
June (John Morton reported this misconduct in June)
was to emphasize the proximity of the misconduct to the
July 21 discharge.
It was in June (Tr. 229), however, that Moore openly
refused to go to work one morning because his partner,
Ries, had left early on a prior occasion thereby messing
up Moore's workday . Moore was angry enough to then
demand of James Morton that Ries be immediately fired;
upon Morton 's failure to do so, Moore went over Mor-
ton's head to owner Terrence Scott to demand that Ries
be fired (Tr. 580); then went to search for another job
(Tr. 161-163). His prospective new employer telephoned
James Morton for a recommendation (Tr. 163) who then
SCOTT LEE GUTTERING CO. 509
telephoned Moore who was not then at home. That
night, Moore heard of the phone call and returned James
Morton 's phone call.
James Morton asked him why he left the job and was
applying at other places for employment (Tr. 525).
Moore told Morton that Respondent was in a state of
"utter chaos" (Tr. 165) and Morton answered that he
knew that Respondent had "a lot of problems [and] we
all need to work through them " (Tr. 165-166). He
added : "I don't want to lose you . You're a good employ-
ee" (Tr. 165). Moore said that he didn 't want to leave.
Morton then said : "See you in the morning ." To the
extent that Morton testified that he told Moore that Re-
spondent needed "consistent" employees, that Morton re-
fused to "work around" other peoples ' schedules , and, if
Moore didn't want to work , he should leave-"stay
gone" (Tr. 525), I have not credited the testimony. I
credit Moore's version.
I do not credit Morton's testimony in this regard or
the defense that Moore's "moonlighting " was a genuine
basis for the discharge . Respondent was here presented
with Moore 's open , insubordinate provocation (refusing
to work) and Morton reacted by asking him to return to
work (in spite of Respondent 's problems and the chaos)
because ( 1) Moore was a "good employee" whom Re-
spondent didn't want to "lose ." When faced with such a
timely opportunity to rid himself of a "moonlighter," of
an insubordinate and trouble -making employee, a liar
whose driver 's license had been revoked , Morton should
have fired Moore . (2) Moore refused to go to work, in
this same June 1988 incident , because Ries messed up
Moore's workday by leaving early . There is no sugges-
tion that Ries was admonished , much less disciplined in
any way . This constitutes at least some evidence of dis-
parate treatment because Moore was discharged for al-
leged similar conduct . (3) Perhaps even greater substan-
tive weight should be given to John Morton having noti-
fied his brother of Moore's repeated "leaving early" be-
ginning in May, and James Morton never having even
mentioned this to Moore in any way. Lastly (4), on sev-
eral occasions , beginning in early 1988, Moore simply re-
fused to work low-paying jobs because he would not be
paid at least the contract -based hourly rate . These refus-
als caused heated meetings with James and John Morton
at one of which, in February or March , John Morton,
after speaking to James Morton, told Moore that "we
didn 't have to pay contract-scale wages to Moore be-
cause he had no driver's license (Tr. 150-154). Moore's
refusals to work the low-paying jobs resulted in no disci-
pline, outside of John Morton's idle , perhaps unlawful
threat.
In short, the driver's license problem was a long-toler-
ated irritant (but James Morton allowed Moore to drive
on service calls without his having a license) and clearly
a pretextual basis for Morton discharging Moore; James
Morton knew of Moore's "leaving early" since May or
June and did not think it important enough to even men-
tion to Moore; and when Moore , having refused to
work, was in the process of seeking another job because
Morton refused to discharge Ries for leaving early,
James Morton told Moore that Moore was a good em-
ployee whom Morton didn't want to lose (and Ries was
neither admonished nor disciplined ). In view of Shirley
Neier's failure to deny Moore's testimony concerning her
knowledge of his denial appointment and James Morton's
testimonial switch (where were you, why didn't you call
in? and then , why didn 't you work after finishing with
the dentist), I also regard the "missing work" explanation
to be pretextual . Similarly, the "attitude" problem-quar-
eling over work assignments-was not only resolved in
Moore's favor but Moore 's complaining resulted in
Morton shutting his door . Besides, Morton 's brother was
often given the same choice assignments as Moore.
