Kraco Enterprises, Inc.

National Labor Relations Board - Board Decisions

Sep 20, 1976

226 N.L.R.B. 22 (N.L.R.B. 1976)

22 DECISIONS OF NATIONAL- LABOR RELATIONS BOARD
Krac6 Enterprises , `Inc. and International Brotherhood
of Electrical Workers, AFL-CIO, Local No. 11.
Case 21-CA=13959
September 20, 1976
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND WALTHER
On-June 9, 1976, Administrative Law Judge Henry
S. Salim issued the attached Decision in this proceed-
ing..Thereafter, the General Counsel and Respon-
dent filed, exceptions and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs,
and has decided to affirm the rulings, findings,' -and
conclusions of the Administrative Law Judge as
modified herein.
We agree with the Administrative Law Judge that
Respondent violated Section 8(a)(1) of the Act by
interrogating employee Doyne Lilly as to the identity
of union adherents, and by promising Lilly a wage
increase as a reward for supplying that information.
The violations occurred on September 3, 1975. On
the morning of that day, employee Pat Titus distrib-
uted union authorization cards to all the technicians
in the service and repair department. By noon, 12 of
the 13 cards had been signed and returned to Titus.
In midafternoon, Lilly, a technician, was ordered
to report to Maurice Kraines, chairman of the board
of Respondent. According to Kraines, the purpose of
talking to Lilly was to discuss his possible promotion
to a supervisory position. Kraines asked Lilly what
was going on down there, a reference to the service
and repair department. Lilly responded that there
was some talk of union activity, to which Kraines
replied that "there was more than talk; there have
been some cards signed that I have from at least four
different sources." Lilly indicated that everyone had
signed a card. Kraines asked Lilly to give him the
'Respondent has excepted to certain credibility findings made by the
Administrative Law Judge . It is the Board 's established policy not to over-
rule an Administrative Law Judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect. Standard Dry Wall Products, Inc, 91
NLRB 544 (1950), enfd 188 F.2d 362 (CA 3, 1951) We have carefully
examined the record and find no basis for reversing his findings
Additionally, we are satisfied that Respondent's contention that the Ad-
mimstrative Law Judge was biased is without merit In our opinion, there is
nothing in the record to suggest that his conduct at the hearing , his resolu-
tions of credibility , or the inferences he drew were based on either bias or
prejudice.
names of the men involved in return for Kraines'
giving Lilly a name. Lilly named, employees Pat Ti-
tus, Harold Albert, Bill Johnson, and Andy Winter,
of whom all but Winter were subsequently, dis-
charged.
Kraines then indicated that he was approving a
wage increase for Lilly, and further indicated that
Lilly should not be surprised if he found out that the
people he had named did not work much longer. Ad-
ditionally, Kraines stated that there would never be a
union in his company because his religion forbid it.
Later that day, Albert, Titus, and Johnson were dis-
charged. - -
The Administrative Law Judge found violations of
Section 8(a)(1) in Kraines' interrogation of Lilly as to
the identity of union adherents, and in the grant or
promise of a wage increase as a reward to Lilly for
supplying the requested information. Although the
General Counsel alleged in the complaint that other
portions of the September 3 conversation constituted
violations of Section 8(a)(1), the Administrative Law
Judge found that these allegations had not been
proved by a preponderance of the evidence. The
General Counsel excepted to, the Administrative-Law
Judge's failure to find the additional violations. We
find merit in the General Counsel's exceptions.
We find that Respondent, through Kraines, violat-
ed Section 8(a)(1) by the following conduct: creating
the impression of surveillance when Kraines indi-
cated to Lilly that he had it from four different
sources that authorization cards had been signed;
threatening to discharge employees when Kraines
told Lilly not to be surprised if the people he had
named did not work very much longer; and empha-
sizing the futility of selecting the Union because
Kraines' religion forbid it.
