Solahart of Fresno

National Labor Relations Board - Board Decisions

Sep 30, 1981

258 N.L.R.B. 1404 (N.L.R.B. 1981)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
S. W. Hart & Company, Pty. Ltd., d/b/a Solahart
of Fresno and Sheet Metal Workers Interna-
tional Association, Local Union 252, AFL-CIO.
Case 32-CA-2631
September 30, 1981
DECISION AND ORDER
BY MEMBI-RS FANNING, JNKINS, AND
ZIMM ERMAN
On June 30, 1981, Administrative Law Judge
James S. Jenson issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief, and the General
Counsel filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, ' and conclusions of the Administrative Law
Judge and to adopt his recommended Order.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
' IThe Responldent has excepted to certai credibilit findings made by
the Administrative Law Judge. II is the Board's established policy not to
overrule an administrative law judge's resolutions w ith respect to credi-
bility unless the clear prepotlderance of all of the rele;vant evidence con-
vinces us that the resolutions are incorrect Standard Dry Wall Products.
Inc.. 91 NLRB 544 (1950). etild 1XX Frd 12 (3d Cir 1951). We hale
carefully examined the record and find lno basis fir reersing his findinlgs
1II is exceptions, the Respondent argues that Ihe Administrativse lav
Judge misinterpreted certain tstimolly of Respondenlt's ice president of
operations, Thormas Butler by statling that Butler ilconsistently testified
about the relative cost differentiJul bet ween the picce-rale an d hourly
methods (lf payment for the installation of il Solahlar "retrofit" uit We
agree While Butler statled that he did not knos the cost differeice be-
tweel installing a singl utlit (ln ia pice-ra;lte basis compared to an hourly
rate. Ihtler consistently stalted that he believed it xas less expensive to
install units ot a piece-rate basis w hen conlsideriig the average cost ,1'
installinlg mu ' units. Nevertheless, wse fild it u iieccsary to rely onl Ihis
finding by the Administrative Lasl Judge as support f his ultima;lt con-
clusioll that the Respoldent violaied Sec. X(a)(3) because se are persuad-
ed b% the totlalil of the evidenlce that the Respondent's changes in em-
ploylilent conlditionls swere predicated on its employees' union activities
Member Jenkins does not rely oln Wrighi Line, a Divirion oJ Wright
Line.: Inc.. 251 NRB 1083 (19X()01) In his vie\,. Ihat )ecisionll concernls
identifyiltg the cause of discharge here a genuine lawful and a; genlilte
unlasful reason exist. Where. as here, thile asserted la. fu! reason is found
to be a; pretext. nly line gelluile reason remains he ulawful MIe ''
attenipt to apply Wright Line i such a ituiatioli is ftile. c,,iusI~g. liad
misleading See also Menmber Jenkins' concurring opinioln in l, rniluan
Ili/l aud Engitt'l'rinll (.. ilnc.. 257 NlRBI No 79 (191X).
In accordance xc ith his partial dissenlt i Olirmipin .Iediru (roruuiin.
250 NL RB 14h (il980)). Member Jenkinls viould als.mrd lcrest oII the
backpay due based oin the fiirmula set frthl thereci
! We have modified he nlotice to colrilfi r l itl Ihce provisios oi the
recomlmended ()rder lhe introducltory lanlguage conitlained ill the lt-
tached notice is included to fully apprise Rcspl idenll's cnilplolces of' their
rights unider the Naltional bor Relationis Act ils atendied
258 NLRB No. 192
Order of the Administrative Law Judge and
hereby orders that the Respondent, S. W. Hart &
Company, Pty. Ltd., d/b/a Solahart of Fresno,
Fresno, California, its officers, agents, successors,
and assigns, shall take the action set forth in the
said recommended Order, except that the attached
notice is substituted for that of the Administrative
Law Judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WIL. NOT question you concerning your
union or protected concerted activities or the
union or protected concerted activities of
other employees.
WE WI.LL. NOT discourage membership in
Sheet Metal Workers International Associ-
ation, Local Union 252, AFL-CIO, or any
other labor organization, by changing your
method of payment from an hourly rate to a
piece-rate basis; by eliminating any of your
employee benefits; by requiring you to pay for
the use of our trucks, tools, and materials in
the performance of your work duties; by ar-
ranging for your transfer from our Fresno fa-
cility to facilities in other locations; or in any
other manner attempt to convert you from em-
ployee to independent contractor status.
WE WIl. Nor in any other manner interfere
with, restrain, or coerce our employees in the
right to self-organization, to form labor organi-
zations, to join or assist Sheet Metal Workers
International Association, Local Union 252,
AFL-CIO, or any other labor organization, to
bargain collectively through representatives of
1404
SOLAHART OF FRESNO
their own choosing, to engage in concerted ac-
tivities for the purpose of mutual aid or pro-
tection, or to refrain from any and all such ac-
tivities, except to the extent that said right
may be affected by an agreement requiring
membership in a labor organzation, as pro-
vided in the proviso to Section 8(a)(3) of the
Act.
WE WILL offer Mark Herr and Tim Lock-
wood immediate and full reinstatement to their
former positions in Fresno or, if such is not
available, to positions in Fresno substantially
equivalent, without prejudice to the seniority
and other rights and privileges enjoyed by
each, and make them, together with Homar
Garza and Manuel Aguilera, whole for any
losses they may have suffered by reason of our
attempt to convert them from employee to in-
dependent contractor status, together with in-
terest.
WE WILL bargain collectively, upon request,
with Sheet Metal Workers International Asso-
ciation, Local Union 252, AFL-CIO, as the
exclusive representative of all our employees
in the appropriate unit described below, with
respect to rates of pay, hours of employment,
or other terms and conditions of employment
and, if an understanding is reached, embody
such understanding in a signed agreement. The
appropriate bargaining unit is:
All full-time and regular part-time employ-
ees employed as installers and service and
maintenance technicians at our Fresno, Cali-
fornia, facility; excluding all other employ-
ees, office clerical employees, guards and su-
pervisors as defined in the Act.