Lastly, there is James Morton's postdischarge July 25
phone call to Bowling wherein Morton sought to further
rationalize and convince Bowling that Moore had en-
gaged in additional misconduct , justifying discharge
(Bowling had already told Morton that the "driver's li-
cense defense" was old hat, previously rejected and un-
convincing). The call was prompted by Morton 's receipt
of the Union 's unfair labor practice charge (alleging
Moore's unlawful discharge because of his complaints to
the Union of contract violation). Morton spoke of
Moore's smoking marijuana (nowhere further mentioned,
much less proved herein ) on jobsites , and, for the first
time, Moore's "moonlighting"-a condition not men-
tioned to Moore in the July 21 discharge interview
though known to Morton since his brother 's May and
June 1988 complaints . Evidently , what actually con-
cerned Morton, in this Bowling phone conversation, was
Moore's charge of Respondent's failure to correctly pay
him and Bowling 's threat of an audit and the executive
board appearance . Morton's defense was not that
Moore's charge was untrue, but that other employers
were "cheating around" under the contract; and he
wanted them, as well as Respondent , brought before the
executive board.
I regard all the defenses as either unproven (marijua-
na), disparate treatment (Ries), pretextual (driver's li-
cense, dental appointment, moonlighting) or long tolerat-
ed and condoned (leaving work for moonlighting pur-
poses ; "temper tantrums" resulting in his refusing to
work on low -profit jobs). Moore was not an ideal em-
ployee; but even the ordinary employee is protected by
the Act. What Moore was, warts and all, was a good
worker . Employers don't often suddenly fire good work-
ers for alleged chronic misbehavior , long tolerated or
condoned . When this occurs in the presence of a prima
facie case, some skepticism is in order.
Simply put, Respondent put up with a sometimes tem-
permental employee (Tr. 476), even cajoled him into re-
turning to work when he was seeking other employment,
because he was a good mechanic-or as James Morton
admitted : "Good men are hard to come by" (Tr. 480)-
which he intuitively immediately recognized as a damag-
ing admission and immediately "rephrased" it into: "In-
stallers are hard to come by" (Tr . 480). But Shirley
Neier also described Moore as a "good worker" (Tr.
558).
When Morton's veracity concerning the motive for the
July 21 discharge is measured , inter alia, against his ap-
praisal of Moore as a good employee, his cajoling him
into remaining as an employee when, in June, he was
510 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
looking for other employment , his inexplicable inability
to explain why he permitted Moore and John Morton to
work only 20 hours when he desired that they work 40
hours per week , his blundering testimony of the "straw
that broke the camel's back," Bowling's July 19 threat of
an audit based on Moore's complaint of underreported
hours, and the timing of Morton 's July 20 decision to
discharge Moore, I am left with a record of a strong
prima facie case and a weak and unbelievable defense.
I conclude that Morton discharged Moore because
Moore's repeated complaints to the Union revealed that
Moore reported to the Union that Respondent was caus-
ing its employees to underreport their work hours result-
ing, inter alia, in lower fringe benefit contract contribu-
tions paid to the Union and sometimes less pay to Moore
(where more hours were necessary to hang less gutter
footage than gross gutter labor costs warranted) when
calculated on his contract hourly rate as a journeyman.
These complaints , in turn caused direct union interven-
tion on July 19 with threats of a union audit of Respond-
ent's books and of causing Respondent to appear before
the union executive board . Such intervention led
Morton, on the next day, July 20, to tell Bowling that he
was discharging Moore-which he did on July 21. Such
motivation constitutes , prima facie , a discharge because
of union activites which has not been rebutted. NKC of
America, 291 NLRB 683 (1988). Additionally, I have
found Respondent 's explanations for the discharge entire-
ly unconvincing and conclude that Respondent has failed
to carry its burden of proof on these defenses under
NLRB v. Transportation Management Corp., 462 U.S. 393,
401-403 ( 1983); Wright Line, supra, and NLRB v. Doro-
thy Shamrock Coal Co., 833 F.2d 1263 (7th Cir. 1987):
that Respondent would have discharged Moore regard-
less of his complaints to the Union. 12 I therefore con-
clude that Respondent has both failed to rebut the prima
facie case or to prove its defenses and has thus, as al-
leged , violated Section 8(a)(3) and (1) of the Act in dis-
charging Moore on July 21, 1988.