Considering all the circumstances, we find that the
above-described conduct constitutes additional vio-
lations of the Act. We note particularly that the em-
ployees named by Lilly were discharged shortly after
his conversation with Kraines, under conditions
which are violative of Section 8(a)(3). We further
note that Kraines never did discuss with Lilly his
promotion to a supervisory position. Additionally,
we have found other statements by Kraines in the
same conversation to have been coercive in nature,
and we are of the opinion that the conversation
should be viewed in its totality and in the context of
other violations of the Act.
AMENDED CONCLUSIONS OF LAW
Substitute the following for the Administrative
Law Judge's Conclusion of Law 1:
"1. By interfering with, restraining, and coercing
226 NLRB No. 8
KRACO ENTERPRISES, INC. 23
employees in the exercise of rights guaranteed them
in Section 7 of the Act, Respondent has engaged in
unfair labor practices within the meaning of Section
8(a)(1) of the Act."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Kraco Enterprises, Inc., Compton, California,- its of-
ficers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating employees as to the identity of
fellow employees' union activities and sympathies
and their membership in, views about, or activities
on behalf of International Brotherhood of Electrical
Workers, AFL-CIO, Local Na 11, or any other la-
bor organization.
(b) Promising or granting wage raises as induce-
ments to influence or interfere with the employees'
choice of collective-bargaining representatives.
(c) Creating the impression among its employees
that it was engaging in surveillance of their activities
on behalf of the Union.
(d) Threatening to discharge employees because
they engaged in protected concerted activities on be-
half of the Union.
(e) Emphasizing the futility of selecting the Union
as the employees' collective-bargaining representa-
tive.
(f) Discriminating in regard to hire, tenure, and
other conditions of employment by discharging em-
ployees because they, engage in protected concerted
activities.
(g) In any other manner interfering with, restrain-
ing, or coercing its employees in the exercise of their
rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary
to effectuate the policies of the Act:
(a) Offer to Harold Albert, Pat Titus, and William
Johnson immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to
their seniority- or other rights and privileges, and
make them whole for any loss of pay which they may
have incurred by reason of Respondent's discrimina-
tion against them in the manner described in the sec-
tion of the Administrative Law Judge's Decision en-
titled "The Remedy."
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security records, timecards,
personnel records and reports, and all other records
necessary or useful to determine or compute the
amounts of backpay due under the terms of this Or-
der.
(c) Post at its plant premises. in Compton, Califor-
nia, copies of the attached notice marked "Appen-
dix." 2 Copies of said notice on forms provided by
the Regional Director of Region 21, after, being duly
signed by Respondent's representative, shall be post-
ed by it immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where no-
tices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered
by any other material.
(d) Notify the Regional Director for Region 21, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
2 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interrogate employees as to
their own or fellow employees' union activities.
WE WILL NOT promise or grant wage increases
as inducements to influence or interfere with the
employees' choice of a collective-bargaining rep-
resentative.
WE WILL NOT create the impression that we are
engaging in surveillance of our employees' union
activities.
WE WILL NOT threaten to discharge employees
because of their protected concerted activities.
WE WILL NOT emphasize the futility of select-
ing the union as the collective-bargaining repre-
sentative of the employees.
WE WILL NOT discriminate against employees
by discharging them for engaging in protected
concerted activities.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exer-
cise of,rights guaranteed them by the Act.
WE WILL offer Harold Albert, Pat Titus, and
William Johnson immediate and full reinstate-
ment to their former jobs or, if such jobs no lon-
ger exist, to substantially equivalent positions,
24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
without prejudice to their seniority- or other
rights and privileges, and make them whole for
any loss of earnings suffered by reason of their
discharge.
KRACo ENTERPRISES, INC.