All our employees are free to become or remain
or refrain from becoming or remaining members of
the above-named labor organization or any other
labor organization.
S. W. HART & COMPANY, PTY. LTD.,
D/B/A SOLAHART OF FRE-SNO
DECISION
STATEMENT OF THE CAstE
JAMES S. JENSON, Administrative Law Judge: This
case was heard in Fresno, California, on November 19
and 20, 1980.1 The complaint, which was issued on May
30 pursuant to a charge and a first amended charge filed
on April 7 and 16, respectively, alleges in substance that,
upon learning that its employees had engaged in organiz-
ing activities through a request for recognition by the
Union, the Respondent unlawfully interrogated its em-
'All dates arc ill 180 unlcss othcr isc rstated
ployees, and unilaterally altered their terms and condi-
tions of employment in an effort to convert them to inde-
pendent contractors, thereby violating Section 8(a)(I).
(3). and (5) of the National Labor Relations Act, as
amended. The General Counsel argues that such conduct
warrants the issuance of a bargaining order. The Re-
spondent argues that the General Counsel failed to estab-
lish union animus; that the alleged interrogations were
lawful; that one of the alleged discriminatees Mark Herr,
was a supervisor; that the Respondent converted its
hourly employees to independent contractors in accord-
ance with company policy and not for unlawful reasons;
and that a bargaining order would not. in any event, be
appropriate. All parties were afforded full opportunity to
appear, to introduce evidence, to examine and cross-ex-
amine witnesses, to argue orally, and to file briefs. Briefs
were filed by both the General Counsel and the Re-
spondent, and have been carefully considered.
Upon the entire record in the case, and from my ob-
servation of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
I. JURISI)ICTION
The Respondent is engaged in the manufacture, sale.
and installation of solar water heaters throughout the
world, and has many facilities, including a facility in
Fresno, California. It is admitted and found that during
the past year the Respondent purchased and received at
its Fresno facility goods and services valued in excess of
$50,000 directly from suppliers located outside the State
of California, and that it is an emplover engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
11. I HI LABOR ORG(ANIZATION INVOIVED
It is admitted and found that the Union is a labor orga-
nization within the meaning of Section 2(5) of the Act.
t11. THF A..E(;GI) UNI.R I AOR PRACTICES
A. The Setting
The Respondent manufactures and distributes solar
heating units throughout various countries and through-
out the various States of the United States, and operates
numerous facilities, including distribution and installation
facilities in San Diego, Fresno, and Sacramento, Califor-
nia. the latter having been opened by February 1980.
Prior to the opening of the Fresno branch in December
1978, the Respondent's solar units were distributed and
installed in the Fresno area by Central Valley Solar
through a franchise agreement. Central Valley. ho\vexer.
had misinstalled a number of units for the builder of Van
Dyke Tract No. 7 and, as a consequence, the units froze
up with the first cold weather and were severely dam-
aged. As a further consequence. Central Valley went
bankrupt. Thereafter. the Respondent opened its Frcsno
branch with Thomas Butler as the manager. In January
1980, utler's title wsas changed to ice president of op-
erations. Graham Rose is the Respondent's president of
1405
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United States operations. having assumed that position
on January 7, 1980. Dan Escobedo is the Fresno installa-
tion manager, who the parties stipulated is a supervisor
within the meaning of the Act. During all times material
herein, Joe Escobedo and Henry Ghidelli, doing business
as The Metal Works in Riverdale, California, operated as
independent contractors installing the Respondent's solar
units, and were paid on a piece-rate basis. They also
hired their own employees. No contention was made that
Joe Escobedo, Ghidelli, or their employees are employ-
ees of the Respondent. Mark Herr, Tim Lockwood,
Homar Garza, and Manual Aguilera were employed by
the Respondent on an hourly basis to do installation and
service work until April 1980 when they were switched
to a piece-rate basis.2 Garza and Aguilera were switched
back to an hourly pay basis in July pursuant to their re-
quests. The parties agree that Lockwood, Garza, and
Aguilera are within the unit alleged to be appropriate in
the complaint. Contrary to the General Counsel and the
Union, who would also include Herr, the Respondent
contends that Herr is a supervisor and is therefore ex-
cluded.' Herr had been employed by Central Valley and
was hired by the Respondent when it opened the Fresno
facility because of his experience and knowledge of the
work that had been done by Central Valley.
The record establishes that, when the Respondent
opened the Fresno operation following the bankruptcy of
Central Valley, the builder of the Van Dyke tracts had
become very dissatisfied with the Respondent's solar
units, had discontinued using them, and had switched its
business to another solar company. In order to reestab-
lish its credibility with the Van Dyke builder, the Re-
spondent agreed to do all of the service repair work on
the 288 damaged units previously installed by Central
Valley. Consequently, in the beginning the work was
confined to service work for which the employees were
paid on an hourly pay basis. As installation work became
available, the hourly paid service employees were taken
off service work and put on installations at the same
hourly rate. Installation work falls into three categories:
(1) "Retrofit" installation is performed on an existing
home and requires the installation of plumbing from the
ground to the roof where the solar unit is installed; (2)
"stubout" consists of installing the unit on the roof with-
out any preplumbing work having been done by the in-
staller; and (3) preplumbing includes the inside plumbing
work on new houses (normally done by a plumbing con-
tractor, but sometimes performed by the Respondent's
employees) up to the point where stubout is done. By the
summer of 1979, the service work on the damaged units
installed by Central Valley was completed and the Re-
spondent had negotiated with Van Dyke for the installa-
tion of a number of units at Van Dyke Tract 10. In addi-
tion, installations on other tracts were negotiated and ret-
It is undisputed that Butler had discussed the possihility of the em-
ployees becoming suhcontractors also referred to herein as independent
contractors, from the commencement of their employment.