B. The Alleged Violation of Section 8(a)((5) of the Act
The complaint alleges, and Respondent admits, the ex-
istence of a lawful collective -bargaining relationship be-
tween Respondent and the Union pursuant to Section
12 In passing , I note that James Morton 's repeated testimony that he
did not know that all his employees-including his brother-were under-
reporting their hours cannot be taken seriously Morton is clearly a
bright, attentive, and incisive businessman Putting aside Moore's testimo-
ny that Morton himself caused Moore to underreport Moore 's hours, and
Morton's testimony that Shirley Neier made up the payroll from time-
sheets submitted by the mechanics which Morton had no reason to ques-
tion, how to explain ( 1) Morton permitting all these skilled employees to
regularly work only 20 to 25 hours per week ; and (2) employees regular-
ly doing a full day's work, and nevetherless reporting only 20 hours of
work per week (i.e., 4 hours per day). Such testimony was unworthy of a
man of James Morton 's caliber
To the extent Respondent argues (Br. p. 23 ) that Respondent need not
have a timeclock or interrogate its employees on their reported hours
such argument misses the point . Morton induced Moore to falsely report
his hours (Tr. 107) Moreover, while the underreporting of hours ulti-
mately hurt the employees , it had no immediate effect on their (except
Moore's) paycheck (based on production, not hours); it actually had an
immediate effect only on the Union But the Union was the party to
whom Respondent was required to accurately report and contribute.
8(f) of the Act, the fruition of that relationship being a 3-
year collective-bargaining agreement in effect between
May 1, 1986 , and April 30, 1989. Respondent also admits
both the appropriateness of the contract bargaining unit
within the meaning of Section 9(b) of the Act; and that
the Union , by virtue of Section 9(a) of the Act, has been
and is the exclusive representative of the employees in
the aforesaid appropriate unit for the purposes of collec-
tive bargaining . Respondent denies, however, that since
on or about January 21 , 1988,13 and continuing to date,
Respondent has failed to comply with the terms of the
collective-bargaining agreement by (A) failing to make
full and accurate reports to the Union regarding the
hours worked by employees covered by the collective-
bargaining agreement ; and (B) failing to make contribu-
tions to the fringe benefit funds , set forth in the agree-
ment (Welfare Fund , Local 36 Pension Fund , Vacation
Fund, SASMI Fund , National Pension Fund , National
Training Fund , and Local Apprenticeship Fund ), consist-
ent with the hours actually worked by its employees.
More than 20 years ago , the Board established that
Section 8(d) of the Act requires the employer and the
union to bargain "with respect to wages, hours, and
other terms and conditions of employment" but that if
those subjects are contained in an existing agreement, "it
is illegal for the employer to alter working conditions in
mid term-even if it has given notification to the
Union." NLRB v. BASF Wyandotte Corp., 798 F.2d 849
fn. 2 (5th Cir . 1986); citing C & S Industries , 158 NLRB
454 (1966); and R. Gorman, Basic Text On Labor Law, p.
464 (1976). In C & S Industries supra at 457, the Board
stated:
The Board has held that an employer acts in derro-
gation of his bargaining obligation under Section
8(d), and hence violates Section 8(a)(5), when he
unilaterally modifies contractual terms or conditions
of employment during the effective period of a con-
tract-and this even though he has previously of-
fered to bargain with the Union about the change
and the Union has refused.
