Gatliff Business Products, Inc. And Rbc Service Corp.

National Labor Relations Board - Board Decisions

Sep 25, 1985

276 N.L.R.B. 543 (N.L.R.B. 1985)

GATLIFF BUSINESS PRODUCTS 543
Gatliff Business Products , Inc. and RBC Service
Corporation and Service Employees Internation-
al Union, Local 556 , AFL-CIO. Cases 37-CA-
1888 and 37-CA-1892
25 September 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN -
On 28 February 1985 Administrative Law Judge
Frederick C. Herzog issued the attached decision.
The Respondent filed exceptions,' and the General
Counsel- filed a cross-exception, a supporting brief,
and an answering 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 briefs and has
decided to affirm the judge's rulings , findings, and
conclusions and to adopt the recommended Order
as modified.2
Amended Conclusions of Law
Substitute the following for paragraph 6.
"(6) By on or about 3 May 1982, discharging em-
ployees Dean Yokoyama, George Lorenzo, and
Dennis Uyeda, and in May 1982 refusing-to hire
Sue Mehess, the Respondent violated Section
8(a)(1) and (3) of the Act."_,
ORDER
The National Labor Relations Board adopts the
recommended Order of the l•administrative law
judge as modified below and orders that the Re-
spondent, Gatliff Business Products, Inc. and RBC
Service Corporation, Honolulu, Hawaii, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order as modified.
' Members Dennis and Johansen note that thee Respondent's exceptions
rely in substantial part on asserted facts that are not part of the record
Chairman Dotson would disregard the Respondent's exceptions because
they do not conform-to the requirements of Sec 102 46(b) of the Board's
Rules and Regulations Thus, Chairman Dotson does not reach the merits
except as that raised by the General Counsel's cross-exception .
2 In sec III(G) of his decision, the judge granted the General Coun-
sel's motion to amend the complaint to allege that the Respondent violat-
ed Sec 8(a)(3) and (1) by refusing to hire individuals who had any union
affiliation The General Counsel, in a cross-exception, contends that while
the judge made a factual finding that on one occasion the Respondent's
vice president Steckler "screened" an applicant because the individual
was a union adherent , the judge failed to include this finding in his Con-
clusions of Law, recommended Order, and remedy As set forth in the
judge's decision, Steckler admitted she refused to consider an applicant
because of the individual's union adherence In her testimony Steckler
identified the applicant as Sue Mehess This evidence is uncontroverted
We therefore find that the Respondent violated Sec 8(a)(3) and (1)- by
refusing to hire Mehess We shall modify the recommended Order and
notice accordingly We shall also provide narrow cease-and -desist lan-
guage in the notice to conform to the Order
1. Insert the' following as paragraph 1(f) and re-
letter the subsequent paragraph.
"(f) Refusing to hire an individual because' of his
or_ her union affiliation." - - ' -
2. Insert the following as paragraph 2(b) and re-
letter the subsequent paragraphs.
"(b) Offer Sue Mehess immediate employment in
the position she would have received -absent the
Respondent's' discrimination against her or, 'if that
position is no longer available, to a substantially
equivalent position, and make her whole for any
loss of pay that. she may have suffered by reason of
the Respondent's discrimination against her in ac-
cordance with the provisions in the section of the
administrative law judge's decision entitled `The
Remedy."' -
3. Substitute the"attached notice for that of the
administrative law judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and' abide by this notice.
Section 7 of the Act gives employees these rights.
To organize -
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act'together for other mutual aid or 'pro-
tection -
. To choose not to engage in any of these
protected concerted activities.
WE WILL NOT discourage membership in, or ac-
tivities on behalf of, Service Employees Interna-
tional Union, Local 556, AFL-CIO, or any other
labor organization, by discharging or laying off
employees or refusing to hire applicants or other-
wise discriminating against them because of their
union support or activities.
WE WILL NOT interrogate employees about their
own, or other employees',- union activities, lean-
ings , or sympathies. -
WE WILL NOT threaten to exact economic repris-
als from employees on account of their union ac-
tivities, leanings , or sympathies.
WE WILL NOT threaten to close the business, or
to withdraw economic support from it, or to lay
off employees, or to deny promotion to employees
276 NLRB No. 60
544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
because of their union activities, leanings, or sym-
pathies.
WE WILL NOT impart to employees that they
will be granted benefits in the event they, choose
not to select a union as their,. collective-bargaining
representative. .
WE WILL NOT impart to employees that their
union activities have been kept under surveillance.
WE WILL NOT.in any -like or related manner
interfere with, restrain, or„coerce you in the exer-
cise of the rights guaranteed you by -Section 7. of
the Act. -
WE, WILL offer John •Burkman , Robert Garcia,.
Gregory Hower, Priscilla Hussey,--Nathan Kaawa,
Ernie Lee, Eldred Like, Thomas Perkins, Leroy,
Smith, Carl Tavorn, Stanford Tokioka, Georgia,
Chai, Paul Matsuda, Bounthan Sengdara, • Dean •Yo-
koyama, George Lorenzo, and Dennis Uyeda im-
mediate and full reinstatement to their former jobs
or, if their jobs no longer exist, to substantially
equivalent positions, without prejudice to their se-
niority or any other rights or privileges previously
enjoyed, and, should any such employees still be
participating in a 'strike against us, we will, at such
time as the employee's "choose to discontinue strik-
ing, immediately, reinstate him/her or them, as pre-
viously set forth. '
WE WILL offer Sue - Mehess immediate employ
ment in the position she would have received had
we not discriminated against her or, if the position
is no longer available, to a substantially equivalent
position. -
WE WILL remove any references to the, layoffs
and/or discharges of the employees named, above
from his or her personnel file, or any other records
maintained by us, and WE WILL NOT use his or her
discharge or layoff as a basis for any future person-
nel action against him or her.
WE WILL make all the employees named above
whole for any loss of pay he or,` she may have suf-
fered `as a result of our discrimination ' against him
or her, with interest. _
GATLIFF - BUSINESS PRODUCTS, INC.
AND RBC . SERVICE CORPORATION A
Thomas Cestare, Esq. and Charles Khim, Esq., of Honolu-
lu, Hawaii , for the General Counsel. .
Richard M. Rand, Esq. (Torkildson, Katz, Jossem &
Loden), of Honolulu, Hawaii , for the Respondent. '
Randall N. Harakal, Esq., of Honolulu , Hawaii , for the
Charging Party. .
DECISION
STATEMENT OF THE CASE
FREDERICK C. HERZOG , Administrative Law Judge.
Based on charges filed by Service Employees Interna-
tional Union , Local 556 , AFL-CIO (the Union) alleging
that Gatliff Business Products , Inc. and RBC Service
Corporation (the Respondent or the Company) has en-
gaged in , and is engaging in, unfair labor practices within
the meaning of Section 8(a)(1) and (3) of the Act, com-
plaints , later to be consolidated , were issued in the
above-captioned cases.
Pursuant to notice , the hearing was conducted before
me in Honolulu , Hawaii , February 3-11, 1983. All parties
appeared at the hearing , were given full opportunity to
participate , to adduce relevant evidence , to examine and
cross-examine witnesses , to argue orally , and to file
beefs . Based on the record thus compiled , including my
analysis - of the briefs from the General Counsel and the
Respondent , I make the following
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The pleadings, as amended, demonstrate that the Re-
spondent is made up of Hawaii corporations, with offices
and places of business located in. Honolulu, Hawaii. The
Respondent is engaged in the business of providing sales,
service, and rentals of business copying machines.
During the calendar year preceding the issuance of the
complaint, the Respondent, in the conduct of the above-
described business operations, collectively derived gross
revenues in excess of $500,000, and collectively pur-
chased and received goods and materials directly from
firms located outside the State of Hawaii valued in
excess of $50,000. At all times material herein the Re-
spondent has collectively been an `affiliated: business en-
terprise, with common officers, common owners,
common directors, common management, and 'supervi-
sion and, as formulated and administered, a common
labor policy affecting employees of its operations, de-
scribed above, sharing common premises and facilities,
and providing services. for and making sales to each
other with interchange of personnel. .
Accordingly, it is 'found and concluded that Gatliff
Business Systems; Inc., and . RBC Service Corporation,
constitute a single integrated business enterprise and a
single employer within-the meaning of the Act and, fur-
ther, that the Employer is now and has been at all times
material an employer engaged' in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION -
The complaint alleges that the Union is, and at all
times material has been , a labor organization within the
meaning of Section 2 (5) of the Act . Based on the admis-
sion contained within the Respondent 's answer to the
complaint , I. find and conclude this allegation of the con-
solidated complaint to be true.
GATLIFF ' BUSINESS PRODUCTS 545
III. THE ALLEGED UNFAIR LABOR -PRACTICES
A. Background '
It is undisputed that the Respondent's two corpora-
tions operated prior to the spring of 1982,' the time
period when most events of. concern herein occurred,
without union" representation 'for employees. The busi-
nesses appeared- to -have been run essentially by Gary
Gatliff, with some help from his wife, Jane. Gatliff was
also assisted by a controller, Curt Wheeler, and a vice
president, Linda Steckler. For administrative purposes it
appears that Gatliff separated the Respondent into de-
partments, and gave each separate department head the
title of 'director„whether-that person actually was a su-
pervisor or not.'(In several instances, there were either
no other employees in the department or only one
other.) - "
The Respondent was structured so that RBC Service
Corporation functioned as a servicer of copy machines,
selling only related supplies; in contrast, Gatliff' Business .
Products, Inc. generated most of its revenues through
the actual sale of copying machines. Gary Gatliffi
served as president of RBC Service Corporation and,
since November 1982, also served as president of Gatltff
Business Products, Inc., having assumed that position
from his wife, Jane. Wheeler served as controller"of Gat- -
liffBusiness..Products, Inc., as well as treasurer and sec-
retary, of RBC ,, Service Corporation. -Linda Steckler
served as vice president of RBC Service Corporation.
As will be set forth more fully at a later point, the Re-
spondent claims .that its business had been deteriorating,
and had become increasingly unprofitable in the months
immediately preceding the inception of 'an organization
effort on the part of the Union.
Following the receipt of the Union's petition for repre-
sentation election from the Board's offices, Gatliff imme-
diately began'a series of contracts with employees which
lasted up through the time of the representation election,
a time span which covered roughly all of March and the
early part of April 1982. '
For ease of review, I shall deal with these contracts in
the same order as they are set forth, in rough chronolog-
ical order, in the General Counsel's brief, as follows:
In late February2 and early March, the Union began
organizing the Respondent's employees.3 By March 5,
1982, the Union filed its petition to represent the employ-
ees at Gatliff Business Products, Inc. On March 22, the
parties entered into a Stipulation for Certification Upon
Consent -Election providing ' for an election among all
full-time and regular part-time employees of the corpora-
tions known as Gatliff Business Products,: Inc and RBC
Service' Corporation within the State of Hawaii. -The'
election was conducted on April 13. Of approximately 37
eligible voters, 20 cast ballots in favor of the Union and
11 voted against representation by the Union, there being
t Whenever the surname Gatliff appears without a" first name mdicat-
ing a specific intent to refer to Jane Gatliff, it should-be taken to refer to
Gary Gatliff
2 Unless otherwise noted, all dates shall refer to the calendar year of
1982 „ -
3 The Union's president was Laurance Ah Nee and its vice president
was Gary Elliott. •
5 challenged ballots. On April 21,' the Union was certi-
fied',as,the collective-bargaining representative of all the
employees in the unit described above.
B. The Alleged-8(a)(1) Independent Violations
The General Counsel alleged and has attempted to
prove that during the period from the inception of the
organizational campaign until shortly after the Union's.
certification the Respondent, operating primarily through
Gary Gatliff, engaged in a long series of unfair labor
practices involving the great bulk of its employees.
Generally speaking, the allegations of the General
Counsel are that the Respondent interrogated its employ-
ees about their union activities, threatened them with re-
prisals, imparted: the impression to employees that their
union . activities were being kept under surveillance, in-
formed. employees that selection of the Union as their
collective-bargaining representative would be an act of
futility, threatened employees with closure of its business
operations, and promised employees benefits if they
would refrain from joining the Union or selecting it as
their 'bargaining representative.4.
The Respondent's position may be summarized, gener-
ally, as disputing the factual accuracy of many of the.
statements ;- testified to by the General Counsel's wit-
nesses.5 -
The factual detail necessary to understand and resolve
the issues noted above is as follows:6
1. Priscilla Hussey testified that in early March, while
employed as a secretary-receptionist for the Respondent,
she was called into Gatliff's office and that, while there,
she gained her first knowledge of the Union by his ques-
tions about whether she had heard about the Union.
coming in to organize the Company. She responded that
she had, not and that this was the first time she had heard
of it. After he informed her that he had never had a
union within this company; that he had never, worked
with a union 'before, and that he did not like them, he
asked her how she felt about unions. She responded that
she "wasn't too fond of them." Gatliff then asked her if
she knew or had heard of the president of the Union, Ah
Nee. She again responded negatively. Gatliff then asked
if she would help support. him and she responded that
she would do what was best for the Company and that
he would•have to learn to trust her with that. According
to Hussey, the conversation concluded with Gatliff tell-
ing her that because of the Union's organizational efforts,
his hands were tied and that he would be unable to ac-
commodate her desire to move from her clerical position
to one in which she served customers out in the field. -
4 Additionally , the complaint alleges that the Respondent violated'Sec
8(a)(3) ind'(1) of the Act by discriminatorily laying off a number of em-
ployees, as well as by. advising other employees of their outright dis-
charge •
5 In any event,'the layoffs and the discharges were privileged by virtue
of the dire economic circumstances it then faced Further, the Respond-
ent asserts that while it did discharge two individuals named by the Gen-
eral Counsel it was privileged to do so by virtue of their status as super-
visors who had disregarded instructions and had displayed disloyalty
during the organizational campaign
6 These items are discussed in the same order as they were presented
in the General Counsel's brief, for-ease of reference
546 • DECISIONS OF NATIONAL LABOR RELATIONS BOARD
That evening Hussey telephoned Steckler, the Re-
spondent's vice president. In the course of a conversation
concerning personal matters Hussey mentioned the
Union Steckler then asked her how she felt about it.
Hussey responded that she was not too sure.
The next morning she was once again summoned by
Gatliff to his office. She testified that he then asked her
if she would support him,' and she once more tendered
an evasive answer, to the effect.that she would do what
was best for the Company. She testified that Gatliff'
asked her if she knew who might be bringing the Union
into the Company and that she responded that the only
person that she knew to be affiliated with the Union was
an employee named Stanford Tokioka, but that she felt
that it could be anybody else as well.
Gatliff recalled having a conversation with Hussey in
early March, and that he told her that the petition for a
union election had been filed. However, his recollection
was that it was Hussey who did most of the talking, and
that she told him that she was very upset, and inquired
about what they were trying to do. He specifically
denied asking her whether she had heard the Union was
coming into the organization, how she felt about unions,
or that he ever gave her to understand that the position
of a field customer relations representative would be
withheld because the Union was coming in; although he
admits that he did tell her "it might be a problem, but
that he didn't know." He recalled no other one-to-one
meetings with her regarding the subject. He admitted
that he asked her for her support and testified that he did
not recall whether or not he asked whether she was for
him. He, denied that he ever asked her if she knew who
had started the Union. He also denied that either he or-
Hussey ever pointed out Stanford Tokioka as the person
respoiisible•for bringing the Union into 'the Company.
Steckler did not testify concerning the telephone con-
versation with Hussey.