DECISION
STATEMENT OF THE CASE
HENRY S. SAHM, Administrative Law Judge: This pro-
ceeding heard at Los Angeles, California, on January 15
and 16, 1976,1 pursuant to a charge filed September 4, and
a complaint issued October 22, presents two questions:
Whether Respondent discharged -three employees because
they engaged in union activities, and secondly, interrogat-
ed them about union activities; created the impression they
were under surveillance and attempted to reward employ-
ees for supplying information about who were union sym-
pathizers at Respondent's plant. Upon the entire record,
demeanor of the witnesses, and after due consideration of
the briefs filed by the parties there are made the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY AND THE LABOR
ORGANIZATION INVOLVED
The Company, a California corporation, is engaged at
Compton in the distribution and servicing of automobile
stereophonic equipment . It has an annual gross revenue in
excess of $50,000 which is received from customers located
in California, each of whom , in turn , annually purchase
goods valued in excess of $50 ,000 directly from suppliers
located outside the State . It is found that Respondent is an
employer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
The Union, International Brotherhood of Electrical
Workers, AFL-CIO, Local No. 11, is a labor organization
within the meaning of Section 2(5) of the Act.
II. BACKGROUND
In 1974 some of the employees who repaired and ser-
viced stereophonic equipment in the plant's technician
unit, discussed the advisability of organizing a union but
nothing came of it. In early August 1975, they again dis-
cussed whether they should unionize. On September 2, au-
thorization cards were obtained from the Union herein, the
Charging Party. The next day, before work commenced at
8 a.m., 12 of the 13 employees signed union authorization
cards. That same day as they were leaving the plant at
quitting time, the three alleged discriminatees were notified
by an official of the Respondent Company that they were
being "let go" because of "a cutback in service."
1 Except where otherwise indicated, all dates herein refer to the year 1975.
A. The Testimony
Pat Titus, one of the alleged discruninatees, testified that
a couple of weeks before his termination, he had discussed
on various occasions with his coworkers Harold Albert,
Andy Winter, and Doyne Lilly the feasibility of organizing
a union in the plant as they, were dissatisfied with their
wages. Titus contacted the Charging Party Union at noon
on September 2 and arranged to obtain authorization cards
after work from the union office. He was instructed by a
union official that it would be necessary to obtain the sig-
natures of the majority of the employees in the technicians
department. The following morning he distributed 13
union cards to the technicians in the service- and repair
department, of which 12 were signed and returned' to Titus
before the noon lunch hour. At approximately 2:30 p.m.
that afternoon, he telephoned. the union official, from
whom he had obtained the authorization cards, advising
him that all the repair and service technicians except one
had signed the cards.' As Titus, Albert, and Johnson, 3 of
the 12 employees who had signed union cards that day,
were leaving the plant at 4:30 p.m. on September 3, at the
close of the working day, they were notified by a company
official that they were being let go because of "a cutback in
service." After they were so notified, Titus returned the
signed union authorization cards to the business agent that
evening.
As Titus, Albert, and Johnson, who had signed union
cards, were leaving Respondent's plant at 4:30 p.m., on
September 3, the close of the working day, Harvey Rob-
inson, director of engineering, notified them that they were
terminated. When Harold Albert asked him the reason,
Robinson replied that there had been a "cutback" in orders
and that the workload of Respondent Company would not
require 13 repair and service technicians. Albert remons-
trated with Robinson, reminding him that he had been
doing an "outstanding job" to which Robinson agreed and,
continued Albert, he could not understand why he was
being let go. Moreover, Albert told Robinson he could not
understand the reason for their terminations- for lack of
work in view of the fact that the Company was presently
interviewing job applicants for technician jobs. Further-
more , said Albert, he could not understand if work was
slow why the Company was building additional work-
benches, one of which has been installed recently -in the
repair and service technicians' department. Robinson re-
plied that these new workbenches were being built'for use
in the quality control department and not for the use of the
repair and service technicians' unit.