The complaint alleges the fllowing unit to he appropriate:
All full-time and regular part-time employees employed as installers
arid service arid mailtenance technicians at Respondent's Fresno.
California. facility excluding all other employees, office clerical em-
ployees. guards, and supervisors as defined in the Act.
rofit installations also began to increase. At or about this
time, Herr was placed in charge of coordinating the
work on the new construction tracts and was given the
title of subdivision coordinator. Retrofit installations,
which began to increase in the late summer of 1979, as
well as stubout installations on new tract homes, were
performed by independent contractors on a piece-rate
basis. Occasionally, the hourly employees (Herr, Lock-
wood, Garza, and Aguilera) performed retrofit installa-
tions on older homes and stubouts on new tract homes.
B. Alleged Interrogation
On March 12, 1980, Herr and Lockwood, and on
March 13 Garza and Aguilera, signed cards authorizing
the Union to represent them for collective-bargaining
purposes. By letter dated March 19, received by Butler
on March 20, the Union demanded recognition for a unit
composed of service technicians, crew leaders, installers,
and maintenance employees. In accordance with the invi-
tation expressed in the letter, Butler called Alfred Garri-
son, the Union's business manager, and stated that he
(Butler) "would have to look into it and I didn't know
anything about what was going on and I was at a com-
plete loss and I didn't know what to do." During his
lunch hour that day, Herr received a signal on his
"pager" to call the office, which he did, and was told
that Butler wanted to talk to him. According to Herr,4
whom I credit:
Tom [Butler] said that he wanted to ask me a ques-
tion and he asked me if I knew anything about any
of our employees being members of the union. And
I said that at least half of them-I had heard that a
couple of the employees might be members of the
union. And he then asked me if I had contacted the
Union or if they had contacted me. I said no and he
then, again, asked me what exactly-who were
members of the Union and I said I couldn't say any-
thing, but at least three out of four of the employees
were members.... He asked me again if I had
contacted them or who was members and I said
that I wasn't supposed to say anything and then he
just hung up on me.
About 5 o'clock that evening, after work, Herr was pres-
ent when "Tom asked Omar [Garza] if he knew anything
about the union or if he had contacted the union or if the
union had contacted him and he said no. And then Omar
got into the truck to drive the truck around to where we
put it and Tom got in with him and I didn't hear any of
the conversation from then." Garza's testimony regard-
ing this conversation with Butler, which I credit, was:
Mark Herr and I were putting the trailer on the
hitch to take it into the warehouse and Mr. Butler
approached us and asked me if I had had any con-
tact with the union or if the union had contacted
me and I said that I didn't know what he was talk-
ing about.
The Rcspondent contecnd, that Hecrr is a upervisor For reasons set
forth hereafter. I conclude that Herr is not a supervisor.
1406
SOLAHART OF FRESN()
Q. [By counsel for the General Counsel] Was
that the extent of the conversation?
A. No. From there I got into the truck and pro-
ceeded on towards the warehouse. He got into the
truck with me and asked me if I was sure that I
didn't know anything about the union and I said,
no, that I didn't know anything about it and then he
proceeded and asked me again who had gone to the
union. And I said, well, all I knew was that I wasn't
supposed to talk about it. And so that is when he
said, so then you do know about the union. And I
said all I know is I am not supposed to talk about it.
And at that time we arrived at the warehouse and
he got out and opened the door. He went back to
his office, I assume and we put the truck trailer in
the warehouse and on the way out I stopped in at
the office to pick up my folder and he asked me
again if I was going to tell him who was talking
about the union and I said I didn't know anything
about it.
According to Aguilera, whom I also credit, about 6
o'clock that evening he received a phone call from
Butler and "Tom just asked me if a union contacted me,
if I knew who went to the union and if I knew anything
about it and I told him no. He said that he didn't care if
I joined the union, but he didn't like this and he just said
thank you and that was all that was said." Despite the
Respondent's argument that Butler was only seeking a
clarification of the unit employees the Union claimed to
represent, the foregoing unrefuted narrative accounts
show that his interest was directed toward which em-
ployee had contacted the Union, who the members were,
and the extent of their knowledge of organizing activi-
ties. Had he indeed any question about the unit the
Union claimed to represent, he could and would have
made his inquiry of Garrison, whom he talked to before
interrogating the employees.
Conclusion
Since interrogation of employees by their supervisors
about union matters is not per se a violation of the Act,
the Board and the courts have delineated certain factors
which should be considered in determining whether the
interrogation tends to interfere with, restrain, or coerce
employees in violation of Section 8(a)(1). These factors
are: (1) the history of employer hostility and discrimina-
tion; (2) the nature of the information sought (e.g.,
whether the interrogator was seeking information from
which he could take action against individual employ-
ees); (3) the identity of the questioner (i.e., his position in
the company); (4) the place and method of interrogation
(e.g., whether the employee was called from work to the
boss' office-whether there was an atmosphere of "un-
natural formality"); and (5) the truthfulness of the reply
(e.g., whether the interrogation inspired fear leading to
evasive answers). NL.R.B. v. Midwest Hanger Co. and
Liberty Engineering Corp., 474 F.2d 1155 (8th Cir. 1973),
cert. denied 414 U.S. 823; N.L.R.B. v. Ritchie Manufac-
turing Company, 354 F.2d 90 (8th Cir. 1965); V.L.R.B. v.