Based on testimonial demeanor, I found Hussey to be a
completely credible and truthful witness. She seemed
composed. and accurate in her testimony. I agree with
the argument advanced by the Respondent's counsel that
she was not able to be absolutely consistent, but I regard
this failing as having no bearing on her credibility, for it
is common for witnesses to testify credibly and yet have
the sort of failures -of precision which are pointed out by
the Respondent's counsel. Gatliff, though also composed
and-direct, evidenced a desire to fence, prevaricate, and
dissemble during his testimony. He seemed smug, to the
point of demonstrating a love for the fray. Steckler,
though visibly nervous and self-conscious, seemed rea-
sonably credible.
The testimony of Hussey is credited over that of either
Gatliff or Steckler. Accordingly it is found that Hussey
was interrogated by both Gatliff and Steckler,,and given
to understand that future advancement would depend
upon her loyalty to the Respondent in connection with
the Union's organizational attempts.
2. Employee Paul Matsuda7 was called into Gatliff's
office sometime during the week of March 7-11. Mat-
7 At a later point I have found that Matsuda was an employee, rather
than an supervisor, as claimed by the Respondent.
suda testified that Gatliff showed him a folder containing
letters requesting a hearing before the NLRB' and asked
him if he knew anything about it. He stated that he an-
swered in the negative, albeit untruthfully, due to his ap-
prehension about being fired. ,
I credit Matsuda's unrebutted testimony in this regard
'and, in .view of my finding that he was an employee,
rather than a supervisor, reach the further finding that
such an interrogation constituted a violation of Section
8(a)(1) of the Act. While it is true that Matsuda was the
senior technician, and probably enjoyed a closer relation-
ship with Gatliff than did newer employees or less expe-
rienced employees, the evidence here does not warrant a
finding that Gatliff was privileged to engage in such in-
quiry, either by virtue of any personal relationship with
Matsuda, or by virtue of any open and obvious activities
carried out by Matsuda on behalf of the Union. Compare
Rossmore House, 269 NLRB 1176 (1984).
3. Employee Ernie Lee testified that,about March 15,
around 4:30 in the afternoon, Gatliff called him into his
office and inquired whether or not he had heard any-
thing about a union trying to organize the employees.
Lee' responded that he knew nothing about it. Lee re--
called that Gailiff then began speaking about. the Re-
spondent's precarious financial situation, telling Lee that
the Company was losing money and that he had had to
mortgage his home four times in order to keep the Re=
spondent afloat, but that if the Union came in, he would
not put more money into it. According to Lee, Gatliff
ended up by telling him that before he was "dismissed,"
Lee should think these matters over and tell them to em-
ployees.
Gatliff's testimony was not direct on this point. But he
did deny that he interrogated any of the employees as to
whether they knew about the Union organizing the Re-
spondent.
I found Lee a highly credible witness and, according-
ly; credit his testimony over that of Gary Gatliff. I find
nothing in the relationship between Lee and Gatliff to
suggest that Gatliff's inquiry was privileged, or that his
veiled threat of dismissal was permissible. I find both to.
be violations of Section 8(a)(1) of the Act.
4. Employee Thomas Perkins testified that on March
15 or 16 he was called into Gary Gatliff's, office, togeth-
er with fellow employees Mike Statia and Dean Yo-
koyama. According to Perkins, Gatliff opened the meet-
ing by stating that he heard that the Union was trying to
come in and that he could not understand why employ-
ees would sign union cards. Perkins went onto recount
that Gatliff told him that the Respondent was in financial
difficulties and that the Union could not stimulate any
money for the Company. Perkins testified that Gatliff
showed the employees the corporate tax return forms
and pointed out that they demonstrated losses. He said
that Gatliff stated that he had $50,000 that he would put
into the Company if the Union did not win. He recalled
that Gatliff called, on them to stick together with him
and perhaps all would get out of the financial difficulties.
He stated that Gatliff referred to the president of the
Union, Ah Nee, as a person having Mafia connections,
and asked if employees wanted to be represented by such
GATLIFF BUSINESS PRODUCTS 547
a man . With leading questions, Perkins was able to recall
that a union cannot do certain things, such as guarantee-
ing raises. On cross-examination he was asked whether'
or not Gatliff asked him any questions during the course
of this meeting and Perkins responded that Gatliff asked'-
all three employees 'present how they felt about the
Union. Perkins was unable-to recall his response.
Neither Stacy nor Yokoyama was called as a 'witness
by the General Counsel: Nor was their absence ex-
plained.
Gatliff °testified that in this meeting, as in ' others he
held with employees, he opened by telling employees
that there was a union attempting to come in, that he
was campaigning, and that he customarily reminded em-
ployees in, such meetings of the many years that the Re-
spondent had been' in business,' and how growth had
been experienced, and how that had been accomplished
without- a union 's presence, and that, if the Union did
come in, it would be unable to guarantee that 'further
growth would occur. He emphasized to employees that
unions could guarantee `nothing. He specifically denied
telling Perkins or anyone else that he could understand
why they would sign a union card, or even mentioning
union cards. He stated that the only question he asked of
employees in such meetings were rhetorical ones (i.e.,
How would the union make the Respondent more profit-
able, give it more business, make: it expand, or create
more jobs?). He denied referring to the Union's president
as Mafia, though he admitted he said - that he had the
"mock-up of a Mafia person."
Perkins impressed me as a person attempting to testify
truthfully; but I was not favorably impressed by his
recollection. In view of the failure of corroboration, and
the evident difficulty encountered by Perkins in recalling
accurately, I do not credit his testimony over that of,
Gatliff in connection with these allegations. Accordingly,
I find no violations concerning these events.
5.' The General Counsel called employees Nathan
Kaawa and Robert Garcia to testify concerning a meet-
that they were called to by Gatliff. The meeting oc-ing
curred in mid-March in Gatliffs office, where he was ac-
companied •by Steckler.
Neither employee's account agrees perfectly with'the
other's. -Generally speaking, they were in agreement that
Gatliff mentioned to them that a 'union was attempting to
gain representational rights. According to Kaawa, Gatliff
said that he wanted to find out if they knew anything
about it. In Garcia's phraseology, Gatliff asked them if
they knew anything about a union and also asked how
they felt about a' union. Both employees agreed that Gat-
liff showed them some papers indicating that the finan-
cial condition of the Respondent was poor, though both
obviously failed to understand the details of what they
were shown. Kaawa recalled Gatliff saying that, if the
Union came in, the Respondent 'could not pay them any
more money, while Garcia's recollection was that Gatliff
said that the Company would go bankrupt.' Both men re-
called that he spoke of having mortgaged property so
that a bonus system could be implemented. Each recalled
that he then turned to Steckler and asked for her confir-
mation that -she was, in fact, 'working on a bonus plan.
According to Kaawa, Gatliff said that if the Union came
in the bonus plan would be stopped. Both employees re-
called that Gatliff told them that the Respondent did not
need a delivery service, and that, if need be, the salesmen
could make their own deliveries 'of machines which they
sold.8
Under. cross-examination, Kaawa testified that Gatliff
warned that in'the event the Union came there would be
a layoff, without saying ' who would be laid off. Also,
Kaawa recalled on cross-examination that Gatliff asked
whether or not he had signed a union card. Finally,
Kaawa recalled that the meeting lasted approximately 1,
to 1-1/2 hours. '
Other, than as previously mentioned, Garcia did not
testify that Gatliff threatened that a layoff would occur
in the event that the Union succeeded' in representing the
employees. Nor did 'he recall that Gatliff asked him
whether he had signed a union card. And, finally, in
Garcia's recollection' the meeting lasted only 15 or 20
minutes.
Gatliff recalled meeting with employees Kaawa and
Garcia, in the company of Steckler, on March' 15. As he
recalled it, he "made a presentation," and told them that
he wanted to talk.to them because there was a union
knocking at the door. He said that he wanted to ^ tell
them what was going to go on because he wanted them
to be able to support the Company. He told them that
RBC lost $80,000 during the previous year and showed
them a copy of the tax return. He-explained that they
were in a precarious financial situation, that the Compa-
ny was responsible for creating their jobs, and that,
before creating their jobs or the delivery department, the
Respondent had.had salespeople make their own deliv-
eries. He reiterated that unions cannot and do not create
jobs. He asked for their loyalty to the Company. He re-
minded them. before there was a delivery department the
Respondent's operations had been much less expensive,
but since they already had a delivery department they
were happy with it and they hoped that' the employees
appreciated that fact. As he recalled,' he talked for about
15 minutes , and covered various things, such as the. fact
that unions cost money, • that unions do not make money,
that unions cost companies, that unions cost employees
who belong to unions in, the way of dues and fines, and
that unions. cause companies to expend funds' for legal
fees, etc. He also, recalled telling them that unions can
put employees out of work because they can call strikes.
He denied asking them any questions other than the rhe-
torical ones of whether or not anyone, knew of a way a
union could cause a company not to have losses, or to
cause a company to have increased sales, or to have in-
creased profitability. He. specifically denied that he asked
the employees how they felt about the Union, whether
they knew, anything about .the Union, or that he told
them that he would stop the bonus system if the Union
came in. He admitted that he mentioned the bonus
system and told them that this was something the Com-
pany, had done for them. He denied that the employees
Kaawa and Garcia were the only two employees employed by the
Respondent to make deliveries While Kaawa had the title of director of
transportation, it was stipulated at the hearing that no party claimed that
he was a supervisor.
548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were told that if the Union came in there would be a
layoff. Though he did admit that if, there were to be a
layoff that the Union's seniority system would cause
those with less seniority to be laid off first. Finally, he
denied that he menioned the possibility of using the
money that was then being used for their wages to buy
two or three more vans, so that the situation could be
worked out where they were not needed.9
Steckler failed entirely to corroborate Gatliff's account
of this meeting. When Steckler was asked on direct ex-
amination whether or not she recalled being present at
any meetings, with Gary Gatliff where she spoke about
the Union, she responded affirmatively. She then was
asked to tell about it and she responded by saying that it
was in Gary_ Gatliff's office with Kaawa and Garcia
around 8:30 one morning near the end of March. But
then, jumping.away from the questions she had just an-
swered a moment before, she was asked if she had said
anything. She responded negatively. Then, without
asking her any questions about what went on in the re-
mainder of the meeting, and her recollection of what
Gatliff said, the questions were directed to other events.
I can only conclude that such questions were put to
her purposefully, and that she was not asked about her
recollection of what Gatliff. had said to Kaawa and
Garcia because it was known to her that the answers
would be unfavorable. to the Respondent. See Advanced
Installations, 257 NLRB 845, 849 (1981), and cases cited
therein.
I observed that Kaawa was a candid and straightfor-
ward witness, but one who suffered from an inability to
understand or speak the English language with precision.
Garcia also impressed me as truthful. However,- he suf-
fered no disability such as Kaawa's and, overall, made an
extremely favorable impression upon me for his veracity
and his ability and willingness to recall and recount with
precision and care.
As I have already indicated, I have difficulty in. credit-
ing the testimony' of Gatliff. One basis for my difficulty
is that he seemed to be summarizing, or running together
the details of a number of meetings, when asked about
any particular one of them. Steckler's credibility is not,
an issue at this point because no testimony was offered
from her concerning the meeting between Gatliff,
Kaawa, and Garcia.
Accordingly, I credit the testimony of Garcia in par-
ticular, and Kaawa generally regarding this meeting,
over that of Gatliff.
Accordingly, I find and conclude that during the
course of this meeting employees were interrogated, and
impliedly threateiied with the loss of a bonus system pre-
sented to them as still being under consideration, as well
as expressly. warned about a possible layoff. Finally, Gat-
9 It was my very strong impression when listening to the testimony of
Gatliff (as it was in reviewing the record) that Gatliffs memory regard-
ing this and similar meetings was not precise - Gatliff conceded that he
conducted a "campaign," part of which consisted of a series of meetings
with a number of employees, following receipt of the petition for a repre-
sentation election I am drawn to conclude , and I do, that Gatliff, in his
testimony concerning any particular meeting, was, in fact , reciting his
generalized recollection of a number of meetings.
liff made a threat to abolish their jobs by setting _up a
system whereby salesman delivered their own machines.
6. Georgia Chai, the Respondent's dispatcher,' ° testi-
fied that in mid-March after work Gatliff came into the
dispatch office and asked her how she felt about unions,
as well as whether or not she would support the Re-
spondent. She testified that she told Gatliff that he had
her support and that she would support the Company.
Gatliff did not testify concerning this point.
In view of Ithe Respondent's failure to inquire into this
matter when Gatliff was testifying I have determined to
credit Chai's testimony. I observed Chai to be a well-
spoken and thoughtful witness during her direct exami-
nation, but was unfavorably impressed by her extreme
caution and betrayal of ,very deep inner, feelings during
the course of her cross-examination. I note, additionally,
that Chai is now an employee of the Union, working as a
business representative; while that in itself would never
impugn her credibility, it does present an added element
of possible bias which I must consider. _
While I have some reservations, on this point, I have
determined that, on balance, Chai's testimony- should be
credited over that of Gatliff.
Accordingly, I find and conclude that in interrogating
Chai, Gatliff violated. Section 8(a)(1) of the Act.
7. Standford Tokioka testified that around March 24
he and Gatliff flew in the Respondent's airplane to the
island of Kauai to help the Respondent's technician sta-
tioned there. He went on to relate that, while he was
taking Gatliff to the airport on Kauai for the return trip,
Gatliff asked him how he felt about the Union. Tokioka
testified that he assured Gatliff that his feelings were
negative about the Union, inasmuch as the timing of the
campaign was poor from an economic standpoint.
According to Gatliff, all that happened was that he.
mentioned to Tokioka that he was very concerned about
the Union and was hoping for Tokioka's support. He re-
called that Tokioka responded that he too was con-
cerned, and thought that it was a poor idea to try to
bring a union into the Respondent at that time because of
its poor economic condition.
While Tokioka presented slight difficulties with the
language , he was nonetheless an impressive witness, who.
left me with the impression from his demeanor that. he.
was being truthful and credible. As with other instances,
however, Gary Gatliff seemed to me to be summarizing,
and having difficulty keeping one meeting separated
from another. I have determined, as a result, to credit
Tokioka's testimony.
Accordingly, I find that by his question to Tokioka,
Gatliff interrogated him in violation of Section 8(a)(1) of
the Act. i i >
8. Employees Hussey, Chai, and Carl Tavorn were
called into Gatliff's office around March-24. There Gary
Gatliff presented them with tax statements for the Re-
spondent's 1981 tax year and asked them to review them.
Then he started talking about the Union with them. He
10 The Respondent 's contention that Chai was a supervisor is treated
and rejected at another section hereof
" As an example of Gatliffs deficient recollection , see his responses to
questions concerning meetings with employees
GATLIFF BUSINESS PRODUCTS
noted the fact that the Union was attempting to organize
them and he wanted to show them the tax returns to
show,them that the Respondent was losing money and in
order to elicit their support. Each employee recalled that
Gatliff asked Tavorn if he knew how the Union's cam-
paign got started. Tavorn then related how his experi-
ences with unions on the mainland had given him some
insight.
It seems clear that Tavorn told Gatliff that he and
Tom. Perkins and other employees of the, Respondent
had been active in starting the Union's campaign, but
Tavorn seemed not to recollect that this was done in re-
sponse to a question from Gatliff, as Hussey and Chai
seemed to recall. Tavorn went on to state, however, that
Gatliff told him that he was not going to negotiate with
Larry Ah Nee, the Union's president, saying, "He's not
going to get me; I'm going to get his ass."