As Titus, Albert, and Johnson's conversation with Rob-
inson was ending, Andy Winter, the only 1 of the 13 repair
and service technicians who had not signed the union card
and who was about to sign out, joined the group .3 They
informed Winter that they had just been terminated by
Robinson. Winter then walked over to where Robinson
was standing and in the presence of the three discharged
2 The only card not returned to Titus was one given to Andy Winter. See
infra.
3 Winter had received a union authorization card from Titus the morning
of September 3, the same day the men were discharged , but had not re-
turned it to him See fn. 2, supra.
KRACO ENTERPRISES, INC.
employees, handed him the union card which he had re-
ceived from Titus that morning. He showed Robinson his
unsigned union card and asked him: "Is this, the reason?",
and as Robinson looked at the union card which Winter
had handed him, Winter said to Robinson "that is an
IBEW union card." Winter then asked Robinson if that
was the reason the three alleged discriminatees were fired,
to which Robinson replied, "I don't- know. It could have
been." 4
When Titus was asked by the representative of the Gen-
eral Counsel about the new workbench that had been con-
structed recently and which Robinson told Titus was to be
used by the quality control employees and not in the ser-
vice and repair unit, Titus testified that this workbench had
on it equipment used by service and repair technicians and
not by quality control employees whose work did not en-
compass repairs and service.
Moreover, continued Titus, applicants for "electronic
technicians" jobs to "troubleshoot and repair auto radios,
stereos and related equipment" for which Respondent had
advertised in the Los Angeles Times newspaper, had been
given tests by the Respondent beginning about 2 weeks
prior to the time that the three alleged discriminatees were
fired. This advertisement which had been published in the
newspaper on August 25, 27, 28, and 31 and September 1,
3, and 4, reads as follows:
Electronic technician, troubleshoot and repair auto ra-
dios, stereos and related equipment. Requires knowl-
edge of basic electronics and appropriate experience.
Growing company-excellent salary and working con-
ditions. Apply Kraco Enterprises, Inc., 507 East Eu-
clid, Compton.
Titus testified that the, job description in the above-quoted
newspaper advertisement describes the same ,work that he
and the other two dischargees were performing as service
and repair technicians.
Furthermore, stated Titus, the tests which he saw three
job applicants being given by Respondent's chief engineer
were the same as those given him by Respondent when he
originally applied for his repair and service technician's
job. In addition, testified Titus, he heard Robinson, the
chief engineer, give these job applicants the same instruc-
tions with respect to their tests as he had been given when
he took the same test when he had applied for his job of
service and repair technician.
Harold Albert, a coworker and who was also discharged
on September 3, along with Titus and Johnson, and-who
performed the same duties, corroborated Titus' testimony.
With respect to the applicants who applied for the jobs
which were advertised in the newspaper on seven dates in
late August and the beginning of September, Albert testi-
fied that he saw over five men tested by Robinson about 2
weeks before he was fired, The test, explained Albert, was
the same test which he was given by Respondent when he
applied for a repair and service technician's job in May
1975. After Albert was discharged on September 3, he
4 Albert's testimony with respect to this incident was that Robinson said
to Winter: "I don't know, but it might very well be "
25
reapplied in "mid-December" for his former job and was
rehired the same month.
Doyne Lilly, who has been employed for 3 years as a
technician foreman (not a supervisor within the meaning of
Sec. 2(11) of the Act), related a conversation on Friday,
August 29 at 4:30 p.m., "quitting time," which he had with
Chief Engineer Harvey Robinson, about union activities
among the employees in the plant. Each day, testified Lilly,
he made a verbal report to Robinson regarding production
figures and "anything else that came up during the day."
During this conversation on August 29, Lilly testified that
he mentioned to Robinson "that there was talk of union
activity going around."