Camco, Inc., 340 F.2d 803 (5th Cir. 1965), cert. denied
382 U.S. 926; Bonnie Bourne, an individual d/b/a Bourne
Co. v. A.L.R.B., 332 F.2d 47 (2d Cir. 1964). In .L.R.B.
v. Camco, Inc. supra, the court pointed out that intimida-
tion could occur even if all of those factors were in
favor of the employer. Furthermore. the courts have
pointed out that "employers must beware of interroga-
tion unless (I) they have a valid purpose for obtaining in-
formation concerning the union's strength; (2) they com-
municate this purpose to the employees: and (3) they
assure the employees that no reprisals will be taken."
The issue is whether the questioning could reasonably be
expected to induce fear of reprisal in the minds of the
employees. It is clear from the questions asked that
Butler was attempting to elicit not only the name of the
individual that had contacted the Union. but also the
names of other employees who were union members and
the extent of the employees' knowledge of the Union.
Contrary to the argument of the Respondent, there was
no valid purpose for finding out who contacted the
Union, whether individual employees had been contacted
by the Union, or who the union members were. More-
over, no assurance was given that no reprisals would be
taken against employees as a result of the interrogations.
In these circumstances, I reject the Respondent's claim
that it had a valid purpose in questioning the employees
and I find, as alleged in the complaint, that the interroga-
tion amounted to interference, restraint, and coercion
within the meaning of Section 8(a)(1) of the Act.
C. Alleged Changes in Terms and Conditions of
Emnploncntr
On Friday, March 21, Butler flew to San Diego to
attend a previously scheduled monthly management
meeting. He had called and advised Rose about the
Union's demand letter on March 20 and Rose had told
him to bring the letter with him to the meeting. After
reading it, Rose instructed Butler to obtain an attorney.
which he did upon returning to Fresno.
After work on Monday, March 24, Dan Escobedo in-
formed the employees that there would be a meeting the
following morning. On Tuesday, Butler met with Herr.
Lockwood, Garza. and Aguilera. Dan Escobedo and the
two office secretaries were present. Butler asked Herr
how much work was left on Van Dyke Tract 10 and
was informed 2 or 3 weeks. Butler then explained that
new tract construction had come to a stop because con-
tractors had canceled orders, and that the service work
would be slacking off in the summer. He suggested that.
since all four employees had vacation time coming.
rather than lay anyone off, the two with the most vaca-
tion time should take their vacations first, then the other
two, thereby extending the work with the hope that the
housing industry would have improved by the end of
that time. It was agreed that Herr and Lockwood would
start their vacations the following day and upon their
return first Garza and then Aguilera would take theirs.
Accordingly, Herr and Lockwood commenced their va-
cations on March 26. On that date the fo.r employees
signed and sent the following letter to the Respondent.
which was apparently received on March 27:
1407
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We, the undersigned employees, respectively re-
quest a meeting with management and the Negotiat-
ing Committee, selected by our group, at the earli-
cst possible date, for the purpose of negotiating a
contract with Sheet Metal Workers' Union, Local
No. 252, who has been selected by us to represent
our nterests.
The Negotiating Committee will consist of em-
ployees, a Representative of Sheet Metal Workers'
International Association, Don Lahr, and Alfred
Garrison, representative of Sheet Metal Workers'
Union, Local No. 252.
Also on March 27, Dan Escobedo asked Garza and
Aguilera if they had thought about "going subcontract-
ing." Garza replied that they had not, but would consid-
er it. On March 21, Butler asked the two employees to
make a decision by the following morning about whether
they would become subcontractors. On April , the two
employees met with Butler and Dan Escobedo and indi-
cated that they wanted to remain hourly employees.
After Butler stated that the Respondent would help them
out financially by giving them credit on materials and
would rent them a truck and tools, and as they had no
other choice but unemployment, they agreed to become
subcontractors commencing that day. ' Accordingly, they
were switched to a piece-rate basis and performed retro-
fit installations on a rotation basis along with Joe Esco-
bedo and Ghidelli and their crews.
By letter dated March 31, the Respondent's attorney
advised the Union that the Respondent was declining to
recognize the Union without a Board-conducted secret-
ballot election, contending also that the unit sought was
inappropriate. By letter dated April 4, the Respondent's
attorney advised Herr, Lockwood, Garza, and Aguilera,
in response to their letter of March 26, that the Respond-
ent doubted that the Union represented an uncoerced
majority of the Respondent's employees in an appropri-
ate unit and suggested resort to the Board's election
processes.
On April 7, after Herr and Lockwood had returned
from their vacations, they met with Butler at the latter's
suggestion. He informed them that there was an opening
for both of them in the Sacramento facility as subcon-
tractors. According to Herr, Butler told them that "we
either go to Sacramento or it was unemployment," and
that he would put in a good word for them with the
Sacramento facility manager." According to Butler,
Lockwood made the statement that "it is Sacramento or
unemployment" and he responded that he "didn't know
about that." Arrangements were made for the two em-
ployees to use a Fresno facility truck, with gas supplied
by the Respondent, so they could drive to Sacramento
for the purpose of talking to Meade. When they returned
from Sacramento, they told Butler that Meade had of-
fered them employment on a piece-rate basis and that
they were afraid because they did not have sufficient
funds. Butler said that he would do what he could to
Buller had occasionally discussed Ihe possibility of suhconrllrtiltg
with each of he em ployees since their initial employment.
t Butler testified ha he had previously ;lrned from Meade. the Sac-
ramento manager, that he needed some experienced personnel.
help them get started, including the rental of a truck and
furnishing materials on a consignment basis. Both em-
ployees moved to Sacramento, and on April 14 com-
menced working at the Respondent's Sacramento facility
as "subcontractors." While employed as "subcontrac-
tors," all four employees, Herr, Lockwood, Garza, and
Aguilera, were paid on a piece-rate basis, whereas before
they were hourly paid; they ceased receiving paid vaca-
tions; they were expected to furnish their own uniforms
and to utilize their own trucks and equipment, which
they either did or rented from the Respondent, whereas
before those items were furnished; 7 they were required
to furnish their own gasoline and the materials used in
making installations; they ceased accruing vacation time;
and, contrary to hourly employment, they determined
their own hours of work. Further, the Respondent
ceased making payroll deductions on their behalf.