Gatliff initially claimed that he had only a vague
recollection of a meeting with these three employees; but
his recollection was remarkably similar to theirs. For ex-
ample , he filled in the blank and admitted that when _
Tavorn mentioned "that he was indifferent, that he
didn't -know what to think when Tom [Perkins] handed
him the union cards and I [Gatliff] said, `Tom Perkins?'
[Tavorn] said, `Yeah` and I turned to [Chas] and [Hussey]
and-hel'd up my hands and said, 'I'd like for you to ob-
serve, I did not ask him that' and I said that twice, and
they both acknowledged me." He went on to testify that
he asked no other questions, and to specifically deny that
he asked how the "union" got started or how the techni-
cians felt about unions, or what they knew about unions,
or that he was not going to, negotiate with Ah Nee or
that he was going to "get" Ah Nee. Specifically, he '
denied that Tavorn was told that if there was a layoff-he
would be the first to go, or that he asked the employees-
for feedback about the Union, while stating that employ-
ees who brought in the Union were disloyal to the Re-
spondent. 12
Tavorn impressed me as a truthful and reasonably
credible man, although somewhat lacking in precision.
However, in light of the fact that his testimony was cor-
roborated' in most substantial parts by Hussey, who was
an extremely credible witness, I have determined to
credit it over that of Gatliff. While Gatliff appeared to
have a better recollection of this particular meeting than
he had for others, I did not believe that these three em-
ployees all fabricated their story.
Accordingly, I find and conclude that Gatliff's inquir-
ies about how the Union got started, how the technicians
felt about it, or what • caused them to 'go toward the
Union, and Gatliff's statement that he would not negoti-
ate were all violative of Section 8(a)(1) of the Act.
9. Bounthan , Sengdara, a handyman for the Respond-
ent, testified that sometime during March or April, while
he was painting Gatliff s house, Gatliff came to him and
said ,. "They want you make the vote, you mark no. You
mark no, you can work with me." 13 Later that day Jane
12 According to Hussey, Gatliff asked them why the technicians felt
they needed a union Tavorn also recalled this question coming from
Gary Gathff
13 Sengdara , a Laotian refugee, had extreme difficulty in understanding
or speaking the English language Whether or not . he also experienced
549
Gatliff came out of the house and told Sengdara that
nobody liked the Union. -
Gatliff recalled that sometime during - February or
March, he had Sengdara paint his house As he recalled
it, Sengdara asked him- what a union was and he re-
sponded to Sengdara that the Union was no good, that it
was the Company-that gave him his job and not the
Union,, and told him to "go company," to which Seng-
dara replied, "Ah, yes; Mr Gary." 14
Sengdara -obviously had profound difficulties in under-
standing or recounting'any conversation which occurred
in English. While I am convinced that he gave a basical-_
ly accurate recital of his dealings with Gary Gatliff, I am
also persuaded that I can find no violation of the Act
based on testimony from a witness so clearly susceptible
to misunderstanding. Thus, whether Sengdara's contin-
ued employment was conditioned on his, promise to vote
no remains a question in my mind. Accordingly, this alle-
gation shall be dismissed.
10. Employee Tom Perkins testified that, in the -latter
part of March, Gatliff and he were in the Respondent's
parking lot and Gatliff said, "I hear you are the one
that's starting the Union." According to Perkins,'he re-
sponded evasively by saying to Gatliff that' he was talk-
ing to the wrong person -•
When asked whether or not he had asked Perkins if he
was the one" passing union • cards, Gatliff responded
equivocally. According to Gatliff, -he passed Perkins in
the parking lot and walked over to him and said, "Tom,
you are the one." He then recalled that Perkins- asked,
"The one that what?" and " that he, Gatliff, replied,
"You're the guy-that started the Union." As Gatliff re-
called, Perkins gave some answer to the effect that he
had the wrong guy, or that it was not him, Gatliff then
gave him reassurance that' he did not have to worry
about it - "
Based on either version of the facts in this incident, I
find that Gatliff unlawfully interrogated Perkins and
gave him the impression that his union activities were
being kept under surveillance.
11. Employees Leroy Smith, Gregory Hower, Eldred
Like, and Ernie Lee were called into Gary Gatliff's
office for another of the "presentations" about March 26.
As usual, Gatliff told them that a union had filed a peti-
tion. According to Hower, Gatliff predicted-to them that
there would be layoffs due to the fact that he had put his
own personal money into the Company and, if the Union
were to win the election, he would stop putting his per-'
sonal money in. He recalled that Gatliff explained that
the Company was in a bad financial situation. According
to Lee, Gatliff spoke of the Company's perilous finance's,
plus his plans and hopes for establishing an incentive
program which would result in giving technicians more
difficulties in understanding the -way in which union representation is
gained should be considered in light of his admission that, before the
election, he telephoned Gary Gatliff and said, "I-want to money up I
think I make no for you if money up for me "
14 Like Sengdara, Gatliff recalled Sengdara calling him on the phone
in the evening and telling him that he needed more money After at-
tempts to explain why he could 'not give more money to Sengdara had
failed , Sengdara responded , "Mr Gary, you give me more money, I vote
for you " According to -Gatliff, he denied Sengdara's proposition
550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
money. He recalled that-Gatliff said that this could only
happen if the Union did not come in. He recalled that
Gatliff asked them to talk to other employees out of their
allegiance toward the Union. Like testified that during
this meeting Gatliff asked him-and each of the other em-
ployees how they felt about the Union, but that no em-
ployee answered. He recalled that Gatliff told them that
the Respondent was losing money and did not under-
stand what the Union could do for them. -He recalled
that Gatliff mentioned having mortgaged his house three
times in order to put money into the Company, but then
Gatliff then stressed that he was willing to give up,- the
Company, to ; close it down. However, unlike Lee or
Hower, Like was unable to recall Gatliff talking about
layoffs in that meeting. Smith, who was apparently only
a short-term employee, did not testify.
Gatliff testified, admittedly with a hazy recollection,
that when he called these employees in, greeted them,,
said that he wanted to talk to them about a union being
at their doorstep,, and that he wanted to let them know
what was going on with the Company. He then-proceed-
ed to tell them that the Company was having, serious fi-
nancial difficulties, that he had personally and recently .
signed banknotes, that he had four mortgages on . his
house, and that he was very concerned about the health
of the Company. He told them that he was very con-
cerned about productivity and hoped that people would
vote for him in the election. He told them that a union
could not help "us." The only question that he recalled
asking these employees was whether they knew of any
way 'a union could keep a company healthy when it is
suffering. He specifically denied that he asked if they
knew anything about the Union petitioning, or make any
predictions concerning layoffs (though he did discuss
layoffs). He said that he told them that one problem with
belonging to a union, a disadvantage in his view, was
that normally unions operate on principles of seniority,
which he told them necessarily requires that shorter term,
employees are laid off before those of longer tenure. He
admitted that he told these employees that he had bor-
rowed a final $50,000 as a fourth mortgage on'his house,
and that he was very worried about putting any more
money into the Company,because of. the losses that, he
had had. He denied, however, that he told them that he
was willing to give up,the Company. He admitted that
he did say that if the Union came in, and if things were
to worsen financially,. and if the Company went bank-
rupt, that he was worried for everyone in general,
though not necessarily for himself. He denied telling em-
ployees that there were no problems that the Union
could solve for them.
There were some variations between the stories of
Hower, Like, ,and Lee, but I did not find such variation
inconsistent with a desire or an attempt to tell the truth.
To the contrary, these differences seemed to be of the
sort which routinely occur when a number of,people
hear the same conversation. 'None of these accounts seem
to be especially contradicted by Gatliff's words. I have
determined to credit the testimony of Hower,'Like, and
Lee to 'the effect that Gatliff threatened them with the
Spector of layoffs in the event the Union succeeded in
organizing his employees, and with the possibility that an
incentive program then under consideration . would not
be effectuated , in violation of Section 8(a)(1) of the-Act.
12. Hussey testified that on April 2 Gatliff called her
into his office . After talking about some ordinary busi-
ness , he went on to say that -his wife had told him'that -
she had been observed being "secretive" with the
"guys." She asked if her job was in jeopardy and Gatliff
responded negatively. She then asked what guys he was
talking about , and Gatliff responded by naming Lee,
Like, and Tavorn , all technicians . Hussey claimed that
Gatliff stated , "I feel that you are in treason with them."
Then he went on to talk about . the Union , saying that if
it came in he would have - to cut corners' and since she
was not involved directly in sales and was not a techni-
cian, she would be considered excess "fat on the meat,"
and would be one of the first corner 's to be cut . At that,'
so Hussey claimed , she became upset and asked, "Do
you mean that my job is in jeopardy , that I ' will be
going?" She recalled him responding , "No, I don 't mean
that you will . You might ." She told him that it meant the
same thing to her . He then told her that there was going
to. be a union meeting and he asked her if she was going -"
to go . She responded that she was not too sure but prob-
ably would do so because she wanted to find out what -
the Union had to offer before she voted . Hussey claimed
at that Gatliff became very upset, telling her that she did
not have to go, that she really did not need to go to the
meeting , and asked her, "Why do you want to go to that
meeting?" She-told . him that she wanted to find out what
the Union had to offer. At that time Gatliff received a
telephone call so she left his office for a while . Later she,
was called back in,-and was told by Gatliff that, "Well, if
the Union can bring us out of this financial slump, then I
will be more than happy to have them come in."
Gatliff testified that his wife had told him that Hussey
was not staying at her desk as much as she, should, and
that she was having meetings with several of the techni-
cians. So, he admitted that he told her that she should
stay at her desk and stop whispering to the technicians. .
He claimed having no recollection of saying anything
else to her, and he denied that he told Hussey that her
job was in jeopardy, recalling that he said just the oppo-
site to her. He - denied that he told her that she was "in
treason," or that Lee , Like, or Tavorn were "in treason."
He denied that he told her at this meeting that he
wanted to go to a union meeting , or that he asked her
why she wanted to go . According to Gatliff, it was ata
subsequent meeting that . he told Hussey that one of the
problems with unions, and the situations created by
them , is that there are "people in treason ," and if people
were starting a union in the Respondent they would be
"in treason ." He defined the word "treason" as meaning
"to betray a leader" or "to break a trust."
I credit the testimony of Hussey over that of Gatliff. I
accordingly find that he violated Section 8 (a)(1) of the
Act by threatening and interrogating her.
13. Around April 5 Perkins , George Lorenzo, To-
kioka, and Matsuda 'were called to Gatliff's office,- with.
Perkins arriving when the meeting was already in
progress . Gatliff showed them some income tax forms'
evidencing a loss in the previous year , and went on to
GATLIFF BUSINESS PRODUCTS 551
speak of the mortgage he'had taken out on his home for
.$50,000, but which he would not put into the Company
if the Union won the election. He claimed that if the
Union won the election it would show that the people
were not united behind him, and would be tantamount a
figurative statement by them of "F you, Gary!" 15
According to Tokioka, Gatliff told him that he and
Lorenzo would be the "first to go" if the Union came in
because they had the least seniority. Neither Matsuda
nor Perkins recalled or testified to Gatliff making this
latter statement. Tokioka also recalled Gatliff saying that
he had mortgaged his home, and that he would not
invest that money in the Company in light of the losses
sustained over a period of months. Matsuda recalled only
that the subject of-mortgaging the house was brought up
by Gatliff at one meeting or another; but he could not tie
it down to which meeting it was mentioned in. All-
agreed that toward the end of the meeting, when Tom
Perkins had come in, Gatliff either asked whether there
was going to'be a union meeting that night or comment-
ed that there was and then asked Perkins if he was invit-
ed or if he could attend the meeting also. Perkins stated
that he would find out and let him know.
According to Gatliff, he opened this meeting by let-
ting the employees understand that losses had been oc-
curring and that a union was coming into the Company.
He said that there had been severe financial losses over
the last year with one of the companies and that • the
other company, had not done better than break even. He
explained to them that the Company was not doing well
at that time, that sales were down, and if the Union came
in it could be critical for them. He pointed out to them
that if the Union came in, it would not make money for
the Company and asked if there was any' way that hey`
knew of the Union could increase their business or their
profitability. He claimed that he told them that some-
times unions were actually helpful and could help allevi-
ate unfair practices and negotiate contracts or secure
better working conditions, but only if a company could
afford it He denied that he told employees that, if the
Union came in to represent them, he would no longer
put money into the Company or that it would mean that
there would definitely be a layoff, or that he had taken a
mortgage on his home: He admitted that he told them
that''voting for the Union was the same thing as saying
"F you, Gary"" Gatliff was not asked to, and did
not; specifically deny that he inquired about being invit-
ed to the union meeting, or whether. Perkins could get
him an invitation.16
As previously noted, I found both Tokioka and Mat-
suda to be credible witnesses. Perkins, though evidently
truthful, demonstrated difficulty in recalling or-recount-
ing some details. I found each of them to present superi-
or testimonial demeanor to that of Gatliff, who repeated-
15 This statement was attributed to Gatliff by both Tokioka and Mat-
suda Perkins' testimony is silent on the subject, but this seems reasonable
in light of the fact that he arrived late and could not have heard every-
thing that was said Lorenzo was not asked about this meeting in the
course of his testimony I infer from this that Lorenzo's testimony would
have been unfavorable to the General Counsel's position in the case
16 A union meeting was , in fact , held on the evening of April 6 at the
Chard ng Party's hall
ly was compelled to admit that' his memory of details
was rather vague. _
In light of the failure of corroboration of Tokioka's
testimony concerning the threat that he and Lorenzo
would be the first to be let go, and` taking into account
the inference which I draw that Lorenzo's testimony on
this point would have proven unfavorable to the General
Counsel had he had been asked about it, I have deter-
mined not to credit this testimony of Tokioka's. Howev-
er, I do' find and conclude that during Gatliff'ss"presenta-
tion," he did, as he did in other meetings, inject the issue
of the Respondent's alleged financial instability into the
discussion of whether or not employees should or should
not choose to be represented by a labor organization,
and that he imparted to employees that, if he were to
lose the election ' with the Union, he would no longer
exert efforts, such as taking out loans, 'to keep the Com-
pany going, inasmuch as he viewed the possibility of-the
Union winning as being tantamount to being by his em-
ployees, "F- you, Gary!" Further, I find that he in-
quired about the union meeting of- April 6, and thereby
put Perkins in the position of finding out if Gatliff could
attend.17
I conclude that by imparting to employees that he
would no longer take the same sort of steps to preserve
the Respondent as he had previously done, Gatliff inject-
ed a threat of economic reprisal into the campaign,
which I find violative of Section 8(a)(1).
14. On April 7, Gatliff called all technicians into a
meeting. There he told the assembled employees that he
wanted feedback concerning the meeting that they had
had at the Union's • hall the night before. He asked,
"What was it about?" According to Matsuda, there was
a long period of silence before Matsuda spoke up and
stated that, if the Union won the election, it could possi-
bly benefit the Company. Gatliff then mentioned that
they were doing well without the Union and inquired
rhetorically what the Union could do for them that the
Company could not do for them. Matsuda's testimony
was essentially, corroborated by Perkins and Lee, with
Lee adding that he recalled Gatliff saying that if the
Union came in he would rather work somewhere else,
and that, rather than giving in to the Union, he would
rather give up the Company. This late statement was es-
sentially corroborated by employee Hower, though
Hower also recollected, apparently unlike others at this
meeting, that Gatliff once again referred to his feeling
that a vote for the Union would be tantamount to a
"F you, Gary!" statement. According to Hower,
Gatliff told them he had a $50,000 escape fund, and that,
if the Company folded, ' he was not worried 'because he
could just start again His statement was essentially cor-
roborated by the testimony of employee Like, who testi-
fied that Gatliff told the employees he had money set
aside for 'himself, and that they would be the ones look-
ing for' jobs, rather than him, if there should be a layoff.