On Wednesday, September 3, about 2 p.m., Lilly was
ordered to report to Maurice Kraines, chairman of the
board of Respondent Kraco,Enterprises. Lilly's testimony
on direct examination reads as follows:
When I walked into the office Mr. Kraines asked
me what was going on down there. I told him that
there was some talk of union activity. He said, "Come
on. There is more than talk; there have been some
cards signed that I .have from at least four different
sources." So I told him, "Yes, sir, everyone has signed
a card, including myself." He said he -would like to get
to the bottom of it in words to that effect. He said he
would give me the names of one of the men if I would
give him the names of the others, so I gave him the
names of Pat Titus, Harold Albert, Bill Johnson and-
Andy Winter.
THE WITNESS [Lilly]:, He had asked me if anyone else
was involved. I told him they were not. He told me at
that time that he was approving a 50 cent per hour pay
raise which had been submitted [forme]. I don't know
how long previously it had been submitted, and he
also told me that not to be surprised if I found that
these people didn't work very much longer.
JUDGE: Now, what was that, again?
THE WITNESS: He told me not to be surprised if I
found out the people that I had named did not work
there much longer. I told him I wished that he would
not fire these people because good technicians were
hard to find.
Q. Was anything else said during the conversation
then?
A. Not that I recall.
Q. Was anything said concerning Mr. Kraines' reli-
gion then?
A. Oh, yes. He did tell me that there would never
be a union in his company because his religion forbid
it.
Q. Was Andy Winter terminated?
A. No. He was not.
Q. Has Bill Johnson been reinstated?
A. He has not.
Q. Do you know of any employees that have
worked overtime since the termination of Titus, Albert
and Johnson?
A. Yes.
Q. When did these employees begin working over-
time there?
26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A Sometime between the first and the middle of
November until the present.
Q. These employees are employed in the techni-
cians room 7
A. They are.
Q. Prior to the discharge of Titus, Johnson and Al-
bert, did any of these employees work overtime?
A. No.
Q. Approximately how many employees in the
technician's room are currently working overtime?
A. Approximately eight.
Q. On the average, to your knowledge, how many
hours are each man working overtime?
A. 12 or 13 hours each per week.
On cross-examination, it was elicited that Robinson had
told Lilly on either September 3 or 4 that he had recom-
mended him for a pay raise. Lilly added that he was "long
overdue" for an increase in pay.
Maurice H. Kraines, chairman of the board of Respon-
dent Kraco Enterprises, has "overall operational duty" of
the distribution and servicing of automotive stereophonic
equipment. He testified that on September 3 the day the
three service and repair technicians, the alleged discrimina-
tees, were discharged, the plant was operating with 13 such
employees. Kraines testified that a decrease in the orders
then on hand from their customers revealed that services of
three employees would not be needed. On September 1,
which was Labor Day, a plant holiday, the three selected
for "layoff" on September 3, continued Kraines, were Al-
bert, Titus, and Johnson who, he testified, had the least
seniority in the service and repair department. At another
point in his testimony, Kraines stated that the decision to
lay off three men because of economic considerations was
made on Friday, August 29.
On his direct examination, when asked the reasons for
the three technicians discharge, Kraines testified: "We an-
ticipated the reduced number of returns, number one, and
also we had the opportunity or possible sale of around
fifteen to eighteen thousand of our sets that were not to be
fixed but sold in the condition as they were when they were
returned to us, which would have reduced our total num-
ber of returns to a minimum amount that we decided by
numbers that 10 technicians could handle."
Kraines was then asked by his attorney about a conver-
sation he had with Doyne Lilly at approximately 2 p.m. on
September 3, when he asked Lilly to come to the executive
office. Kraines testified the reason he had requested Lilly
to come to the office was to discuss with him a pay increase
for which he had been recommended by a company offi-
cial. Also, continued Kraines. "The purpose of course was
to review him to see if he would make a supervisor in our
company which meant hiring and firing...." Kraines
stated that he then told Lilly "he had a 50 cent raise . . I
told him he was up for review and the 50 cent raise would
be only forthcoming . . [he was] passed over four months
before for other reasons. It was eleven months since he had
his last [salary] review there. . . . Last raise. He was given
a raise of 50 cents [on September 3]." Kraines went on to
say that four other employees received pay increases at the
same time but that he did not interview them as he had in
Lilly's case and he could not remember the names of the
other employees. He explained this by stating he personally
"reviewed" Lilly as he was considering him to take over the
position of Hartwell (Harvey) Robinson who was shortly
due to resign as chief engineer of the plant. However, Lilly
was not appointed and the position was not filled until
December, over 3 months later.