Both Garza and Aguilera received the following letter
from Butler dated July 5, 1980, about 2 weeks after the
date it bears:
The National Labor Relations Board has recently
informed me that you would prefer to return to
hourly compensation rather than continue with our
piece-rate program. On the other hand, Dan Esco-
bedo, my installation manager, recently informed
me that our piece-rate incentive program has
worked so well for you that you now would like to
acquire an additional truck and thereby substantially
increase your income.
As you know, I have always endeavored to con-
sider your desires and interests. The conflicting in-
terpretations regarding your current desires which I
have received from the NLRB and Dan Escobedo
must now be clarified. I have decided to give you a
free choice regarding this matter. I therefore now
offer you immediate reinstatement to your former
hourly compensation at the same wages and terms
you enjoyed prior to switching to our piece-rate
program. However, if you prefer, I also now offer
you the immediate opportunity to acquire an addi-
tional truck and thereby increase your piece-rate
compensation.
Very truly yours,
Solahart
/s/ Tom Butler
By Tom Butler,
Vice President of Operations
B/vss
I choose to work under the old plan on an hourly
basis. Signed
I choose to acquire an additional truck and expand
my present working arrangement.
Signed ---------
The Respondent argues that, regardless of the Union's
demand for recognition which was received on March
20, the employees would still have become independent
7 Herr rro hrr ed a truck fromn his hrolihler-in-la'% and took over the
$150 motltlhly pay ments on it.
140X
SOLAHART OF FRESNO
contractors in April. It argues that, due to rising interest
rates, new tract installations began falling off in January,
February, and March 1980, and that numerous contrac-
tors began canceling previously made orders for solar
systems which were to be installed at new tract sites. Be-
sides, there was no hourly work left because Van Dyke
Tracts 9 and 10 had come to an end, and there was no
service work available. Further, the Respondent has had
a companywide policy of making its installers piece-rate
independent oontractors, a policy uniformly applied
throughout the world.8 Arguing that it was always But-
ler's intention to have all installations performed on a
piece-rate independent contractor basis, the Respondent
points out that Butler had discussed subcontracting with
all of the four employees on numerous occasions, and
that the only reason they had not switched over prior to
April 1980 was because prior to that time there was not
enough installation work to support their startup costs.
However, this latter argument ignores the fact that in
mid-March 1980 there was enough retrofit installation
work that Butler "let Joe [Escobedo] and Henry [Ghi-
delli] . . . split up their crews" and hire two additional
employees. Thus, it is clear that, while the Respondent
contends that there was retrofit work for only one addi-
tional crew of two men on April 1, the work had in-
creased sufficiently to require an additional two installa-
tion men in mid-March. The Respondent also explains
that the reason Herr and Lockwood were not offered the
retrofit work instead of Garza and Aguilera on April 1,
1980, was because they were on vacation at the time,
and, upon their return on April 7, there "wasn't enough
retrofit for them to do." The Respondent has not ex-
plained what happened to the 2 to 3 weeks' work that
remained on Van Dyke Tract 10 at the time Butler met
with the four employees on March 25 and arrangements
were made for Herr and Lockwood to go on vacation.
Further, according to Aguilera, a couple of days after
the March 25 meeting, Dan Escobedo asked Garza and
him if they wanted to become independent contractors,
and by April 1 the change was made.
The General Counsel argues that the Respondent's as-
serted reasons for converting the employees to subcon-
tractors are pretextual; that, while Butler had raised the
subject of the installers' becoming subcontractors on nu-
merous instances, the employees expressed no interest in
such a change, which he obviously heeded; and that only
after receipt of the demand letter and the unlawful inter-
rogations which disclosed the extent of support for the
Union were plans formulated to dissipate the unit as
quickly as possible. The General Counsel claims that the
timing of the decision to place employees on vacation,
and thereafter turn them into subcontractors, is evidence
of the Respondent's unlawful motivation.
Conclusion
As the testimony discloses, and as is reiterated in writ-
ing in his July 2 letter to Garza and Aguilera, Butler had
"always endeavored to consider [the employees'] desires
and interests" regarding conversion from employee to
" With the exceplion of the Fresno facili and distrihutorship (not
company owned) in Arizona.
subcontractor or independent contractor status. Follow-
ing the advent of the Union, however, there was a
sudden change in that policy. Thus, in early April the
four employees would either become subcontractors or
become unemployed. I have carefully considered the Re-
spondent's argument that the switch from hourly status
to piece-rate or subcontractor status was made for eco-
nomic and policy reasons, and am not persuaded. Rather,
I conclude on the basis of the record that such reasons
are a pretext and that what really motivated the Re-
spondent to take such action was its knowledge of the
employees' interest in the Union, gained through the
Union's demand letter for recognition, followed by But-
ler's unlawful interrogations and the employees' letter of
March 26, all of which disclosed to the Respondent the
extent of the employees' organizational efforts. Rather
than either granting the Union voluntary recognition or
resorting to the Board's election processes, the Respond-
ent chose to embark upon a course of conduct which
would dissipate the unit and thwart the already ex-
pressed desires of the employees to be represented for
collective-bargaining purposes by the Union. The four
employees involved herein were all experienced in all
forms of installation utilized to install the Respondent's
solar units, and had all been paid on an hourly basis
while doing so. Moreover, while the Respondent claims
it was more economically feasible to operate on an inde-
pendent contractor piece-rate basis, Butler at one point
acknowledged that he did not know how much it cost to
install a Solahart retrofit, nor whether it was more ex-
pensive for the Respondent to have it done by subcon-
tractors on a piece-rate basis or by employees on an
hourly basis. However, at another point he claimed it
was more expensive for the hourly paid employees to do
a retrofit installation.