C & S Industries, supra at 458, also makes clear that,
while it is true that a breach of contract is not ipso facto
an unfair labor practice, where the breach of contract
encompasses "a modification " of the contract with
regard to a basic term or condition of employment,
wages for example , more is involved than just simply a
default in a contractual obligation . Such a change mani-
festly constitutes a "modification" within the meaning of
Section 8(d) of the Act. If there is no compliance with
the terms of Section 8(d) of the Act with regard to con-
tract modification , such a contract breach also violates a
statutory duty, the redress of which becomes a matter of
concern to the Board . In such situations , even where the
employer obtains approval of a majority of employees
for the proposed change , but not reached agreement
13 The first charge against Respondent was filed and served , pursuant
to Respondent's admission , on July 21, 1988 Thus , the 6-month statute of
limitations imposed by Sec. 10(b) of the Act runs to the date of January
21, 1988 , as it appears in the above text
SCOTT LEE GUTTERING CO. 511
with the Union, the unilateral change in a term and con-
dition of employment violates Sections 8(d) and 8(a)(5)
of the Act. NLRB v. Ford Bros., 786 F.2d 232 (6th Cir.
1986). Once it is established that there is an existing col-
lective-bargaining agreement , the employer is prohibited
from modifying the terms and conditions of employment
established by the agreement without obtaining the con-
sent of the union , not merely in requesting bargaining. In
Rapid Fur Dressing, 278 NLRB 905 (1986), the Board
added:
Nor is there any doubt that pension plans and vaca-
tion benefits are well within the scope of this prohi-
bition again [sic] unilateral modifications of a collec-
tive-bargaining agreement.
Since it is not alleged in the complaint nor argued at
the hearing that Respondent , in requesting or demanding
of James Moore that he report no more than 20 hours on
his timesheet, was engaged in unlawful direct bargaining
with the employee in the face of union representation
and the existence of a contrary collective -bargaining
agreement , I do not reach or decide that issue . Rather, as
alleged in the complaint , I conclude that the General
Counsel has proved by a preponderance of the credible
evidence , above , that Respondent knowingly and inten-
tionally failed to make full and accurate reports to the
Union14 regarding the hours worked by Moore, and by
Ries and Reed , for the period commencing January 21,
1988. The testimony of the General Counsel 's witnesses
that they regularly underreported ; that Moore was in-
duced by James Morton to underreport hours and that
Respondent , therefore, knowingly filed false reports is
credited . Further, Morton cannot reasonably claim inno-
cence concerning the accuracy of the reported hours
since he knew that while he expected 40 hours of weekly
work , it was "odd" that his brother, Moore, and the
other employees were reporting 20 hours per week (Tr.
545-546). He also knew that the bonus system created an
incentive for employees to underreport hours, Reed's
and Ries' fringe benefits were deducted from their gross
gutter pay; therefore , the fewer hours reported, the
fewer deductions.
The collective-bargaining agreement provides that the
employer shall report contributions to various contrac-
tual welfare , pension , and other funds on forms provided
by the Union (art. VIII , sec. 20). Respondent 's payroll
sheets (R. Exh . 5) demonstrates that both John Morton
and James Moore were shown to work 20 hours for the
weekly payroll period ending April 6, 1988 . Respond-
ent's monthly fringe benefit report (G.C. Exh . 7) shows
that for the monthly payroll period, March 31 through
April 27, 1988, both James Moore and John Morton
averaged about 20 hours per week . These forms were
submitted by Respondent to the Union. (See generally
G.C. Exh. 7, for the hours reported by Respondent to
the Union which James Moore and John Morton
worked.) Moore and Reed credibly testified that they
consistently underreported their hours.
14 Pursuant to art . 8, sec . 22 (E), p. 24 of the collective -bargaining
agreement , Respondent is obliged to furnish to the trustees of the various
funds all records pertaining to unit employees' hours of work.
I further conclude that , consistent with the allegations
of paragraph 8(B) of the complaint , since Respondent
was knowingly and intentionally underreporting the
hours worked by James Moore, and other employees (in
particular , John Morton, Ries, and Reed ) Respondent
thereby deliberately failed to make contributions to the
various fringe benefit funds, previously identified herein,
and thereby violated Sections 8(d) and 8(a)(5) of the Act
because it unlawfully engaged in unilateral modifications
of the wages and other terms and conditions of employ-
ment thus violating Sections 8(d) and 8(a)(5) of the Act
as alleged.