Kraines testimony is disjointed so that it is difficult to
determine the chronology in which these various incidents
occurred. Nevertheless, at some point in his conversation
with Lilly about 2 p.m. on September 3, Kraines' version is
that as Lilly entered his office, he greeted Lilly, saying to
him:
"Hi, Doyne; how are you? What is going on?" Doyne
in a very low voice told me that, "I guess you know.
There is union activities going on." I said, "No. I
didn't know." That led to the conversation and I told
him that we are hit by unions four or five times a year,
have been for the past 18 years and that this conversa-
tion-then we went on. He went on further then and
volunteered the names of the people. . . . He gave me
three names. He gave me Winter, Albert and Titus
. ... I told him we had active union solicitation in
our place all the time and was just another one of four
or five times that we have had in this past year. We
have this all the time , by the way.
Q. Did you tell Mr Lilly at that time that there was
a layoff coming?
A. He had asked me. He had said, "I hope you
don't lay these people off" or I had.said to him, "It is
unfortunate that this thing happened because we are
going to have a layoff and some of these names may
be on them but it had nothing to do with union activi-
ties. . . . It was coincidental that he was telling me
what he was telling me, because we had a layoff plan-
ned for that day [September 3]... .
Kraines then continued, on his direct examination, that
between the middle of August and on through September,
his Company had constructed or converted four or five
additional workbenches for use by the quality control tech-
mcians.
Kraines also testified that 9 of Respondent's 10 techni-
cians 5 have been working overtime 3 hours a day since
November 15 and up to the time of this heanng, stating, "it
was a planned program ... the situation still exists." In
this regard, he acknowledged that the Company had been
advertising in August and September in the Los Angeles
Times for technicians "to troubleshoot and repair stereos
and related equipment." Kraines admitted that about the
time the three alleged discnminatees were dismissed on
September 3, the Company had been giving job applicants
tests to determine their qualifications but he insisted these
were for citizens band radio technicians.
On cross-examination, Kraines testified they hired five
to seven additional technicians about the same time the
three alleged discriminatees were terminated but he main-
5 Krames referred to the Company employing either 9 or 10 repair techni-
cians after the termination of the 3 alleged discriminatees
KRACO ENTERPRISES, INC.
tamed that these new employees were quality control tech-
nicians performing work different from the three men
whom the General Counsel alleges were fired because of
their union activities. Moreover, Kraines testified, there
was a considerable increase in business during November
and December but, claimed Kraines, this consisted of qual-
ity control work. When the General Counsel's representa-
tive asked Kraines if he had looked into whether any of the
three men who were dismissed had the requisite skills to
work on citizens band radios or perform quality control
duties, he testified he did not. It is uncontradicted that
Titus, one of the men terminated, had been issued a CB
(citizens band) license by the Federal Communications
Commission to perform repair work on CB transmitters.
When Kraines was shown the advertisement which his
Company had inserted in the Los Angeles Times in August
and September, he admitted that no reference was made to
require applicants to have a Federal Communications
Commission license. It might be noted parenthetically that
no mention is made in the advertisement of quality control
technicians. -
On rebuttal, Titus testified that from approximately the
middle of June to the time of his termination on September
3, the Company had an incentive plan whereby the 13 tech-
nicians were granted a day off on Friday of each week if
they attained a company established weekly quota of the
number of units repaired. This clearly indicates that there
was no paucity of repair work at the time the three employ-
ees were terminated by Respondent.