In concluding that the Respondent's asserted reasons
for converting its installers to subcontractors are pretex-
tual, I have also taken into consideration the fact that,
while a substantial number of tract orders were canceled
in early 1980, because of PUC and tax incentives the ret-
rofit aspect of the business had increased in mid-March
to the point that Butler "let" Joe Escobedo and Ghidelli
hire two new employees and thus double the number of
crews available to perform retrofit work. Also, Butler
had recently terminated a subcontractor crew of two in-
dividuals for selling a competitor's product under the
Respondent's license. No thought was given, apparently
at either point, to converting the more experienced
hourly paid employees to a piece-rate basis even though
it was clear that tract work was rapidly coming to an
end. This convinces me that in early and mid-March
Butler had no intention of nor reason for discontinuing
the employment of Herr, Lockwood, Garza, and Agui-
lera on an hourly basis. It is further clear from the testi-
mony of the Respondent's witnesses that Rose "knew the
job was getting done" in Fresno, and that no pressure
was brought on Butler to convert the hourly paid em-
ployees into piece-rate subcontractors. There is nothing
in the record to indicate that anyone other than Butler
made the decision to make the changes that he did.
14)9
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In sum, the Respondent has failed to convince me that
the changes in employment conditions were effected for
either business or policy reasons. Rather, the timing of
the employees' union activity, the unlawful interroga-
tions, and Butler's abrupt change in their terms and con-
ditions of employment hard on the heels of the Union's
demand for recognition are clear evidence of unlawful
motivation. See, e.g., Kurt A. Perschke, a sole proprietor-
ship d/b/a Perschke Hay & Grain, 222 NLRB 60 (1976).
Accordingly, I find that the Respondent's evidence is in-
sufficient to show that it would have engaged in the con-
duct alleged in paragraph 7 of the complaint in the ab-
sence of the employees' union activities. Having conclud-
ed that the reasons advanced by the Respondent are a
pretext, it is found that it violated Section 8(a)(3) and (1)
as alleged in paragraphs 7 and 8 of the complaint. See
Wright Line, a Division of Wright Line, Inc., 251 NLRB
1083 (1980).
D. Unit and Majority Status
The General Counsel and the Charging Party contend
that an appropriate collective-bargaining unit is com-
posed of Herr, Lockwood, Garza, and Aguilera. The Re-
spondent would exclude Herr on the ground that he is a
supervisor within the meaning of the Act.
Herr had been employed by Central Valley and was
hired in December 1978 when the Respondent took over
the business. Consequently, he was the Respondent's
most experienced and senior installer, receiving $1.50
more per hour than the other hourly employees. In or
about August 1979, Herr was made tract or subdivision
coordinator, which entailed coordinating the work done
by the Respondent's employees with that done by the
other contrators on Van Dyke Tracts 9 and 10. Thus, it
was Herr's responsibility to see that the work done by
the Respondent's employees was sandwiched between
the work of other contractors at the appropriate stage of
construction.
Butler testified that he had told Herr "that he had the
authority to do anything that he needed to do to make
that thing work right and if he had any problems on any-
thing that I could do to make it easier for him that all he
had to do was say so." He claimed that he specifically
told Herr that he had the authority to reprimand em-
ployees and that he could transfer employee Abernathy
out of his crew, which Herr did. Explaining the Aber-
nathy transfer, however, Butler testified, "He [Herr] said
I can't have him [Abernathy] out there anymore, but I
don't want to see him get fired. So, can you [Butler]
transfer him into retrofit or do something with him, but
get him off the tract . . .. I said no problem. I went and
talked to Dean Darnely [an independent contractor] and
asked him if he would take him on." (Emphasis sup-
plied.) Thus, it is clear that, while Herr asked Butler to
move Abernathy, Butler was the one who exercised the
transfer authority. Butler testified that he told Herr he
had authority to hire and fire employees, but that Herr
never exercised such authority. He went on to explain
that "I told him that he had complete authority to oper-
ate that tract, to solve any problems, to assign crews. If
he needed more people, he could hire more people. He
would totally run the tract without any question whatso-
ever." He went on to explain, "At the time he was tract
coordinator, Mark would actually go out and actually
supervise the people, put them on the job, tell them what
to do and he [would] then go and do a service call,
while the three people are out on the tract. Or he may
stay there at the tract, because they are behind or he
may call me and tell me to bring in another crew to help
because they are behind and the paperer is getting ahead
of them .. .. He could hire people, but we never got
into that situation. What he would do is say, Tom, I am
running behind. I need help and then if I could-and I
always was able to-pull people from another area."
Again, it is clear that, while Butler claimed Herr could
hire, the actual fact is that Herr always called Butler
when additional employees were needed, and it was
Butler who would "pull people from another area." Herr
testified that, when he became tract coordinator, Butler
stated that he "would be in charge of coordinating the
work and stuff that was done on the new construction
tracts... . [T]aking care of-like the superintendents at
the tracts, if they have any problems or need something
done like pre-plumbing, the houses and getting checks
and organizing systems to be set up in the houses." He
acknowledged that he could switch employees from one
house to another, but denied that he had authority to
hire, fire, grant time off, or reprimand employees. Au-
thority to leave early, he testified, had to be obtained
from either Dan Escobedo or Butler. While Butler
claimed that a pay increase went along with the title of
tract coordinator, Herr testified that he did not receive a
raise until everyone received one in January 1980. The
Respondent claims that another indicia of Herr's supervi-
sory authority is the fact that he filled out and approved
employee timesheets. Herr testified that he did not do
this regularly, but only when asked to do so by Dan Es-
cobedo or when the latter was on vacation. Although
Herr passed on to Dan Escobedo his assessment of the
quality of an employee's work or whether an employee
was worth a raise, the record fails to show that his com-
ments were considered to be recommendations upon
which the Respondent relied in granting pay increases.