There is no problem presented here of reaching back
to January 21, 1988, in describing the time limit of the
violation . Here, Respondent submitted false reports to
the Union which the Union had no reason to question;
each failure to contribute was a separate and distinct vio-
lation . Since there was no "unequivocal cessation" of a
fund contribution outside the 10(b) period, Respondent
made contributions within the 10 (b) period , and since the
charge here was filed during the term of the collective
agreement , General Counsel may adduce evidence of un-
lawful failure to contribute within the 10(b) period re-
gardless of the time when the otherwise innocent hours
were first reported , i.e., even outside the 10 (b) period.
Compare: Farmingdale Iron Works, 249 NLRB 98 (1980),
enfd . 666 F.2d 910 (2d Cir . 1981), with American Com-
mercial Lines, 291 NLRB 1066 ( 1988).
CONCLUSIONS OF LAW
1. Respondent Scott Lee Guttering Co. is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Local 36, Sheet Metal Workers International Asso-
ciation , AFL-CIO is a labor organization within the
meaning of Section 2(5) of the Act.
3. The unit of employees specified in a collective-bar-
gaining agreement between the Union and Respondent,
effective by its terms for the period May 1, 1986,
through April 30, 1989, is a unit appropriate for purposes
of collective bargaining within the meaning of Section
9(b) of the Act.
4. At all times during the effective dates of that collec-
tive-bargaining agreement , described above herein in
paragraph 3, the Union has been, and now is, by virtue
of Sections 9(a) and 8(t) of the Act, the exclusive repre-
sentative of the employees in that appropriate unit for
the purposes of collective bargaining with respect to
rates of pay, wages , hours of employment , and other
terms and conditions of employment.
5. Since on or about January 21, 1988, and continuing
to date, Respondent had unlawfully refused to bargain in
good faith with the Union in that it has failed to comply
with its contractual obligation to the Union, concerning
mandatory subjects of bargaining, regarding employees
covered by the agreement by failing regularly and peri-
odically to supply to the Union accurate records of
hours worked by unit employees and to make accurate
and timely contributions to the several fringe benefit
funds specified in said agreement: Welfare Funds, Local
36 Pension Fund, Vacation Fund, SASMT Fund, Na-
512 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tional Pension Fund, National Training Fund and the
Local Apprenticeship Fund, thereby violating Sections
8(d) and 8(a)(5) of the Act.
6. By discharging employee James Moore on July 21,
1988, and thereafter failing and refusing to reinstate him,
because of his reasonable and good -faith complaints to
the Union concerning alleged contract violation by Re-
spondent , Respondent unlawfully discriminated against
him in his terms and conditions of employment , thereby
discouraging membership in the Union , in violation of
Section 8(a)(3) and (1) of the Act.
7. By telling its employee James Moore, on July 21,
1988, that he was being discharged because he contacted
the Union for assistance in resolving an alleged contrac-
tual violation by Respondent , Respondent thereby violat-
ed Section 8(a)(1) of the Act.
8. The above unfair labor practices found herein affect
commerce within the meaning of Section 2(6) and (7) of
the Act.
THE REMEDY
Having found that Respondent violated Section
8(a)(1), (3), and (5) of the Act, Respondent will be di-
rected to cease and desist from engaging in such conduct
and to take certain affirmative action necessary to effec-
tuate the purposes and policies of the Act.
Aside from posting a notice as ordinarily required as a
remedial object for such violations , Respondent will be
obliged to offer immediate and full reinstatement to
James Moore, the subject of its unlawful discharge, and
make him whole for any loss of pay, with interest, he
may have suffered by reason of Respondent's unlawful
conduct against him. In addition, Respondent , for the
period commencing January 21, 1988, will be obliged to
correct reports previously submitted to the Union; to
hereafter make full and accurate reports to the Union re-
garding the hours worked by employees covered by the
collective-bargaining agreement terminating on April 30,
1989, and any renewal, supplement , or modification
thereof; and , in addition, will be obliged, for the period
commencing January 21, 1988, to make contributions to
the fringe benefit funds set forth in the agreement includ-
ing the Welfare Fund, the Local 36 Pension Fund, Vaca-
tion Fund , SASMI Fund , National Pension Fund, Na-
tional Training Fund , and Local Apprenticeship Fund.