B. Credibility Resolutions
The issue of motive as to whether these employees were
terminated by Respondent for engaging in protected activi-
ties or for good' cause is a pure fact question. However, the
Board and courts, in passing on it, have held that consider-
ation may be given to circumstantial evidence as well as to
that which is direct.6 Therefore, whether or not Respon-
dent was discriminatorily motivated must be determined
from the record as a whole. As to the 8(a)(1) and (3) viola-
tions, the witnesses for the General Counsel and- Respon-
dent are in conflict as to the salient issues in this case.
Nevertheless, after observing the witnesses testify, analyz-
ing the record and inferences to be drawn therefrom, this
conflict in testimony is resolved in favor of the version told
by the General Counsel's witnesses; namely, Titus, Albert,
Lilly,, and Gordon Lowe, production coordinator of the
classified advertising department of the Los Angeles
Times. Moreover, the defenses asserted by Respondent do
not follow a logical sequence and are not consistent with
the attendant circumstances in this proceeding nor with the
union animus displayed by Respondent, as hereinafter ex-
plicated.
Of the three employees who were discharged, only Titus
and Albert testified; Johnson did not. Titus and Albert
6 NL R.B v C W. Radcliff and W. W Manke, co-partners d/b/a Home-
dole Tractor and Equipment Company, 211 F.2d 309 (CA 9, 1954), cert
denied 348 U S. 833; N L R.B. v Schell Steel Products, Inc., 340 F 2d 568
(C.A. 5, 1965) See also N L R.B v Link-Belt Company, 311 U S 584, 602
(1941); F W Woolworth Company v NLRB, 121 F.2d 658 (C A 2, 1941)
27
impressed me as being honest and forthright witnesses, not
capable of successfully practicing guile or deceit. The im-
pression that they were testifying truthfully became a con-
viction when their stories were found, in the main, to be
both consistent with the attendant circumstances in this
proceeding and not substantially shaken by counsel for the
Respondent, who vigorously, searchingly, and thoroughly
cross-examined them. Kraines' assertion that his primary
purpose in calling Lilly to, his office on September 3 was to
discuss a proposed pay raise for him is not credited. On the
contrary, it is believed and found that his purpose was to
question Lilly as to who of the employees were union pro-
ponents.
111. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Alleged Violations of Section 8(a)(3)
There is here presented then a situation in which one of
the General Counsel's allegations is that these three em-
ployees were discharged because of their union activities.
The Respondent, on the other hand, denies this charge
contending that they were discharged for valid economic
reasons; namely, lack of work. It must therefore, be de-
termined whether this defense is the real reason or a pre-
text. I
In this proceeding, however, the bare recital of the facts
is sufficient to show the commission of the unfair labor
practices alleged in this complaint and to negate
Respondent's denial. This accounts for the detailed quot-
ing above of the witnesses' testimony in haec verba at the
risk of being unreasonably tedious. Accordingly, the vari-
ous witnesses' testimony has been considered compositely
and inferences drawn which are reasonably justified by
their cumulative, probative effect.
1. Discussion
Before considering the specific facts in this proceeding,
however, it might be well to discuss briefly some applicable
legal principles . In determining whether a discharge is for
union activities or for cause, the problem is to ascertain the
employer's intent or motive.7
It is the "true purpose" or "real motive" in hiring or
firing that constitutes the test. Some conduct may by
its very nature contain the implications of the required
intent; the natural foreseeable consequences of certain
action may warrant the inference . And see Republic
Aviation Corporation v. Labor Board, 324 U.S. 793. The
existence of discrimination may at times be inferred
by the Board, for "it is permissible to draw on experi-
ence in factual inquiries." 8
7
N L R B v. Jones & Laughlin Steel Corp, 301 U S. 1, 45-46 (1936);
Radio Officers' Union of the Commercial Telegraphers Union, AFL [Bull
Steamship Corp ], v. N L R. B, 347 U S 17, 42-44 (1953), N L R B. v. Erie
Resistor Corp, et al 373 U S 221, 227 (1963)
8 Local 357, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America [Los Angeles-Seattle Motor Express] v
N L R B, 365 U.S 667, 675 (1961)
28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Of course, an employer has the right to discharge em-
ployees for any reason or no reason, reasonable or unrea-
sonable, as long as the discharge is not in reprisal for union
activities. Since direct evidence of a purpose to violate the
Act is rarely obtainable, proof of motive usually entails the
weighing of conflicting inferences. The task of weighing
conflicting inferences is entrusted to the trier of the facts.