According to Like, Gatliff said, if the Union were to get
17 Perkins did, in fact, check,into the matter and received advice from
an official of the Union that Gatliff was not to attend , which information
was passed along to Gatliff
552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in, he (Gatliff) would not give in to the Union, but
would , instead , just look for work elsewhere.
According to Gatliff,, he started the meeting by men-
tioning to the assembled employees what was, in fact,
common knowledge that there had_ been a union meeting
the 'night previously and that he wanted to meet with
them to summarize what he' had been saying over the
past month or 3 weeks He went ' on to mention that
there were losses in the Company , and 'that , if anyone
knew any way that the Union could help to increase the
business , he would like to know about it . At that point,
he simply waited silently , as described - by the employees.
Then , again as described by the employees , Matsuda
spoke up and said that perhaps the Union could help the
Company get sales leads. Gatliff rejoined, "Paul, that's
fine , and we appreciate the leads, but frankly I would '
rather earn the business ." He went to ask again if there
was any way the employees knew that 'a union could
help the Company . Gatliff denied saying that if the em-
ployees voted no, they would get more bonuses and
better training , or that he asked the employees if-they
wanted to say anything about the meeting, or that he
asked whether they had attended the meeting of the
night before , or that he told employees that he had set'
aside money for his' own use in. the event a union came
in, or that there could be a layoff,- or that he would
rather work some place else and simply let the Company
go bankrupt . He also denied telling employees that he
would take the vote of the employees as a "F you;
Gary!" statement , and that he would stop putting his per-
sonal money into the Company.
While I recognize that it is impossible to completely
reconstruct exactly what was said by Gatliff at this meet-
ing, I believe - that it, is reasonable to conclude , • as I do,
that the testimony of the employees .was essentially cor-
rect , even though recollected and recounted with some-
what different words. Thus, employees Lee, Hower, and-.
Like all recall Gatliff injecting _ the issue of a layoff, an
escape fund, or closing the business , and just working
somewhere else. I credit this testimony and find that it
amounts to unlawful threats' of economic reprisals in the
event that they'should , exercise their right to vote for, or
otherwise support , the Union. -
15. A couple of hours after the morning :meeting, with
all employees , Gatliff • called Matsuda into his office.
There he inquired about the possibility of a union-bene-
fiting the Company . After Matsuda responded , Gatliff
asked for his help in getting the employees to vote
against the . Union . According to Matsuda , he also said
that if the Union won , the Company would be closed
down . Gatliff also showed Matsuda • some newspaper
clippings indicating that he was looking for another job,
saying , I don 't have to put .up with this, I can leave the
Company." . .
_Gatliff did not testify concerning this point.
I credit Matsuda 's testimony in any event ,, and find
that Gatliff violated Section 8(a)(1) of the Act by threat-
ening to exact economic reprisals if employees persisted
in their efforts to secure union representation.
16. Also following the meeting with technicians on the
morning of April 7,, Lee was called into Gatliffs office.
Gatliff asked Lee -for his backing and then proceeded,to
tell him that he was looking for another job Then he
asked Lee if he was involved with the Union , or if there
was anything he wanted to say , or if there was anything
on his mind . Lee replied negatively to everything . Final-
ly, Gatliff told Lee .that . rather than give in to the Union,'
he would simply work somewhere else.
Gatliff did not testify concerning this matter
I find that by interrogating Lee about whether or not -
he was involved with the Union and by imparting to him
the idea that Gatliff was looking for another job (with
the necessary implication being , that the Company would
simply close down if the Union came in ),. Gatliff violated
Section 8(a)(1) of the Act. '
17. Still on April 7 , after the meeting with all the tech-
nicians, Gatliff called Like into his office Gatliff asked,
for.Like's backing , saying that he wanted him to fully
support the Company Then he asked Like if he. was
ever involved with a union , and went on to invite him to
speak his mind if he had anything to say or had anything
on his mind.
Gatliff did not testify concerning this matter
I -credit Like and find that in interrogating Like con-
cerning , whether he had ever been involved with a
union, Gatliff violated Section 8 (a)(1) of the Act.- , -
18. Also on the same day, April 7 , Hussey ,-at 'Gatliff's
direction , began typing a letter which contained a list of
employees . According to her , this 'list showed the names
of employees who were to - be -retained. Naturally
enough; she became upset when she saw that her name
was not on the list So she went to Gatliff and asked for
clarification Gatliff responded that it had nothing to do
with,-the Union . She replied that she felt it did Gatliff
reiterated his denial . and asked her once more to type the
letter. Hussey told Gatliff that she would ' contest being
laid off. She testified that Gatliff responded by asking,
"Would you stay with a company that didn't want you?".
She replied affirmatively . Galtiff. then said that he would
not, that he would leave without any hassle, and that it -
would not bother him. Hussey said that she would type
the letter , but Gatliff took it away from her shortly
thereafter.
Gatliff testified that he recalled that he had, dust fin-
ished writing the names of employees earlier mentioned
by Steckler and Wheeler , and he gave the listing to
Hussey to type. Soon thereafter-she came to his office
and expressed surprise that her name was not on it. Gat-
liff acknowledged that her, name was not on it, but he
denied saying to her that she should not want to stay
with a company that did not want her. He acknowl-
edged that Hussey told him that she would not take this
lying down.
I credit-the essentially undenied testimony of Hussey
in this respect and find that , by his conduct , as well as
his rhetorical questions, Gatliff imparted to Hussey that
support for the Union was tantamount to being unwant-
ed by the Company and, therefore , placing one's eco-
nomic well-being in jeopardy.
C.- Further Factual Background and Findings
Around April 6 or 7 Matsuda was called to Steckler's
office by Gatliff "Once there he was handed a list of
GATLIFF BUSINESS PRODUCTS 553
names of employees, and asked to tell Gatliff about the
abilities of each of the technicians, and to specify which
machines could be serviced by each technician. Accord-.
ing to Matsuda no mention was made of a pending layoff
and nothing was said about whether employees were to
be retained or laid off. Instead, he was simply asked to
assess the technical capability of various employees. He
did so, naming Ernie Lee,. Eldred Like, and Carl Tavorn
as employees capable of servicing certain of the machin-
ery known as MITA copiers. He was there only a short
while and, on completion of'his assessment , he left with-
out further discussion.
Gatliff, on the.other hand, testified that on April 6 he
spoke to both Matsuda and Steckler, in Steckler's office.
He claimed that he told them to consider- how they
would run the Company, and specifically the portion of
the Respondent's operations for which they had responsi-
bility, the "service side," if they had to presuppose they
could do so' with only five employees. He claimed that
he went further and told them to select which five
people they ' would choose.
Steckler admitted that she remembered this meeting of
April 6. But, after she stated that only Matsuda and Gat-
liff spoke during this meeting, the Respondent's counsel
asked no further questions concerning it, e.g., what was
said by Gatliff and what was said by Matsuda. I infer
therefrom that it was anticipated that her answer would
have failed to support Gatliffs version of this meeting
Accordingly, I find and conclude that Matsuda's testi-
mony is to be credited over that of Gatliff. Thus, I also
find that Matsuda was not asked anything about a list of
five employees or in any, way apprised of a possible,
layoff. Instead, he was simply asked to share his knowl-
edge of the technical capabilities of certain of the techni-
cians with whom he worked.
On April 7 Gatliff met with Steckler and Curt Wheel-
er in the afternoon. He testified that he told them, "I
would like for you to look at how you could get along if
you had a skeleton staff and Curt, imagine you have got
two people and you have to do your job. And Linda,
imagine that you have five. Now, who would you pick,
and Linda, your people have to have cards " Gatliff's
testimony in this regard is essentially corroborated by
Wheeler and Steckler. As described by them, they were
asked to make their recommendations as though the
entire matter were truly hypothetical and to imagine that
they were "starting over" in an imaginary ideal situation:
Wheeler immediately gave the names of two employ-
ees from the office named Vi and Burl. Steckler thoughi
about the matter somewhat longer, but nonetheless came
up with her own list. It consisted of the five names:
Dennis Uyeda, Charles Hearn, Dean Yokoyama, George
Lorenzo, ,and Mike Statia. According to Gatliff, he asked
Steckler no questions, and she made no explanations of
her choices, _ except that he heard her muttering aloud to
the effect that Statia had been to school for training in
servicing a particular-type of machine, that Hearn could
handle another kind of machine, and that Uyeda was a
technician, as well as the fact that she liked Lorenzo and
mentioned Yokoyama. -Far from inquiring about the basis
of the recommendations he had received, or advising
either Wheeler or Steckler of his intentions -about what
he would do with their recommendations, Gatliff
claimed that he simply wrote down the names mentioned
by Steckler and Wheeler on a piece of paper, and later
gave it to Priscilla Hussey to be typed 18
In fact, Gary Gatliff claimed that he had made no de-'
cision regarding a layoff, at the time he asked for this list
to be made up by Wheeler and Steckler, and that it was
all very hypothetical to that point.
However, according to Gatliff, during that night, be-
tween April 7 and 8, he came to a decision. Around 3 or
4 a.m., he decided to lay off employees. The factor un-
derlying his decision were that "the whole thing of our
financial condition was coming into focus for me." He
described the negative information which Wheeler had
been giving to him and concluded that he had cause for
both optimism and pessimism. He considered the fact
that March had been a reasonably good month for the
Respondent. He considered the amount of debt, the diffi-
culties the Respondent was having with receiving ship-
ments from MITA, the legal fees which would be due to
a lawsuit that had been settled, and the fact that the Re-
spondent was overdrawn with the bank around the first
of the month. His conclusion from all of this was that
the Respondent was going broke and that " we were
going awfully fast." He decided to lay off the employees
in the delivery department (Kaawa and Garcia), and to
take the automobiles (which would be made available by
laying off technicians) and put those `over into the sales
department. He also decided to lay,off two of the three
people in the maintenance department, including
Bounthan Sengdara. And, in doing all this, he evidently
decided to follow the "hypotheticals" presented by
Wheeler and Steckler.
Shortly after work commenced on April 8 Gatliff
called a meeting of technicians and other employees
from the "service side" of the Respondent's operation.
He told the employees that for the first time in 10 years
he was going to have to have a layoff, and that if busi-
ness improved they would be "rehired." At this point
Steckler handed layoff papers to the following listed em-
ployees: John Burkman; Robert Garcia; Gregory Hower;
Priscilla Hussey; Nathan Kaawa; Ernie Lee; Eldred
Like; Thomas Perkins; Leroy Smith; Carl Tavorn; and
Stanford Tokioka.
For a period of a day or two thereafter the employees
who -had been laid off picketed the Respondent's prem-
ises . According, to Perkins, they did so because they be-
lieved that they had been laid off due to their support for
the, Union.
According to Matsuda, Gatliff telephoned him at his
home around 11 p.m. on April 12. Gatliff explained that
he had heard that there had been a union meeting and
that Matsuda had attended. Gatliff asked him to use
whatever influence he had to get other technicians to
vote no. Gatliff explained to Matsuda that Matsuda could
do this, but that Gatliff was not permitted to do so. Gat-
liff asked Matsuda if any voting had occurred at the
Union's meeting .- Matsuda responded that the employees
1s Presumably this is the paper that led to the confrontation between
Hussey and Gatllff when Hussey was upset and asked for assurances that
her job was not in jeopardy, all as set forth in an earlier point herein
.554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had' simply voted on whether or not to continue picket-
ing.
The next morning the National Labor Relations Board
conducted the election among the Respondent's employ-
ees Prefatory to the election, Gatliff conducted a meet-
ing of the remaining technicians Shortly thereafter, Gat-
liff went into the dispatch office, and according to Geor-
gia Chai, he remarked, "You would think these guys
would have more loyalty. Have they forgotten who pays
them their paychecks?" Continuing, according to Chai,
he said that no union was ever 'going to tell him what he
could or could not do, and' that unions were like para-
sites, sucking one dry As she recalled it, Gatliff closed
by telling her that she should go out and tell the employ-
ees to support the Company or there would be hell to
pay, ' and that he was going to exercise his freedom of
speech and his right as an employer, doing what he
thought was best.
The results of the election held on April 13 showed
that of approximately 37 eligible voters, 20 cast votes in
favor of the Union and 11 cast votes against the Union,
with 5 challenged ballots. not affecting the outcome of
the election.
Later in the day, Gatliff called Chai into his office and
told her that she was fired. He explained to her that she
was fired for disloyalty. Soon thereafter, Gatliff sum-
moned Matsuda to his office and fired him, telling him
he had been disloyal. Later that evening, Gatliff called
Sengdara on the telephone and fired him. 'All three had
voted in the election.19
Pursuant to a discussion among the laid-off employees
at the Union's hall, picketing was resumed at the Re-.
spondent's premises on April 30. The pickets used signs
which read: "GATLIFF AND RBC SERVICE
UNFAIR." This picketing lasted for about 2 weeks.
On May 3, -while the picketing was going on, George
Lorenzo first observed it as he came to work.. He was
accompanied by Dean- •Yokoyama. Together they went
to a public telephone and called the Respondent's office
Lorenzo spoke with Jane Gatliff, telling her that there
was a picket line outside. Jane Gatliff instructed them to
go to the "service side" of the Respondent's premises
and meet Steckler.
Lorenzo and Yokoyama, joined by Dennis Uyeda, im-
mediately.went there and met Steckler. Steckler told
them that if they honored the picket line they would be
permanently replaced Lorenzo asked for clarification
and Steckler responded, "Exact what I just said " None-
theless, Lorenzo advised Steckler that, since he was a
union member, he was going to honor the picket line. In
fact, all three employees (Yokoyama and Uyeda were
with Lorenzo) honored the picket line and refused to
work.
A 'short - time thereafter, while these three employees
were standing by their cards outside the Respondent's
premises, Gatliff came up to them. He told them, going
further than Steckler, that if they did not work they
were out of a job.
19 No objections were filed to the election and the Union was certified
on April 21
The record contains references to some sort of accom-
modation subsequently being reached between Gatliff
and the Union, affording at least a few of the employees
opportunity to return to work. However, the record is
incomplete and inadequate to form the basis of any find-
ings in this connection.
D. Supervisory Status of Georgia Chat and Paul
Matsuda
In its brief the Respondent concedes that Matsuda and
Chai were discharged for failing to follow Gatliff's in-
structions regarding maintenance of "non-union stance."
I take this to mean that they were discharged because
they each engaged in union activities, and perhaps sup-
ported the Union, each having gone so far as to vote in
the election. These concessions and admissions, as well
as my interpretation of them, seem confirmed by the tes-
timony of Gatliff.
Nevertheless, the Respondent contends that. the dis-
charges of Matsuda and Chai were privileged. In each
instance, it pins its reliance on the contention that each
was a supervisor within the meaning of Section 2(11) of
the Act.20
The status of each shall be, considered separately:
1. Georgia Chat .
The Respondent asserts that Chai was the immediate
and direct supervisor of the Respondent's technicians,
bearing responsibility for keeping track of their where-
abouts, and making sure that they did not linger too long
around the office before beginning their morning's calls.
Additionally, so the Respondent claims, Chat kept de-
tailed reports of the technicians' work progress, noting
any discrepancies from their timesheets. Finally, it is
claimed that Chai, in effect, disciplined individual techni-
cians with respect to problems that arose in their work
and, in one instance, even prepared a report about a
Kauai technician, Lupe, and submitted it directly to
Gary Gatliff for further handling.