In addition , the Respondent will be obliged to make
whole all covered employees, commencing with the Jan-
uary 21 , 1988, for loss of coverage under those funds
pursuant to Ogle Protection Service, 183 NLRB 682
(1970), with losses by individual employees secured pur-
suant to the Board rule in Kraft Plumbing & Heating Co.,
252 NLRB 891 (1980); although contributions to the sev-
eral welfare , pension and apprenticeship funds will be
pursuant to the Board rule in Vin James Plastering Co.,
226 NLRB 125 , 132 (1976), all of which are mandatory
subjects of bargaining since they constitute employee
"wages," F.M.L. Supply, 258 NLRB 604 (1981), fn. 3. In
the instant case, the precise size of Moore's backpay, the
size of the lawful contributions to the trust funds, the
question of interest, contract penalties, and other addi-
tional amounts payable as part of this "make whole"
remedy, may be left to the compliance stage of this pro-
ceeding pursuant to Merryweather Optical Co., 240 NLRB
1213 (1979), except where the parties have specifically
agreed , pursuant to article VIII , section 22(A) through
section 22(F) to the payment of liquidated damages,
under a formula derived specifically in the contract, for
the employer's failure to make timely contract contribu-
tions . Accordingly , I shall recommend to the Board that
Respondent be directed to pay into each of the specified
trust funds the amounts provided for the contract be-
tween the parties relating to deliquent contributions to
the funds. F.M.L. Supply, 258 NLRB 604 (1981). Any
material disagreement , of course , should be left to com-
pliance proceedings.
Backpay payable to James Moore pursuant to his un-
lawful discharge will be computed as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as set
forth in New Horizons for the Retarded, 283 NLRB 1173
(1987).
On the above findings of fact, conclusions of law, and
on the entire record , I issue the following recommend-
edta
ORDER
The Respondent , Scott Lee Guttering Company,
Fenton, Missouri , its officers , agents, successors , and as-
signs, shall
1. Cease and desist from
(a) Discharging or otherwise unlawfully discriminating
against employees with regard to their wages , hours, or
other terms and conditions of employment, thereby dis-
couraging membership in Local 36, Sheet Metal Workers
International Association , AFL-CIO or in any other
labor organization.
(b) Telling any employee that he is being discharged
because he complained to the Union concerning failure
of Respondent to abide by the terms and conditions of
employment of the collective -bargaining agreement with
the Union with regard to wages, hours, or other terms or
conditions of employment.
(c) Failing or refusing to bargain in good faith with
the Union in the appropriate unit specified in its 1986-
1989 contract with the Union, (1) by failing to make full,
accurate , and timely reports to the Union , as required by
the collective-bargaining agreement between Respondent
and the Union including the hours worked by employees
covered by the collective -bargaining agreement ; and (2)
by failing to make full , accurate, and timely contributions
to the fringe benefit funds set forth in said agreement:
Welfare Fund , Local 36 Pension Fund , Vacation Fund,
Sasmi Fund , National Pension Fund , National Training
Fund , and Local Apprenticeship Fund.
(d) Unilaterally changing, during the term of the
above-cited collective-bargaining agreement, or any re-
newal , supplement, or amendment thereof, the rates of
pay, wages , hours, or other terms and conditions of em-
ployment of employees employed in the unit specified in
15 If no exceptions are filed as provided by Sec. 102 46 of the Board's
Rules and Regulations , the findings, conclusions , and recommended
Order shall , as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
SCOTT LEE GUTTERING CO.
the collective-bargaining agreement without the consent
of the Union.
(e) In any like or related manner interfering with, re-
straining , or coercing its employees in the exercise of the
rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Retroactively to January 21, 1988 , supply the
Union with full, timely, and accurate reports regarding
the hours worked by employees covered by the above-
cited collective -bargaining agreement.