From the foregoing, it is clear that there is a credibil-
ity conflict between the testimony of Butler and Herr.
Having carefully observed both witnesses testify, and
having carefully reviewed the record and considered
their testimony in light of the other evidence, I have no
problem in concluding that Herr was the more reliable
witness. Accordingly, I credit his testimony that he
lacked the supervisory authorities Butler claims he gave
him. The evidence convinces me that at most Herr was a
working foreman who, because of his experience, was
the highest paid of the hourly installers and who, in his
capacity as tract coordinator, directed employees in a
routine manner which did not require the exercise of in-
dependent judgment. Further, it is clear from the testi-
mony that both Butler and Dan Escobedo were active in
a managerial and supervisory capacity and were in direct
contact with all of the employees on a daily basis. Thus,
to find Herr a supervisor would lead to an abnormally
high ratio of supervisors-Butler, Dan Escobedo, and
Herr-to three rank-and-file employees-Lockwood,
1410
SOLAHART OF FRESNO
Garza, and Aguilera. This factor serves to reinforce my
conclusion and finding that Herr is not a supervisor.
Conclusion
As Herr, Lockwood, Garza, and Aguilera had each
signed valid cards authorizing the Union to represent
them for purposes of collective bargaining by March 3,
and as the cards were properly authenticated, it is found
that the Union represented a majority of Respondent's
employees in the appropriate collective-bargaining unit
found herein at the time the Respondent received the
Union's letter demanding recognition.
E. The Refusal To Bargain
The complaint alleges that the Respondent violated
Section 8(a)(5) of the Act by refusing to recognize and
bargain with the Union, and by making changes in terms
and conditions of employment, including the attempt to
convert all of its employees to independent contractors,
without prior notification to or bargaining with the
Union.
As found, on March 19, 1980, after all four of the Re-
spondent's employees in an appropriate unit had signed
cards designating the Union as their collective-bargaining
representative, the Union requested the Respondent to
recognize and bargain with it. The request was received
by the Respondent on March 20. The Respondent has
not acceded to this request. Instead, it has engaged in se-
rious unfair labor practices, including interrogations and
the attempt to totally dissipate the unit by converting the
four employees into independent contractors. While two
of the discriminatees have been restored to employee
status, two, Herr and Lockwood, have not.
The General Counsel seeks a bargaining order. The
Respondent contends that a bargaining order is not ap-
propriate on the ground that no showing was made
either that the Union's majority status was so dissipated
that a fair election cannot be held, or that the alleged
violations were extensive and could not be remedied by
"conventional means."
It is beyond question that an employer has a right to
an election so long as it does not fatally impede the elec-
tion process. However, once it has so impeded the proc-
ess, it has forfeited its right to a Board election and must
bargain with the Union on the basis of other clear indica-
tions of the employees' desires. Here, the Respondent's
unlawful interrogation commenced as soon as the
demand for recognition was received and it thereby
learned that its employees had been in contact with the
Union. The evidence clearly shows that the Respond-
ent's next step was to embark on a course designed to
undermine the Union's majority status by totally dissipat-
ing the bargaining unit. The Respondent's unlawful con-
duct has thus prevented the holding of a fair election. As
the changes in terms and conditions of employment made
on or about April I and 7 were made at a time when the
Union had valid authorization cards from all four of the
Respondent's employees in an appropriate collective-bar-
gaining unit, it was incumbent upon the Respondent to
give prior notice to the Union and afford it an opportuni-
ty to bargain concerning the changes. Having failed to
do so, the Respondent violated Section 8(a)(5) of the
Act. In view of the nature of the Respondent's unfair
labor practices, including its attempt to totally dissipate
the unit by converting all of the unit employees to inde-
pendent contractor status, I conclude that the holding of
a fair election is impossible and that a fair and full
remedy which will most nearly restore the status quo
ante, protect the rights of employees, and effectuate the
purposes of the Act is one requiring a bargaining order
as of March 20, 1980, the time the Respondent com-
menced its course of unlawful conduct to undermine the
Union's majority status.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act and has been as of March
13, and now is, the exclusive collective-bargaining repre-
sentative of the Respondent's employees in the following
unit which is appropriate for collective-bargaining pur-
poses within the meaning of Section 9(b) of the Act:
All full-time and regular part-time employees em-
ployed as installers and service and maintenance
technicians at the Respondent's Fresno, California,
facility; excluding all other employees, office cleri-
cal employees, guards and supervisors as defined in
the Act.
3. By interrogating employees concerning their and
other employees' union interests and activities, the Re-
spondent violated Section 8(a)(l) of the Act.
4. By changing the method of payment of its employ-
ees from an hourly rate to a piece-rate basis; by eliminat-
ing employee benefits; by requiring its employees to pay
for the use of the Respondent's truck, tools, and materi-
als in the performance of their work duties; and by ar-
ranging for the transfer of its employees from its Fresno
to its Sacramento facility, all in an attempt to convert its
employees Homar Garza, Manuel Aguilera, Tim Lock-
wood, and Mark Herr to independent contractors, the
Respondent has discriminated, and is discriminating, in
regard to the hire and tenure or terms and conditions of
employment of its employees, thereby discouraging
membership in a labor organization and thereby engaging
in unfair labor practices in violation of Section 8(a)(3)
and (1) of the Act.