Chai, became the Respondent's dispatcher in October
1981, having previously worked as a secretary-reception-
ist to Gary Gatliff. As dispatcher she was responsible for
taking calls for service from the Respondent's customers.
In turn, when the service technicians called in from the
field, she notified them that a customer had called and
that a service call was necessary. In order to determine
which technician to dispatch she availed herself of a nu-
merical code assigned to each customer by the Respond-
ent, and which, on further reference to a computer, iden-
tified which service technician was properly assigned to
handle the account. Upon the technician's completion of
the service call, he was responsible for writing up a serv-
ice "ticket", such tickets were ultimately given to Chai,
20 Sec 2(11) of the Act reads as follows .
The term "supervisor" means any individual having authority, in
the interest of the employer, to hire, transfer, suspend, lay off, recall,
promote, discharge, assign, reward, or discipline other employees, or
responsibly to direct them, or to adjust their grievances, or effective-
ly to recommend such action , if in connection with the foregoing the
exercise of such authority is not of a merely routine or clerical
nature, but requires the use of independent judgment
GATLIFF BUSINESS PRODUCTS
who maintained a•record of the 'service-calls. Additional-
ly; in order that the Respondent might know where its-
technicians were at any given time, Chai recorded all 'as-
signments in a logbook. Finally, whenever one of the
Respondent's salesmen telephoned and notified her of the
time and-place of the Respondent to make a delivery,
Chai received the message and passed it on -to the deli-
verymen so that they could schedule their work.
Chai worked in a dispatch office which served as the
base of operations of the technicians and the delivery-
men.- She earned a $100-per-month pay raise on April 1,
bringing her salary to $900 per month, at which time the
technicians were earning anywhere -from $800 per month
to $1500 per month. The record shows no other benefits
received by Chai that employees conceded to be rank
and file did not also received.
It is not 'claimed that Chai either hired or fired em-
ployees, or participated in the hiring 'process (or even
interviewing anyone for employment). Further, it seems
that she did not evaluate employees' work on any regu-
lar basis, if at all. -Nor is there evidence' that she author=
ized overtime, transferred employees, . assigned work
other than that which is of a routine `nature, or author-
ized time off or vacation time.
While it is true that Chai was given the title of "Direc-
tor of Customer Service," apparently around the time
that she was made the dispatcher, I find myself willing
to give very little weight to such a title. For the Re-
spondent appears to` have assigned titles to its personnel
with little regard for 'whether or not. they were or were -
not actually supervisors. For example, Tokioka was des-
ignated as the, "Director of Material"; Kaawa was desig-
nated as the "Director of Transportation";-and Matsuda
was designated as the Respondent's "Director of Techni-
cal Services." '
More troubling, however, was the Respondent's claim
(essentially admitted by Chai's testimony) that Chai re-
ported her complaints concerning the job performance of
a technician named Hearn to Steckler ' According- to
Chai, she noted that Hearn was failing to properly fill
out his tickets or to account for his time. Additionally,
she complained to Steckler that Hearn swore at her
when she attempted to talk to him. According to Chat's
credited testimony, on hearing of Chai's complaints,
Steckler directed Chai to memoralize her complaints in
writing. In any event, aside from noting the factual basis
for her complaints against Hearn , Chai made no recom-
mendations one way or another, about this job tenure. 21
Chai also admitted that on a couple of occasions, at
the specific direction of Gary Gatliff, she called a techni- -
cian who worked on the island of Kauai, named Guada-
lupe "Lupe" Sabala. Gatliff asked her to check why
Sabala was not getting t6' a particular service call. Ac-
cording to Chai, she did this on one or two.occasions,
memoralized her findings, and forwarded her writing to
21 At the conclusion of'this incident , Steckler assured Chat that she
would put a copy-of Chai's report in Hearn's personnel file The record
is silent as to whether any disciplinary action was ever taken against
Hearn as a result ,Thus, this does not appear to have been a display of
effective supervisorial authority on the part of Chai. -
555
Steckler .22. Finally, Chai also admitted that, pursuant to
direction from Steckler and Gatliff, she did, indeed,
hurry along the technicians who lingered in the dispatch-
er's area in the mornings. '
It is well established that the powers of supervisors
enumerated in Section 2(11) of the Act are to be read
disjunctively, and if 'an employee possesses any one of
the supervisory criteria set forth in Section 2(11) of the
Act, he will be found' to be a supervisor, as no "balanc-
ing test" is to be used in determining supervisory status.
Gurabo Lace Mills, 249 NLRB 658 (1980). Further, if an
employee had been delegated real authority to exercise
any one of the, statutory powers requiring use of inde-
pendent judgment, as opposed to being merely routine or
clerical, regardless of the frequency of the exercise of
such a power, that employee, whatever his job title, is to
be treated as a supervisor under the Act. NLRB v. St.
Mary's Home, 690 F.2d 1062 (4th Cir. 1982). And in an
incident where a supervisor has been discharged, it is the
duties 'of that alleged supervisor at the time of the dis-
charge which -control on the question of whether the
person was or was not, in fact, - a supervisor within the
meaning of the Act. - Tra-Mar Communications; 265
NLRB 664 (1982).-The burden of proving the superviso-
ry status of an employee rests on-the party alleging that
such status exists. RAHCO, Inc., 265 NLRB 235 (1982);'
Tucson Gas & Electric Co., 241 NLRB 181 (1979); and
cases cited therein.
It' is recognized that, before the party attempting to
prove supervisory status can be said to have met his
burden is also required that a showing be made that in
performing any of the functions enumerated in Section
2(11) of that Act, the alleged supervisor exercised inde-
pendent judgment, as opposed to behaving in a routine
or merely clerical fashion. Walla Walla Union-Bulletin v.
NLRB, '31 F.2d 609, 613 (9th Cir. 1980); NLRB v.
Harmon Industries, 565 F.2d 1047, 1049 (8th Cir. 1977);
NLRB v. -Security Guard Service, 348 F.2d 143, 147 (5th
Cir. 1967).
Here it seems more likely that the Respondent is con-
tending that Chat possessed the authority to transfer,
assign , discipline, or responsibly to direct other employ-
ees, or effectively to recommend such action.
I regard the evidence of Chai's report concerning
Hearn's or her various oral complaints to Steckler con-
cerning Hearn 's, as well as Chai's inquiry into the where-
abouts of the technician on the island of Kauai as being
insufficient to demonstrate 'the possession of any inde-
pendent authority on the part of Chat to discipline, dis-
charge, transfer, or assign employees, or to effectively
recommend such action. The record makes no showing
that any discipline was ever-carried out-on these employ-
ees as ,a result of her complaints or reports. And with
regard to the employee on the island of Kauai, the
record, establishes, at most, that Chat simply followed ex-
22 As with the incident involving Hearn, the record does not indicate
that any action was ever taken against this individual based on any infor-
mation given or any recommendation made by Chai Thus, again, there
appears to be no warrant for utilizing this incident as a basis for determi-
nation that Chat effectively recommended any disciplinary action
556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plicit directions of Gary Gatliff to check into.the em-
ployee's activities and report thereon.
Considering the record as a whole, I conclude that
whatever direction or assignment features were incorpo-
rated within Chai's job description were of a purely rou-
tine and clerical nature. On getting a call from a custom-
er, she looked into a reference established by the Re-
spondent' and determined the name of the technician to
be assigned to the work. She then notified that techni-
cian. And when a salesman notified tier of a delivery, she
passed that information on to the deliverymen. Her ac-
tions in getting 'the technicians to hurry up as they left
the premises in the morning were taken at the express di-
rection of Steckler. Further, Steckler's testimony admit-
ted that the Chai's reports were merely reports of the
statistics concerning the operations of the technicians,
and that it was Steckler, herself, who inferred therefrom
certain conclusions regarding the quality of work per-
formed by the technicians.
In view of these circumstances, I am persuaded that
when Chai directed the work of the technicians, telling
them when and where to go, or to hurry up in the morn-
ing, she was acting in a routine and clerical fashion, not
exercising the type of independent judgment contemplat-
ed by Section 2(11) of the Act. Nor, when she checked
into their activities, or reported their activities, was she
exercising the type of independent judgment,contemplat=
ed by, Section 2(11) of the Act. Nor, when she checked
into their activities, or reported their activities, was she
exercising the type of independent judgment required to
establish that she functioned as a supervisor.
Based on the foregoing,. I find that the Respondent has
failed to establish that Chai possessed any of 'thie indicia
of supervisory authority enumerated in Section 2(11) of
the Act. Accordingly, she was an employee of the Re-
spondent, entitled to the Act's protection.
2. Paul Matsuda
The Respondent asserts that Matsuda possessed and
utilized a number of the supervisory indicia set out in
Section 2(11) of the Act. It claims that Matsuda routine-
ly participated in interviewing and selecting new em-
ployees. Indeed, it is claimed.that Matsuda once selected
and hired an employee on'his own, as well as on another
occasion independently reaching a decision to interview
prospective employees rather than bothering to put an ad
in the paper. It is claimed that Matsuda not only trained
new employees but also instructed other technicians,
issued oral reprimands and both oral and written warn-
ings, and participated in-such management activities as
helping to establish a new incentive program.
The General Counsel responds that Matsuda was not a
supervisor, and was simply a senior technician whose ex-
pertise was utilized by the Respondent from time to time.
It is argued that, while Matsuda was higher paid than
any other technicians (i.e., $1500 per month), his pay was
merely commensurate with his level of skill -and tenure
with the Respondent. And it is true that Matsuda was
not cloaked by the Respondent with such indicia of au-
thority as an office, or even a telephone line. He re-
ceived the same benefits as other employees and was
paid in the same fashion. It seemed conceded that he was
thought to be more skillful and possessed of greater tech-
nical knowledge than other employees, though not nec-
essarily in all areas.23
Contrary to the Respondent's evidence and assertion,-
Matsuda testified that he never hired, fired, or disci-.
plined employees; that he neither could nor did authorize'
or grant overtime work, or transfer employees from one-
department to another; that he had no responsibility for
the attendance or promotion possibilities of employees,
and that he resolved and handled no grievances. -
Matsuda's title, "Director of Technical Services," was
bestowed upon him some 8 or :9 months before his dis-
charge. Of some significance, however, is the fact that, he
continued to be paid in the same fashion and in the same
amount after his title had been given to him. Thus, given
the Respondent's penchant for giving titles to its employ-
ees, including some to persons who not even claimed to
be supervisors, I do not find the fact, that Matsuda had a
title of great import in the decision of whether or not he
was, in fact a supervisor.
Matsuda acknowledged that he, together with one Lee
Evans , trained new _ employees . Evans normally trained
new technicians for a period of a week to a week and
half utilizing a manual . At that point the employee, typi-
cally, was handed over to Matsuda for 3 or 4-days of
hands-on training with the machinery to be serviced. -
Matsuda acknowledged that from time to time deci-
sions were made to have an employee receive further
training . According to Matsuda, this resulted from
Steckler's request for his opinion regarding the technical
competency of various employees.24
So far as directing or assigning work was concerned,
Matsuda would have it that he was not accorded the
power to use individual judgment in making assignments.
Instead, ' like Chai, all he did was refer to the work order
which was provided to him, and then, depending upon
the geographical territory where the service call was
needed, route the assignment on to the particular techni-
cian already designated by the Respondent for that par-
ticular geographical area.
Nor does it appear that the Respondent is seriously
contending that Matsuda was routinely occupied as a
manager, making decisions or effectively recommending
them on a daily or routine basis. No challenge has been
made to Matsuda's testimony that he regularly spent ap-'
proximately 80 percent of his- time repairing machinery,
and approximately' 20 percent of his time was used in as-
23 For example , problems with reference to the MITA machines were
not within his area of expertise , and were referred to another technician,
Lee
24 This, in turn , apparently sprang from Matsuda's expertise regarding
the degree of difficulty or•skill required for the operation of various types
of technical equipment Matsuda admitted that he was aware that
Steckler was involved in the spring of 1982 in creating an incentive or
bonus plan for employees, for Steckler penodically_called him to her
office as his work progressed and asked for his opinion regarding the
"values" she assigned to certain operations and certain equipment as her
plan was being formulated The sense of Matsuda's testimony on this
point is, however, that he was not , himself, involved in the creation of.
the plan and was merely used as a source of information by the Respond-
ent While the Respondent would most certainly draw a different conclu-
sion , my sense of the overall evidence on this point is on accord with
Matsuda's.
GATLIFF BUSINESS PRODUCTS
x' Y3
sisting Tokioka in the parts department or helping the
deliverymen
The Respondent does, however, point-to evidence that
Matsuda regularly participated in the hiring process, di-
rected activities of the technicians, and had occasion to
discipline several employees.
Matsuda' admitted his participation in the routine of
interviewing employees. Nonetheless, his testimony was
to the effect that he did so merely because he was a
competent technician, while Steckler had no knowledge
of the technical aspects of the work. He merely satisfied
himself about whether or not the applicant did or did not
have a background in the electronics work. If so, then
Matsuda would write "good" or "okay" on the applica-
tion and pass both it and the applicant along to Steckler
and/or Gatliff.
Matsuda also acknowledged that on one occasion, real-
izing that the Respondent was short of technicians and
also knowing that there were already applications on file,
he took-it upon himself to go and review the applications
and then have the applicant come in. Apparently, once
the applicant was, brought in, the procedure reverted to
the normal practices.
Matsuda acknowledged that on three occasions he was
instructed to talk to technicians whose work ' had been
the subject of a complaint and to find out their side of
the story. Matsuda insisted that all he did was gather in-
formation and pass it along In the case of the complaint
regarding Like and Lee having the odor of alcohol do
their breath when making a service call and having spit
in a customer's pool, it appears that he did nothing more.
Steckler's memo regarding the matter merely indicated
that she intended to have Matsuda ask Lee and Like for
their version, and Matsuda's report makes no recommen-
dation, but merely reports facts. I draw much the same
conclusion'regarding the incident in which Hearn was
asked by Matsuda, at Steckler's specific direction,'to ac-
count for his time after the question had been raised by
the dispatcher, Chai.
In order to understand the part played by Matsuda in
hiring new technicians, a brief summary of the entire
processing is in order. Initially, applicants filled ,out a
general application form. Then the applicants were ad-
ministered a personality test by the secretary-reception-
ist. If the applicant sought a job as a technician , Steckler
would' interview them and, due to her lack of technical
knowledge, Steckler would arrange for a further inter-
view on that particular subject to be conducted by either
Matsuda or Hearn, who, like Matsuda, had long tenure
as a technician with the Respondent. The procedure then
followed by Matsuda or Hearn, who is not claimed to be
a supervisor, has already been noted. Then, following all
of this the applicant was interviewd by Gary Gatliff,
who reserved the determination of whether to hire indi-
viduals to himself.25
25 I make this finding notwithstanding my awareness that Matsuda ad-
mitted that on one occasion , at' the express direction of Steckler, and
upon the specific request for a recommendation from Gatliff, he recom-
mended that one of three applicants be hired as a technician in the city of
Kona, on the island of Hawaii
557
Based on the foregoing and keeping in mind the au-
thorities mentioned above in the discussion of Chat's
status,- I conclude and find that the Respondent has failed
in its burden of persuading me that Matsuda possessed
any of the indicia 'of supervisory authority enumerated in
Section 2(11) of the Act. In so concluding I have consid-
ered that Matsuda on several occasions admittedly en-
gaged in activity which, in isolation, tends to persuade
that he was a* supervisor (i.e., he was' involved in the
hiring process to some degree and on one occasion actu-
ally effectively, recommended hiring, he made inquiry to
determine the source of problems encountered by techni-
cians, he relayed admonitions', 26 he handed work assign-
ment slips to employees, he trained employees, and Re-
spondent spoke to him from time to time drawing upon
his expertise) Nevertheless, the evidence as a whole
seems insufficient to me to support a finding of supervi-
sory status within the meaning of Section 2(11) of the
Act. Under the circumstances here, to find Matsuda to
be a supervisor would seem contrary to the policy of the
Board and the courts, which I understand. to be that "it
is important for the Board not to construe supervisory
status too broadly, for a worker who is deemed a super-
visor loses his organizational rights." McDonald Douglas
Corp. v. NLRB, 655 F.2d 932 (9th Cii-. 1981) Accord:
Westinghouse Electric Corp. v. NLRB, 424 F.2d 1151,
1158 (7th Cir. 1970).