(b) Retroactive to January 21, 1988, make full , timely,
and accurate contributions , pursuant to the terms of the
collective-bargaining agreement to the fringe benefit
funds, including liquidated damages and interest, and
make whole losses by employees covered by said funds
as more fully described in the remedy section of this de-
cision.
(c) Offer to James Moore immediate and unconditional
reinstatement to his former or substantially equivalent
position of employment , discharging , if necessary, any
replacement , without prejudice to his seniority or other
rights and privileges ; make him whole for any loss of
wages suffered by him by reason of Respondent 's unlaw-
ful conduct against him as provided in the remedy sec-
tion ; expunge from his personnel records any and all ref-
erence to his being discharged , and notify him, in writ-
ing, that this has been done, and that evidence thereof
will not be used as a basis for any future disciplinary
action.
(d) Preserve and, on request, make available to Board
or its agents, for examination and copying, all payroll
records, social security payment records , timecards, per-
sonnel records, reports submitted to the Union on wages,
hours, fringe benefit trust contributions , and all other
records necessary to analyze the amount of backpay and
contributions to fringe benefit funds due under the terms
of this decision.
(e) Post at its offices and place of business in Fenton,
Missouri , copies of the attached notice marked "Appen-
dix." 16 Copies of said notice , on forms provided by the
Regional Director for Region 14, after being duly signed
by Respondent 's representative, shall be posted by it for
60 consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are cus-
tomarily posted . Reasonable steps shall be taken by Re-
spondent to ensure that said notices are not altered, de-
faced, or covered by any other material.
(1) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
has taken to comply.
16 If 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 Nation-
al Labor Relations Board " shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATION BOARD
An Agency of the United States Government
513
WE WILL NOT discharge or otherwise unlawfully dis-
criminate against our employees with regard to their
wages, hours, or other terms and conditions of employ-
ment , thereby discouraging membership in Local 36,
Sheet Metal Workers International Association, AFL-
CIO or in any other labor organization.
WE WILL NOT tell any of our employees , that they are
being discharged because they complained to the Union
of our failure to abide by the terms and conditions of
employment of the collective-bargaining agreement with
the Union with regard to wages, hours, or other terms
and conditions of employment.
WE WILL NOT fail or refuse to bargain in good faith
with the Union by (1) failing to make full , accurate, and
timely reports to the Union, as required by our collec-
tive-bargaining agreement with the Union, including the
hours worked by employees covered by the collective-
bargaining agreement ; and (2) by failing to make full, ac-
curate, and timely contributions to the fringe benefit
funds set forth in said agreement.
WE WILL NOT unilaterally change, during the term of
our collective -bargaining agreement , or any renewal,
supplement, or amendment thereof, the rates of pay,
wages, hours, or other terms and conditions of employ-
ment of our employees employed in the unit specified in
such agreement without the consent of the Union.
WE WILL NOT in any like or related manner interfere
with, coerce, or restrain our employees in the exercise of
the rights guaranteed by Section 7 of the Act.
WE WILL retroactively to January 21, 1988, supply the
Union with full, timely, and accurate reports regarding
the hours worked by our employees covered in our col-
lective-bargaining agreement.
WE WILL retroactive to January 21, 1988, make full,
accurate , and timely contributions, pursuant to the terms
of our collective-bargaining agreement, to the fringe ben-
efit funds specified in our agreement and make whole
our employees for any losses sustained by reason of our
prior failure to so contribute.
WE WILL offer to James Moore immediate and uncon-
ditional reinstatement to his former or substantially
equivalent position of employment , discharging , if neces-
sary, any replacement , without prejudice to his seniority
or other rights and privileges; make him whole for any
loss of wages suffered by him by reason of our unlawful
conduct against him; expunge from our personnel
records any and all reference to his being discharged and
notify him, in writing , that this has been done , and that
evidence thereof will not be used as a basis for any
future disciplinary action.
SCOTT LEE GUTTERING CO.