5. On or about March 19, 1980, the Union requested
the Respondent to recognize it as the collective-bargain-
ing representative of the employees in the aforesaid ap-
propriate unit and to bargain collectively with it as the
exclusive bargaining representative of said employees
with respect to their rates of pay, wages, hours of em-
ployment, and other terms and conditions of employ-
ment. Since on or about March 20, 1980, the Respondent
has failed and refused to recognize or bargain with the
Union as the exclusive bargaining representative of the
employees in said unit, and has instead engaged in the
acts and conduct set forth above, thereby violating Sec-
tion 8(a)(5) and (1) of the Act and preventing the hold-
1411
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing of a fair election among the employees in said appro-
priate unit.
6. The above-described unfair labor practices affect
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in
unfair labor practices within the meaning of Section
8(a)(1), (3), and (5) of the Act, I shall recommend that it
cease and desist therefrom, and take certain affirmative
action designed to effectuate the policies of the Act.
The Respondent's unfair labor practices are of a seri-
ous nature, having served to undermine the Union's ma-
jority status and preventing a fair election. The Supreme
Court has stated:
[W]here an employer has committed independent
unfair labor practices which have made the holding
of a fair election unlikely or which have in fact un-
dermined a union's majority [; where] the possibility
of erasing [their] effects . . . and of ensuring a fair
election . . . is slight [; and where] employee senti-
ment once expressed through cards would, on bal-
ance, be better protected by a bargaining order,
then such an order should issue. [N.L.R.B. v. Gissel
Packing Co., Inc., 395 U.S. 575, 610, 614-615
(1969).]
The standards necessary for the issuance of a bargaining
order laid down in Gissel are present here.
Accordingly, my recommended Order will require the
Respondent to bargain with the Union on request. It will
also require the Respondent to offer Mark Herr and Tim
Lockwood immediate and full reinstatement to their
former positions in Fresno or, if such are not available,
to positions in Fresno substantially equivalent thereto,
without prejudice to their seniority and other rights and
privileges, and to make them, together with Homar
Garza and Manuel Aguilera, whole for any losses they
may have suffered because of the discrimination against
them as found above in the sections of this Decision
dealing with the Respondent's violations of Section
8(a)(3). Any backpay found to be due shall be computed
in accordance with the formula set forth in F. W. Wool-
worth Company, 90 NLRB 289 (1950), and shall include
interest in the manner prescribed in Florida Steel Corpo-
ration, 231 NLRB 651 (1977). 9
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER '0
The Respondent, S. W. Hart & Company, Pty. Ltd.,
d/b/a Solahart of Fresno, Fresno, California, its officers,
agents, successors, and assigns, shall:
9 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962)
"' In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
1. Cease and desist from:
(a) Interrogating employees concerning their and other
employees' union interests and activities.
(b) Discouraging membership in Sheet Metal Workers
International Association, Local Union No. 252, AFL-
CIO, or any other labor organization, by changing the
method of payment of employees from an hourly rate to
a piece-rate basis, by eliminating employee benefits, by
requiring employees to pay for the use of the Respond-
ent's truck, tools, and materials in the performance of
their work duties; or by arranging for the transfer of em-
ployees from its Fresno facility to another facility, all in
an attempt to convert its employees to independent con-
tractors; or by discriminating in any other manner
against employees in regard to their hire or tenure of em-
ployment or any term or condition of employment.
(c) Failing or refusing to recognize Sheet Metal Work-
ers International Association, Local Union No. 252,
AFL-CIO, as the exclusive collective-bargaining repre-
sentative of its employees in the following appropriate
unit, or failing or refusing, upon request, to bargain with
the said labor organization respecting rates of pay,
wages, hours, or other terms or conditions of employ-
ment of its employees in the following appropriate unit:
All full-time and regular part-time employees em-
ployed as installers and service and maintenance
technicians at the Respondent's Fresno, California,
facility; excluding all other employees, office cleri-
cal employees, guards and supervisors as defined in
the Act.
(d) In any other manner interfering with, restraining,
or coercing employees in the exercise of their right to
self-organization, to form, join, or assist labor organiza-
tions, to bargain collectively through representatives of
their own choosing, to engage in other concerted activi-
ties for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all
such activities, except to the extent that such right may
be affected by an agreement requiring membership in a
labor organization as a condition of employment in con-
formity with Section 8(a)(3) of the Act.
2. Take the following affirmative action which, it is
found, will effectuate the policies of the Act:
(a) Offer Mark Herr and Tim Lockwood immediate
and full reinstatement to their former positions in Fresno
or, if their former positions no longer exist, to substan-
tially equivalent positions in Fresno, without prejudice to
their seniority or other rights and privileges, and make
them, together with Homar Garza and Manuel Aguilera,
whole for any losses they may have suffered as a result
of the discrimination against them in the manner set forth
above in the section of this Decision entitled "The
Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
become its findings, onclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
1412
SOLAHART OF FRESNO
cords necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Upon request, bargain with Sheet Metal Workers
International Association, Local Union No. 252, AFL-
CIO, as the exclusive collective-bargaining representative
of the employees in the aforesaid appropriate unit re-
specting rates of pay, wages, hours, or other terms or
conditions of employment and, if an understanding is
reached, embody such understanding in a signed agree-
ment.
(d) Post at its premises in Fresno, California, copies of
the attached notice marked "Appendix."" Copies of said
" In the event that this Order i enforced by a Judgment of a United
States Court of Appeals, the ords in the notice reading "'osted by
Order of the National Labor Relations Board" shall read "Posted i'ursu-
notice. on forms provided by the Regional Director for
Region 32, after being duly signed by the Respondent's
representative, shall be posted by the Respondent imme-
diately upon receipt thereof, and be maintained 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 the
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 32, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board "
1413