Thus, in this case 1--find that authorities cited by the
General Counsel on this point persuasive, despite my
ready acknowledgment that Matsuda's case is substantial-
ly closer than that of Chai' s. It is my finding, however,
that, to the extent that Matsuda has engaged in activities
which might lead to a finding that he.was possessed of
supervisory authority, this was more a reflection of his
greater seniority and experience than any true indicator
of supervisory responsibility Starr Kabl, Inc, 239 NLRB
1251 (1979), Comax Telecom Corp., 219 NLRB 688
(1975).
E. The Discharges of Choi and Matsuda Violated
Section 8(a)(3)
In light of the admission by Respondent that Chat and
Matsuda were each discharged because of their disloyal-
ty, as evidenced by their participation in union activities
and voting in the representation election, it follows that
my findings that they are not statutory supervisors
within the meaning of Section 2(11) of the Act mandates
the further conclusion that their discharges were unlaw-
ful, and violative of Section 8(a)(3) and (1) of the Act. I
so find and conclude.
F. The Layoffs of April 8
The test to be applied in cases such as this was ex-
plained by the Board in Wright Line, 251 NLRB 1083
(1980), enfd . 662 F.2d 899 ( 1st Cir. 1981), cert . denied
455 U . S. 989 (1982), where it held that, where it is
shown that an employee 's protected activities was a mo-
26 As in the instance where Steckler told him to stop employees from
smoking marijuana, following her observation of several employees doing
so at an office party
558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tivating factor in the employer's decision to discharge,
layoff, or discipline the employee, a violation of the, Act
is established, unless the employer demonstrates, as an af-
firmative defense, that it would have taken the same
action for legitimate reasons even absent the employee's
protected activities. The Supreme Court unanimously ap-
proved this test in NLRB v. Transportation Management
Corp, 462 U.S. 393 (1983).
Of course, if'it is also shown that the employer's al-
leged justification is no more than sham or pretext, the
analysis of the employer's motivation is logically at an
end. At the Board explained in Wright Line, supra, once
it is proved that the reason advanced by the employer
either did not exist, or was not in fact relied on, there is
no remaining predicate -for any determination that the
adverse action -would have been taken' even in the ab-
sence of union activity.27
Thus, -hider the authorities mentioned above, my ini-
tial inquiry has been whether or not the General Counsel
has established by preponderance of the evidence that
the Respondent laid off employees on April 8 for an un-
lawful reason. In this determination I have considered
both the General Counsel's evidence of unlawful motive
and all the Respondent's evidence that would tend to
rebut the existence of a unlawful motive, including evi-
dence of any' lawful motive.
If the evidence had been in "equipoise" on the issue of
unlawful motive, the General Counsel would be found
not to have met his burden of proof and the Respondent
must prevail. If the General Counsel succeeded in show-
ing by preponderance of the evidence that the unlawful
reason was • a motivating factor in the Respondent's
action, and also that the Respondent's asserted lawful
motive is it pretext, then the General Counsel prevails,
since he has shown that there was 'only an unlawful
motive for the dismissals.
However, if the General Counsel succeeds in showing
by preponderance of the evidence that the unlawful
reason was a motivating factor in the Respondent's
action, but is unable to disprove the existence also of the
lawful motivation, then the inquiry turns to the question
of whether or not the Respondent may avoid the finding
of a violation by establishing as an affirmative defense
that it would have dismissed the employees-for a legiti-
mate reason even in the absence of the employees"pro-
tected activity. The inquiry at this stage is designed not
to identify the "real motive" (which has been established
in the initial stage of proof that there were at least two
"real motives"), but to answer the question of what the
Respondent, would have done in a hypothetical situation.
In examining the General Counsel's evidence, I bear in
mind . the seemingly obvious principle that mass dis-
charges or layoffs of union adherents are particularly dis-
tructive of the - rights ,of employes guaranteed to them in
Section 7 of the Act, not only because they serve to sep-
arate the proponents of unionization from contact wit
their coworkers, but also because they clearly demon-
strate to those who remain that the employer can and
will control who works for it based on antiunion consid-
erations. See Majestic Molded Products v. NLRB, 330
F.2d 603, 606 (2d Cir. 1964).
Here, the Respondent's president Gatliff'cannot be said
to have been-at great pains to hide his hostility towards
the Union's organizational effort, he was 'candid in his
admissions that he sought to exercise his rights under
Section 8(c) of the Act to convince employees that selec-
tion of the Union as their exclusive collective- bargaining
representative would be a poor decision on their part,
taking into account the financial circumstances then con-
fronting the Respondent.
Of course, Gatliff claims that he went no further than
is permissible, and the General Counsel contends to the
contrary.
As shown above, I believe and have found that' there
were numerous instances in the period from -the incep-
tion of the Union's organizational campaign up to, and
even following, the election herein where Gatliff crossed
the line into forbidden territory violating Section 8(a)(1)
of the Act by means of numerous instances-of interroga-
tion, threats of loss of economic benefits, hints that selec-
tion of the Union would result in layoffs of-closure by
the Respondent, imparting to employees that their activi-
ties were being kept under surveillance, and the like.28
Gatliff admittedly continued a campaign of-persuasion
among the employees throughout the latter part of
March and early April. Sometimes he met with employ-
ees individually, but more frequently he met with groups
of three or four at a time. While he imparted his opinion
that- the Respondent was in dire economic straits to em-
ployees, -he alternatively held out to them the prospect
that they might benefit from a bonus or incentive system
then being worked up by Steckler. And while he.repeat-
edly interrogated employees, he gave evidence of his
fear that conflict between him and the employees was in
the cards by asking employees to bear witness to the fact
that he had not done what he had, in fact, just done.
Gatliff's concern about the union activities of his em-
ployees was demonstrated further by his attempt to
secure an invitation to attend a union meeting which oc-
curred on the night of April 6, • as well as by his conven-
ing a meeting 'of all the service technicians on the fol-
lowing , morning and asking them for information about
what went on in that meeting. His inquiry lasted for
some time, and was sprinkled with threats that the Com-
pany might close down if the Union won the election.
That very night, sleepless,29 it suddenly came to him
,that the solution to his problems was to effect- a mass
28 An event that occurred subsequent to the layoffs serves to illustrate
Gatliffs, and perforce the Respondent's, animus toward employees who
were receptive to unionization Vice President Steckler testified that
sometime between May 1982 and February 1983 Gatliff instructed her to
"screen"-,lob applicants at the ' Respondent, and to make sure that none
-were hired who were involved in any kind of' union activities As she
explained , " It meant that he [Gatliff] didn 't want to have anyone there
that was in the Union
While I note Steckler's denial that this instruction was followed in
more than one m"stance, the attitude it illustrates on the part of Gathff
seems quite consistent with the commission of the numerous instances of
violations of Sec 8(a)(1) of the Act, noted above
27 See also Limestoxe Apparel Corp, 255 NLRB,722 ( 1981), enfd mem
705 F 2d 799 (6th Cir 1982) is well-being , about which more will be said later
29 Due to concern, so Gatliff testified, about the Respondent's econom-
GATLIFF BUSINESS PRODUCTS
layoff, thereby effectuating what had been presented to
other managerial employees of the Respondent as a mere
hypothetical situation, only days previously.
In circumstances where the chief executive officer of a
corporation requires numerous employees to attend re-
peated meetings in his office; where he questions them
regarding union activities of themselves and others; and
by turns, implies that benefits will flow their way-if they
reject unionism; and threatens economic reprisal, such as
layoff or closure, should they select union representation;
and, for good measure, tells employees that their union
activities will prove futile,; and that their activities are
being kept under surveillance, it seems reasonable to con-
clude, not only that the interrogations were unlawful,
but that all the circumstances lead to a finding that the
Respondent harbored animus toward its employees'
union activities.30
The timing of Gatliffs decision to lay off a number of
employees seems contrived. A union meeting was con-
ducted on the night of April 6. Gatliff had already ex-
,pressed a desire to find out what events had transpired at
that meeting in prior conversations with employees,
where he sought an invitation The following day he
questioned a number of employees in a mass meeting,
and laced his comments with predictions of dire conse-
quences should the employees select the Union. Then,
and only then, did he feel impelled to act on the "hypo-
thetical" plan he had asked Wheeler and Steckler to
draw up for him several days prior thereto as a result of
Wheeler's warnings about the Respondent's financial
problems.
It also seems contrived to me when Gatliff repeatedly
attempted to portray himself while testifying as a man
who, on the one hand, was so upset by the very thought
of laying off employees that he became teary-eyed on the
witness stand when recounting his decision, but on the
other hand was at pains to portray the layoff as some-
thing over which he had little or nothing to do with,
almost a quirk of fate. Again and" again throughout his
testimony, he- corrected counsel questioning him, or
equivocated about the layoffs. Indeed, at one point, he
claimed that it was not he who had decided to have a
layoff, and that all he had done was simply decide to
keep certain employees. Evidently, in his mind, the fact
that all others necessarily would be laid off had little
connection. He claimed, instead, to have left the decision
regarding the layoffs up to Wheeler and Steckler.
And since Wheeler appears to have been concerned
only with the administrative staff, and to have encoun-
tered no difficulty in naming two people, whom he
wished to keep, it seems that Gatliff left the decision up
to Steckler as to who would and who would not be af-
fected by a layoff in the "service side" of the business.
Indeed, Gatliff had a curious penchant for distancing
himself from a number of decisions which would seem
reasonable for a chief executive officer to involve himself
with, or at least to know of. Gatliff would have it that
he so distanced himself from the layoff procedure that he
30 Rossmore House, 269 NLRB 1176 ( 1984), does not apply to instances
where the surrounding circumstances 'of interrogation are themselves in-
dicative of coercion and interference, as I have found here
559
did not know how many employees there were before
the layoff or how many remained afterwards, aside from
his instructions to Steckler to "hypothetically" proceed
with a staff of five. Nor did he analyze Steckler's deci-
sion , or express any concern with the decision made by
Steckler as to whom was to be put upon her hypotheti-
cal list of the five to be retained.
If this were a larger corporation, perhaps it would be
reasonable to believe that a chief executive officer would
so distance himself, or have only indirect knowledge of
the details of the events. But this is clearly a small corpo-
ration, given the size of the voting unit And throughout
the trial, both Steckler and Gatliff, as with the other wit-
ness, referred to one another on a first name basis only I
infer from this that much of Gatliffs attempt to put dis-
tance between himself and the decisions concerning who
would be laid off was a device based on sham, designed
to cut off inquiry into the seeming inconsistencies implic-
it in many of his actions
I find it implausible to believe that Gatliff would have
so uncritically accepted the information presented him
by Wheeler in light of his own admission that March had
been a month in which the Respondent had pulled out of .
its financial slump and that 1981, overall, had been a
"very profitable year." I also find it difficult to believe
that Gatliff would not at some point have communicated
with his management team that the "layoff plan," which
they had worked up in a purely "hypothetical" vein,
might have more reality than he had led them to believe
when he asked them to write it up, apparently on only
minutes' notice. I recognize that I am not free to substi-
tute my own business judgment for that of Gatliff I also
concede that I must take into account the probability
that. Gatliff may well have been under an emotional
strain , but it does not seem likely to me that an employer
would 'act in such precipitous fashion to dismantle its
service apparatus based on a plan drafted so casually.
Nor 'does it seem likely to me that, had Gatliff truly
been concerned solely with 'the Respondent's financial
situation , he would have left himself so ignorant as he
professed to be at the trial concerning the number of
automobiles owned by the Respondent before the layoff
and the number owned thereafter.30 Nor the cost of a
part for approximately 700 customers, which Gatliff
claimed was a great success (and in fact brought the Re-
spondent out of its economic doldrums).32
90 The number remained precisely the same Yet, as seen above, Gatliff
had earlier claimed that one of the primary reasons for the layoff was the
need to cut expenses, and to be able to cut back on the need for transpor-
tation provided by the Employer, by retaining only employees who
owned or had access to their own automobiles
32 My uneasiness regarding the reliability and meaning of the financial
data provided by the Respondent here is heightened by recollecting the
testimony concerning the manner of paying for this party, as well as a
number of other business expenses of the Respondent As explained to
me, apparently a number of enterprises in Hawaii pay one another for
various services, not in cash , but in "contra," which was defined as the
exchange of goods or services in lieu of cash Additionally , while I have
no basis to believe that the condominium carried on the Respondent's
books as a tax writeoff, or its airplane , are not legitimate business ex-
penses, I am convinced that the validity of the figures presented to me in
the financial reports may be greatly affected by such items as "contra" or
tax writeoffs.
560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Steckler initially testified that Hearn, Yokoyama, Lor-
enzo, Stacia, and Uyeda were selected for retention by
her, based on the fact that she knew them to, have auto-
mobiles33 available for use in their work, as well as their
training and skills. She admitted, however, that the em-
ployees to be laid off were never even asked whether
they could supply their , own. transportation or gain
access to automobiles. She justified this only by noting
that, when she was asked to make up the list of who to
retain, it was merely a "hypothetical question."
When she was asked about the various "factors" she
considered in reaching the decision to retain or not to
retain each of the employees affected by the layoff, she
initially came up with a rather short list of qualifications
However, the more opportunity she was given to enlarge
the list the longer it became, until she eventually settled
on a list of factors, as follows, in order of importance:
1. Those who had cars;34 -
2. Knowledge of a total range of machinery;35
3. That the employee had no record "backflashing,"
.(or, as I interpreted her meaning, "temper tan-
trums");36
4. That the employee had good communication
skills; 3 7
5. That the employee had not-previously given her
"static'';38
6. The employee's ability to handle pressure;
7. The employee's productivity;
8. Steckler's personal feeling towards the employ-
ee;39
9. That the employee had previously given notice
to quit;4O
10. That the employee was brand new.4 i
Thus, it seemed apparent that when given the opportu-
nity to do so, Steckler was only too eager to enlarge and
magnify the list of factors justifying her decision to lay
off certain employees. I infer therefrom: a desire on the
part of the Respondent to buttress and shore up a deci-
sion which was hastily and casually made 42 I am. rein-
13 This was the sole criteria provided her decisional process by Gatltff
34 According -to Steckler, this eliminated Perkins, Like, Hower, and
Tavorn But she never inquired , as noted above, about whether these em-
ployees had access to cars , she only noted that they were the four who
were using company cars' besides Mr and Mrs Gatliff, Yokoyama, and
Steckler "-
3s which Steckler claimed was used to eliminate Smith, a new em-
ployee
36 By this consideration she eliminated employees Burkman and Lee
97 An additional factor in Lee's selection for layoff
-98 This she used as additional factors for Burkman and Lee
.38 Though factors 6, 7, and 8 were claimed by Steckler to have been
part of her process of selection, she later admitted that none of these fac-
tors could be applied to any of the people involved here
40 This was an additional factor in selecting out Burkman
4 i This applied to Smith, as noted above
42 The inconsistent and shifting reasons advanced by Steckler for the
.selection for layoff leads me to draw an unfavorable inference against the
Respondent for its inability to settle upon an explanation for the layoff of
the persons so selected See Zurn Industries, 255 NLRB 632 (1981), citing
A. J Krajewski Mfg Co v. NLRB, 413 F 2d 673, 675 (1st Cir 1969),
where the court noted "especially the Company' s iriability'to adhere with
consistence to any explanation for its action", also NLRB v Teknor Apex.
Co., 468 F 2d 692, 694 (1st Cir 1972) •
Additionally , it must be borne in mind that when an employer attempts
to distort and magnify an employee 's deficiencies , as I viewed -Steckler's
forced in this inference by the fact that no effort was
made to check to see whether those claimed to be caus-
ing the Respondent to suffer the expense of maintaining
cars could supply themselves with their own cars, and
the fact that the Respondent never, in fact, got rid of any
-cars. I _L
Another factor which gives me-pause in accepting the
Respondent's proffered reasons for the layoffs as' being
solely based on economic considerations is that the lay-
offs do not appear to have been of much benefit. As
noted above, the number of cars operated by the Re-
spondent was never reduced. Apparently, they were
simply. reassigned.
Further, it is unclear just how any savings were real-
ized by the Respondent, to brighten its economic picture.
Gatliff admitted, even claimed, that he had less than per-
fect knowledge and recollection regarding how many
people worked for the Respondent, and how much they
were making. Prior to the layoff, Paul Matsuda was the
highest paid technician at the rate of $1500 per month.
And the other technician with a high paid 'rate ($1350"
per month) before the layoff, Hearn, was retained. Yet,
within a month or two following the' layoff, the Re-
spondent had rehired a shipper and receiver, Saben
Hutchison; a dispatcher, Debbie Cathey, and as many as
10 technicians. Significantly, among these technicians
were five whose rate of pay matched that of the highest
paid employee before the layoff. Everett Baker, Marshall
Hill, Darrell Leamy, Kur Smith, and John Ricafort, each
was hired and paid a salary to match Matsuda's, i.e.,
$1500 per month; two others, Choy and Griffs, were
hired and paid $1000 a month; a relatively high rate
among the technicians preceding the layoff.
Thus, summarizing , I conclude that the General Coun-
sel has established numerous violations of Section 8(a)(1)
of the Act by the highest official of the Respondent, that
the Respondent (through the same official) exhibited
animus toward the concept of unionization, showed a
clear interest iii learning who was involved in the effort
to unionize,43 and acted precipitously in a major business
testimony to do, it casts a deep shadow over the claim that mere business
judgment was involved in the employee 's termination US Postal Service,
-256 NLRB 736, 738 (1981)
43 The Respondent cannot deny that it had knowledge of the Ictivi-
ties, or at least a strong suspicion , of some of its employees Gatliff admit-
ted as much about Perkins and Hussey He also admitted having knowl-
edge that Hussey, Like, and Lee were congregating and "whispering se-
cretive stuff" Additionally, Tavorn was known-by Gatliff to have se-
cured a union card from Perkins And Sengdara was known , if not as a
union sympathizer , least be willing to make capital out of the Union's
advent, not allowing his difficulty in understanding English to prevent
him from recognizing opportunity knocking at his door
Taking these six employees into account . plus the two alleged supervi-
sors,- and considering the stony silence that greeted Gatliffs repeated
pleas for information at the all-employee meeting on the morning of
April 7, 1 accept the General Counsel's argument that the probabilities
are that the Respondent had formed a strong opinion by the time of the
layoff about the identity of employees who might hold sympathies in
favor of the Union
The General Counsel also argues that the fact that Gatliff was not
shown to have actual knowlege of the protected activities of a few of the
employees caught in the layoff does not preclude a finding that they, as
well as the others, whose union sympathies were known, were laid off
for discriminatory reasons His quotations from Majestic Molding Products
Continued
GATLIFF BUSINESS PRODUCTS
decision. Taking all this into account, plus the contriv-
ance and inconsistency surrounding the purported cause
for the layoff, I conclude that the real reason that the
Respondent effected the layoff of April 8 was to rid
itself of a number of union adherents and to demonstrate
its `power among those who remained. The effort to
cloak this action in the quise of general layoff was car-
ried so far as to attribute it to the seemingly innocent
decisional process of Steckler and Wheeler
The fact that it included people who were not shown
to have engaged in any particular union activities does
not detract from a conclusion that the layoff was, as a
whole, discriminatory. It follows, that everyone affected
by it should be reinstated and made whole.44
While I have noted that the General Counsel's evi-
dence has failed to prove that the Respondent had specif-
ic knowledge of the union activities of certain of the em-
ployees caught up in the layoff As shown previously,
however, a large proportion of the Respondent's employ-
ees "service side" employees were specific subjects of
the Respondent's conduct in violation.of Section 8(a)(1)
of the Act. From this I infer that the Respondent either
knew, or suspected, that they harbored sentiments favor-
ing the Union. Additionally, in light of the evidence of
the Respondent's clear interest in obtaining information
about the union activities and sympathies of its employ-
ees, and the several instances of interrogation designed to
gain such information; I think it ,is likely that the Re-
spondent had, at the least, a fairly clear picture-of the
sentiments held by most, if not all-,,of-its employees. Cer-
tainly, the fact that only a relatively' small number of em-
ployees is involved in this case would make the task of
learning employees' view and sentiments relatively easy.
Compare Coral Gables Convalescent Homes, 234 NLRB
1198' (1978); Friendly Markets, 224 NLRB 967, 969
(1976); Hadley Mfg. Corp., 108. NLRB 1641, 1650
(1954).45
From all of. this I am persuaded that despite the
record's,failure to demonstrate that each of those-laid off
was a union activist or adherent or was thought to be by
the Respondent, that the General Counsel has succeeded
in proving that the entire program of layoffs was infect-
ed with invalidity, since it resulted from_a scheme under-
v NLRB, concerning the effect of some "white sheep" suffering along
with the black is persuasive to me that a "power display " in a form of a
mass layoff, motivated by.a desire to discourage membership in any labor
organization , satisfies the requirements of Sec 8 (a)(3) to the letter
44 This would , of course , include both Hussey and ' Sengdara
4' Read together , these cases point out that the so-called -small plant
'doctrine has application in circumstances where the employee comple-
ment is small, the employees carried out their union activities openly, and
during times such that in the normal course of events the Respondent's
supervisors must have noticed them In this case the principle is not per-
fectly symmetrical , in that employees are not shown to have been carry-
ing out activities openly But I cannot help noting that the employee
complement was small , the Respondent has been shown to have been at
pains to discover the identity of union sympathizers , and there were cer-
tamly -instances shown in the evidence where the Respondent admitted to
noticing the activities of its employees and feeling concern that such ac-
tivities might be related to the Union (e g, Gary GatlifFs testimony con-
cerning Hussey having been seen "whispering " with vanous of the tech-
nicians)
561
laid with retaliatory and discriminatory motivation. Cf.
Valley Iron & Steel Co.; 224 NLRB 866 (1976).46
The Respondent ' s' animus and discriminatory intent is
evidenced by the numerous and serious violations of Sec-
tion 8(a)(1) of 'the Act, involving, a`s they did, a very
large proportion of the entire employee complement,
interacting directly with the Respondent's chief execu-
tive officer. While not dispositive of the issue of discrimi-
natory intent; proof that an employer has demonstrated
hostility, whether by violations of Section 8(a)(1) or oth-
erwise, toward the concept of employees' rights persua-
sive. Blackstone Co., 258 NLRB 945' (1981). The General
'Counsel's evidence provides ample basis for inferring
that the Respondent would have welcomed an opportu-
nity to rid itself of adherents to the cause of unionism,
and that the protected conduct of employees was "a mo-
tivating factor" underlying the Respondent's decision to
lay off its employees on April 8.
Thus, even if I were to conclude (as I do not) that the
Respondent's motive was not a sham or pretext, at the
least, the burden is shifted to the Respondent to demon-
strate, if it can, that it would have taken the same action
even in the absence of protected conduct by' its employ-
ees.
As noted above, the Respondent has presented the un-
contradicted' testimony of Gary Gatliff and Wheeler, in
which they detail the concern expressed to Gary Gathff
by Wheeler regarding the allegedly perilous 'financial
condition confronting the Respondent during the period
corresponding roughly with the Union's organizational
efforts, and up to, and presumably past, the day of the
election, April 13.
Gatliff testified that 1981 was a highly profitable year
for'the Respondent. He also admitted that the month of
March was characterized by an upturn in the Respond-
ent's volume of business, a' happy event he attributed to
the promotional effort involved in giving a party for
some 700 customers. Thus, it would seem that the eco-
nomic difficulties faced by the Respondent must have
been of the type which occur suddenly and which results
in severe consequences.
A number of- seeming inconsistencies (e.g, the use of
contra, the quick restaffing by a higher paid employee
complement, the failure_ to dispose of the automobiles, or
otherwise effect savings , in transportation costs, etc.)
have been examined earlier, in connection with credibil-
ity resolutions and inferences to be drawn in connection
with the General Counsel's prima facie case, and will not
be repeated here. Nonetheless, they are equally troubling
to me when considering the issue of whether or not 'the
Respondent has borne its burden, as set out above.
Voluminous records' were introduced into evidence,
ostensibly to show the state of the Respondent's econom-
ic health during the years of 1981 and 1982..1 have care-
fully reviewed these records and can =only say that they
seem to me to serve the Respondent's cause very little.
For I still find myself unable'to determine that there was
any particular point in time, especially during April, at
' 46 Unless there be any question , I note that it has long since been set-
tled that an employer may violate the Act by laying off employees, as
well as by discharges Cf, Lone Star Bag Co, 8 NLRB 244 (1938)
562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which the Respondent's financial situation became so
strained, and differed so much from the norm, that I am
able to determine that the Respondent has fulfilled its
burden of proof in this matter.
It is obvious that the record in this case establishes
that in early, April ,.the Respondent was "cash poor."
Taken together, the Respondent's testimony from Wheel-
er and Gatliff, also establishes that credit had been with-
drawn from the Respondent by its largest suppliers, and
that it was overdrawn'at the bank, apparently to the tune
of $40,000 It is also clear that for several months, the
Respondent had been-compelled to make special arrange-
ments to secure machines from its largest supplier and to
make arrangements. to repay loans to its bank. Part of
this arrangement was, for Gary and Jane Gatliff to
assume personal liability on the Respondent's loans from
the bank. Further, the Respondent claims that no relief
for the cash flow problem was, to be had from Febru-
ary's "extraordinary income," resulting from the forgive-
ness of a $410,000 debt, and a payment of $5000 in cash
from another corporation as a result of a lawsuit which
was settled that month.
The Respondent argues in its brief that March proved
to be a "very poor month" for the Respondent, but this
contention is at variance with a fact, already noted, i.e.,
the testimony of Gatliff, that March was a month which
witnessed an upturn in sales to a point where business
could be said to be "average."
Nonetheless, according to the testimony of Wheeler
and Gatliff, when the Respondent was some $40,000
overdrawn at the bank, and Wheeler spoke of Gatliff to
inform him that there was no money with' which to make
the next payroll on the following day. Though, eventual-
ly, the payroll was met, Wheeler continued to stress to
Gatliff that the cash_situtation was critical and that ex-
penses would have to be cut. By, April 7 at least one of
the Respondent's corporations was still approximately
$20,000 overdrawn.
Thus, Gary Gatliff would have it that this lead inevita-
bly to his discussion on April 7 with Steckler and Wheel-
er, creating the "hypothetical list" of employees to keep
if they were going to "start all over again."
On the other hand, to add some 'perspective, Gatliff
admitted that this was not the first time that the Re-
spondent had faced dire economic straits. Indeed, though
it had once owed $10,000 in delinquent taxes, this layoff
was the first in the Respondent's 10-year history. Nor
can I forget the fact shown from' the Respondent's own
record that as of February 1982 the Respondent showed
a total net profit of almost $400,000; the Respondent
argues that all of this and more is made up merely of a
paper transaction, the settlement of the lawsuit referred
to earlier herein: I find, however, that it is difficult to be-
lieve that the Respondent would argue for such conclu-
sion had it been the party forgiving the debt in the law-
suit.
Further, reviewing the net worth of the Respondent
during late 1981 and the first 5 months of 1982, it is seen
that, while the • Respondent's net worth varied from a
low of $162,000 in January to a high of $252,000 in Feb-
ruary, the average does' not seem to vary remarkably one
way or another. I - '
In examining the records of the Respondent through-
out the early months of 1982, it appears that some losses
were sustained by one or the other of the two corpora-
tions during several of the months. However,, the overall
picture does not persuade me that the Respondent was
suffering to the point of a layoff being necessary, for
there was an extraordinarily large profit made during
February and Gatliff's testimony was the effect that sales
took an upturn during March;
Taking all this into account, and attempting to avoid
substituting my judgment for that of the Respondent, I
have concluded that the Respondent's evidence fails to
meet the burden imposed on it by the General Counsel's
showing of a strong prima facie case. While it is true that
difficulties were experienced, and it is doubtless that cash
flow problems existed, it does not appear to have been of
such magnitude, or so markedly different in, nature or
size from those rather previously experienced47 to lead
to the conclusion that the Respondent would have acted
(a) as it did, (b) when it did, (c) to the degree that it did,
had its employees not at that time been guilty of demon-
strating a willingness to ally themselves with the
Union.48 Accordingly, I find that the Respondent's as-
serted reason 'for the layoffs is insufficient to• meet its
burden of showing that the layoff would have occurred
with or without the employees' engagement in protected
activities.
On this record, I find that the layoff of the employees
named above on April 8 flowed. from their engagement
in union or other protected activities It follows that I
also conclude that the Respondent has violated Section
8(a)(3)_ and- (1) of the Act by each employee affected by
the layoff.
G. The Amendments to the Complaint
In the midst of the trial herein, the General Counsel
sought to amend the complaint on three occasions, as
follows:
1. That the employees laid off on April 8 later joined
by other employees, engaged in a strike from April 8
until about May 14, and the strike was caused or pro-
longed by the unfair labor practices of the Respondent.
2. That employees Yokoyama and Uyeda were dis-
charged by the Respondent on May 3 because these em-
ployees chose to honor the picket line established by the
.employees who had been laid off on April 8.
3. That since May 1982, and continuing, the Respond-
ent has refused to hire individuals who had any union af-
filiation.
Over the, objections of the Respondent in each in-
stance, I granted the General Counsel's motion in ,in-
stances 1 and 2, and reserved my ruling as to.instances 3
47 As-witnessed by,the fact that Gatliff repeatedly told employees of
the four times that he had previously mortgaged his home to put money
into the business
ae Phrased differently, using the Supreme Court's words the Respond-
ent is fairly made to bear the "risk that the influence of legal and illegal
motives cannot be separated , because he knowingly created the risk and
because the risk was created not by innocent activities but by his own
wrongdoing " See Transportation Management Corp, supra, 462 U S 393
(1983)
GATLIFF BUSINESS PRODUCTS 563
Having reviewed the record, I have now determined
that the amendment in instance 3 should also be allowed.
'I, accordingly, grant the General Counsel's motion and,
overrule the Respondent's objections.
Generally' speaking the Respondent objected to each
of these motions.on the basis that they enlarged the area
it was required to defend, enlarged the potential mone-
tary exposure of the Respondent, amounted to unfair sur-
prise, gave it no opportunity to prepare a defense, and
violated the limitations of Section 10(b) of the Act.
In adhering to my rulings with respect to instances 1
and 2, and now granting the General Counsel's motion
with respect to instance 3, I bear in mind that in each
instance there is no hint of any sort of unfair advantage
having been sought by the General Counsel, or of any
attempt having been made to surprise the Respondent.
With regard to the fact and nature of the strike, I
pointed out to the Respondent that all that is involved is
a legal conclusion which will flow, if at all, from facts
already in evidence, and would require no additional
preparation upon the part of the Respondent's counsel or
the Respondent's witnesses. I did point out that, if neces-
sary, or if requested, I would grant the Respondent the
opportunity and time to prepare a defense.
With respect to the addition of'Yokoyama and Uyeda,
much of the same considerations apply. I accepted the.
representations of the General Counsel that he had never
been in contact with witnesses Yokoyama, Uyeda, or
Lorenzo, the latter being the witness who was on the
stand when this issue was first surfaced I advised the
Respondent's counsel of my opinion that I was, obliged
to allow the amendment under all the circumstances at,
hand, but that I would, if he desired, grant him a post-
ponement to allow him to prepare a defense. Significant-
ly, the Charging Party offered to, and did, seek out and
present witnesses Yokoyama and Uyeda to the Respond-
ent's counsel for preparation at a later time. The Re-
spondent chose to call only Uyeda as a witness.
Finally, instance 3 was brought about simply by virtue
of an admission, clearly spontaneously uttered, by the
Respondent's vice president Steckler that she had re-
ceived instructions, which she acted on in one instance,
from Gatliff to screen employment applicants so that no
union adherents would be hired. I point out to the Re-
spondent's counsel that this evidence could not be kept
out of the case, since it could be admitted on the basis
that it supplied necessary background and context, or
that it was evidence of the Respondent's animus or moti-
vation.
I note, as the General Counsel argues, that both
charges involved in this case do contain the routine'
"catch-all" language to the effect that "By the above and
other acts, the above-named employer has interfered
with, restrained, and coerced employees. in the exercise
of the rights guaranteed _in Section 7 of the Act." _
Certainly the better practice, and the more orderly
way of preceding, would have been for the General-
Counsel to have learned of these matters prior to the
trial and to have amended his complaint at the earliest
opportunity, thereby affording the Respondent all the
necessary time to prepare. Nonetheless, I believe that
sufficient safeguards were employed to ensure that the
Respondent's right to prepare a defense to all allegations
was not prejudiced. And, since it appeared to me that
each instance involved conduct which was quite closely
related to the other allegations made by the' General
Counsel, and grew directly out of the charged conduct, I
concluded that the amendments were properly to be al-
lowed See Niagara Falls Medical Center, 236 NLRB 342
(1978), and J. M. Tanaka. Construction, 249 NLRB 238
(1980).
H. The Nature of the Strike
As noted above, the Respondent's employees began
picketing almost immediately after the mass layoff of
April 8, and resumed picketing for a period ' of a few
days in May. .
Section 2(9) of the Act, provides that:
[T]he term "labor dispute" includes any contro-
versy concerning terms, tenure or conditions of em-
ployment, or concerning the association or repre-
sentation of persons in negotiating, fixing, maintain-
ing, changing, or seeking to arrange terms or condi-
tions of employment, regardless of whether the dis-
putants stand in the proximate relation of employer
and an employee.
Further, in Section 2(3) of the Act provides that:
[T]he term "employee" shall include any employ-
ee . . . and shall include any individual whose work
has ceased as a consequence of, or in connection
with, any current labor dispute or because of any
unfair labor practice; and who has not obtained any
other regular and substantially equivalent employ-
ment . . . ,
As interpreted, the Act provides certain protections to
employees who engage in two types of strike activity,
one of which is' called an "economic stake," and the
other of which`' is termed 'an "unfair labor practice
strike." Economic strikes are frequently defined upon a
negative basis, i:e., on that is neither caused nor pro-
longed by an unfair labor practice on the part of the em-
ployer.-An unfair labor practice stake is defined as strike
activity initiated or prolonged, in whole or in part, in re-
sponse to unfair labor practices committed by the em-
ployer.49
The economic consequences_to the parties because of a
determination about the nature of a'strike can be substan-
tial. For, while economic strikers do not forfeit all their
rights within the employment relationship by virtue of
their 'status, a finding that an employee is entitled to the
status of an unfair labor practice striker affords a striking
employee the right to reinstatement to his or her former
job at the time of an unconditional offer to return to
work; an unfair labor practice striker must be retained by
an employer even if permanent replacements have been
hired and it becomes necessary to discharge the perma-
nent replacements in order to make space available for
49 In both instances I speak here of the- primary stake, rather than any
secondary type activity
564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the returning, striker See generally Morris, The Develop-
ing Labor, Law, Bureau of National Affairs, 1983, pp.
1007-1008. - -
In this case the picketing which closely followed the
layoffs, as well as that which resumed on April 30 and
lasted for several days into-May, was obviously directed
against , and in protest of, the Respondent's treatment, a
substantial portion of which has been found to constitute
numerous and serious violations of the Act.
Accordingly, I find and conclude all affected employ-
ees were unfair labor 'practice strikers, entitled to rein-
statement to their former jobs. See Mastro Plastics Corp.
v. NLRB, 350 U.S. 270, 278 (1956); Twin County Truck-
ing, 259 NLRB 576 (1981).
A strike should be treated as an unfair labor practice
strike even though the, employer's unfair labor practices
are only a contributing cause to the strike. Where, as
here; the employees had no choice but to be out on
strike, due to the fact that most of them had been laid'
off, the point is, made even more emphatically that they
are-entitled to protection as unfair labor practice strikers.
See Larand Leisurehes, Inc. v. NLRB, 523 F.2d 814, 820
(6th Cir. 1975). The respondent is obliged to reinstate the
strikers immediately on their requests, and to pay them
backpay, under applicable Board standards, from the
onset of the strike. See Abilities & Goodwill, 241 NLRB
27(1979) .5 0
I. The Discharges of Lorenzo, Uyeda, and Yokoyama
As set forth earlier, I have found that shortly after the
resumption of the. picketing on April 30 Steckler' en-
gaged in the conversation with employees Lorenzo,
Uyeda, and Yokoyama. This was occasioned by a tele-
phone call to Jane Gatliff, inquiring about what the
named employees should do upon encountering a picket
line at the Respondent's premises Arrangements were
made for them to meet.Steckler at a side entrance. They
did so. Steckler told them that if they did not come
across the picket line, or if they honored the picket line,
they would be permanently replaced. Pressed- for an ex-
planation of the meaning of the words, she responded
that the words meant "exactly what I just said."51
If there was an ambiguity (and I think there was), in
the words of Steckler, that ambiguity was resolved after
that same day when, according to the credited testimony.,
of Uyeda, Gatliff told the three employees (Uyeda, Lor-
enzo, and Yokoyama), as they were outside the Respond-
ent's premises on the- street, that "If you don't work,
you're all out of a job."
In light of my credibility resolutions against Steckler
and Gatliff in this incident, it is clear that if the employ-
ees were engaging'in activities protected by the Act that
an unfair labor practice should be found in connection
with their discharge for having done so. The Board has
50 The record is inadequate to determine the length of the strike, or
whether and when employees offered themselves for reinstatement
. Equally unclear is the scope and effect of the Respondent 's claim that
certain offers of reinstatement were made by it and directed to employees'
through the president of the Charging Party All such questions , includ-
ing the amounts of backpay due employees, if any, left for a supplemental
proceeding , or for the voluntary compliance efforts of the parties.
5 1 According to the credited testimony of Lorenzo
consistently held that the right to honor a picket line is
one created and protected by the Act, even going 'so far
as to make those rights extend to premises not located at
the facilities of the employees' 'employer. See Business
Services By Manpower, 272 NLRB 827 (1984).
Accordingly, I find and conclude that employees Lor-
enzo, Uyeda, and Yokoyama were unlawfully discharged
by the Respondent on May 3 and are entitled to rein-
statement and backpay in accordance with estimated for-
mulas.
On the, foregoing findings of fact and the entire
record, I state the following -
CONCLUSIONS OF LAW
1. Respondents Gatliff Business Products, Inc. and
RBC Service Corporation are, jointly, employers within
the meaning of Section 2(2) of the Act' engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. Service Employees International Union, Local 556,
AFL-CIO is a labor organization within the meaning of
Section 2(5) of the Act.
3. By interrogating, employees concerning- their own
and other, employees' union activities, leanings,-and sym-
pathies; by threatening to exact, or exacting, economic
reprisals on employees because of the employees' union
activities, leanings, or sympathies; by threatening to close
the business, or to withdraw economic support from the
business, or to lay off employees, or to deny promotion
to employees because of their union activities, sympa-
thies, and leanings; by imparting to employees that they
will be granted benefits in the event they choose not to
select a labor organization as their collective-bargaining
representative; and by, telling employees that their union
activities'are being kept under surveillance, the Respond-
ent violated Section 8(a)(1) of the Act.
4. By about April 8, 1982, laying off employees John
Burkman, Robert Garcia, Gregory Hower, Priscilla
Hussey, Nathan Kaawa, Ernie Lee, Eldred Like, Thomas
Perkins, Leroy Smith, Carl Tavorn, and Stanford To-
kioka, the Respondent violated Section 8(a)(1) and (3) of
the Act.
5. By about April 8, 1982, discharging employees
Georgia Chai, Paul Matsuda, and Bounthan Sengdara,
the Respondent violated Section 8(a)(1) and (3) of the
Act.
6. By about May 3, 1982, discharging employees Dean
Yokoyama, George Lorenzo, and Dennis Uyeda, the Re-
spondent violated Section'8(a)(1) and (3) of the Act.
7. The strike engaged in by the employees commenc-
ing about April 9, 1982, was caused or prolonged by the
Respondent's unlawful conduct, and thus was an unfair
labor practice strike as of April 9, 1982.
8. The Respondent has not violated the Act in any
manner other than as specified above.
.9. The above unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
GATLIFF BUSINESS PRODUCTS 565
THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices within the meaning : of Section
8(a)(1) and (3) of-the Act, the Respondent shall be or-
dered to cease and desist therefrom, and to take -certain
affirmative actions designed to effectuate the policies of
the Act.
In light of the findings that the Respondent unlawfully
discharged employees Georgia Chat, Paul Matsuda,
Bounthan Sengdara, Dean Yokoyama, George Lorenzo,
and Dennis Uyeda, and that the Respondent unlawfully
laid off employees John Burkman, Robert Garcia, Greg-
ory Hower, Priscilla Hussey, Nathan Kaawa, Ernie Lee,
Eldred Like, Thomas Perkins, Leroy Smith, Carl
Tavorn, and Stanford Tokioka, it shall be ordered to
offer them full and immediate reinstatement to their
former positions of employment or, if those positions no
longer exist, to substantially equivalent positions, without
prejudice to their seniority or other rights and privileges,
and make them whole for any loss of earnings they may
have suffered by reason of the unlawful discrimination
against them.
In addition, the employees who participated, or who
may still be participating, in the strike, caused or pro-
longed by the Respondent's unfair labor practices, shall
be offered reinstatement , and reinstated to their former
positions or, if such positions no longer exist, to substan-
tially equivalent positions without impairment' to their se-
niority and other rights and privileges, dismissing, if nec-
essary, any persons hired as replacements on or after
April 8, 1982. If, after such dismissals, there are insuffi-
cient positions remaining for all of the striking employees
who desire reinstatement the available positions shall be
distributed among them without discrimination because
of their union membership or activities or participation in
the strike, in accordance with seniority or other nondis-
criminatory practices as have been applied in the past by
the Respondent in the conduct of its business in Honolu-
lu, Hawaii. Those strikers, if any, for whom no employ-
ment is immediately available after such distribution,
shall be placed on a preferential hiring list with priority
determined among them by seniority or other nondis-
criminatory practices and, therefore, in accordance with
such system, they shall be offered reinstatement as posi-
tions become available and before other persons are
hired for such positions or work. The striking employees
shall be made whole for any loss of earnings they may
have suffered, or may suffer, by reason of the Respond-
ent's failure or refusal to offer them reinstatement, or to
reinstate them, by payment to each of them of a sum of
money equal to that which he or she would have earned
from the date of the Respondent's discharge of them, or
layoff of them, whichever applies to them respectively.
Backpay and interest thereon for the unlawful discrimin-
atees and the striking employees shall be computed in the
manner prescribed in F W. Woolworth Co., 90 NLRB
289 (1950), and Florida Steel Corp., 231 NLRB 651
(1977).52
52 See generally Isis Plumbing Co, 138 NLRB 716 (1962)
It'shall be further ordered that the Respondent remove
from its records any references to the-discharges or the
layoffs of the employees mentioned above, or any of
them, and that the Respondent provide each affected em-
ployee written notice of such removal, and inform him
or her that the Respondent's unlawful conduct will not
be used as a basis for further personnel actions against
him or her, in accord with the holding in Sterling Sugars,
Inc., 261 NLRB 472 (1982).
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
ed53
ORDER
The Respondents, Gatliff Business Products, Inc. and
RBC Service Corporation, Honolulu, Hawaii, their offi-
cers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Coercively interrogating any employee about union
support or union activities.
(b) Threatening to exact, or exacting, economic repris-
als upon employees because of their union activities,
leanings, or sympathies.
(c) Threatening to close the business, or to withdraw
economic support from the business, or to lay off em-
ployees or to deny promotions to employees because of
their union activities, leanings, or sympathies.
(d) Telling employees that they will be granted bene-
fits in the event they choose not to select a union as their
collective-bargaining representative.
(e) Imparting to employees that their union activities
had been kept under surveillance.
(f) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following action designed to effectuate the
policies of the Act.
(a) Offer employees John Burkman, Robert Garcia,
Gregory Hower, Priscilla Hussey, Nathan Kaawa, Ernie
Lee, Eldred Like, Thomas Perkins, Leroy Smith, Carl
Tavorn, Stanford Tokioka, Georgia Chai, Paul Matsuda,
Bounthan Sengdara, Dean Yokoyama, George Lorenzo,
and Dennis Uyeda immediate reinstatement to their
former positions of employment or, in the event that
such employees are still on strike and desire to remain on
strike, offer them reinstatement to their former positions
at such time as they terminate their strike or, if their
former positions are not available, to substantially equiv-
alent positions, without loss of seniority or other benefits,
discharging if necessary, any replacements and make
each employee whole for any loss of wages suffered as a
result of the discrimination against him or her.
(b) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
52 All outstanding motions inconsistent with this recommended Order
are hereby denied If no exceptions are filed as provided by Sec 102.46
of the Board 's Rules and Regulations , the findings, conclusions, and rec-
ommended Order shall , as provided in Sec 102 48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes
566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
personnel records and reports, and all other records nec-
'essary, to analyze the amount of backpay ,due under the
terms of this Order.
(c) Post, at its premises in Honolulu,, Hawaii, copies of
the attached notice marked "Appendix.1,154 Copies of the
notice, on forms provided by the Regional Director for
54 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 Na-
tional Labor Relations Board " shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals'Enforcmng air Order of the Nation-
al Labor Relations Board."
Region 37, after being signed, by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable,steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced; or covered by
any other material.
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.