"The possibility of drawing either of two inconsistent infer-
ences from the evidence [does] not prevent the [trier of the
facts] from drawing one of them ...." 9
For the reasons hereinafter explained; it is believed the
record in this case makes plain that with 'respect to those
three employees found to have been discriminatorily dis-
charged, there is considerably more than a coincidental
connection between their union activities and their termi-
nations.10 Indeed, the "principal events [are] really no coin-
cidence at all, but rather part of a deliberate effort by the
[Respondent] to scotch the lawful measures of the employ-
ees before they had progressed too far toward fruition." 11
Under these circumstances "a very convincing case of dis-
charge for cause would have to be made to make unreason-
able a conclusion that [the] discharge[s] [were] because of
union [activity]." 12 As was stated by the Court of Appeals
for the Fifth Circuit "whatever may be thought of the case
made, if the occurrences are viewed and apprehended
piecemeal, viewed and apprehended as a whole, the record
fully supports the . . . findings: that an anti-union coup
was planned . . . to eradicate the union and unionism
from the plant. " 13
Contrary to Kraines' equivocal and contradictory testi-
mony denying he knew about union activity at the time of
the discharges, the evidence plainly reveals that Respon-
dent knew a campaign to organize its employees was in
progress at the time it discharged its three employees. Cor-
roborative of this finding is the fact that Respondent,
through Kraines interrogating Lilly, elicited information
that Titus, Albert, and Johnson were union proponents.
Moreover, the reasons offered by Kraines as to these three
employees' discharges were not only implausible but also
strain one's credulity. Furthermore, there is evidence that
Kraines granted' Lilly a wage increase under circumstances
which reveal it was a violation of the Act as detailed supra.
All of these indicia establish Kraines' predischarge knowl-
edge of its employees' union interest and activities and its
illegal motivation for their summary discharges as evi-
denced by the timing of their precipitous discharges in rela-
tion to their union activities without any advance notice.
9 N.L.R.B v Nevada Consolidated Copper Corporation, 316 U S. 105, 106
(1942). See also N L R B v. L. Ronney & Sons Furniture Manufacturing Co,
206 F 2d 730, 737 (1953), where the Court of Appeals for the Ninth Circuit
stated "It is well settled that an employer violates Section 8(a)(3), by dis-
charging . an inefficient employee if the employer's reason for so doing
is not the employee's inefficiency but his union affiliation or activity." Cf
NLR.B. v. C. & J Camp, Inc, d/b/a Kibler-Camp Phosphate Enterprise,
216 F 2d 113, 115 (C.A 5, 1954), where the court held that a justifiable
cause for discharge cannot shield discrimination in employment shown to
have been unlawfully motivated
10 N.L.R B. v Condensor Corporation of America, 128 F 2d 67, 75 (C A 3,
1942)
11 N.L R B v Jamestown Sterling Corp, 211 F 2d 725, 726 (C.A. 2, 1954)
12 Dannen Grain and Milling Company v. N L R B, 130 F.2d 321, 328
(C.A. 8, 1942).
13 Shell Oil Company v. N L R B, 196 F 2d 637, 639 (1952)
-2. Conclusions
Whether the motivation for these three employees' dis-
charges was discriminatory or not is a subjective matter,
which, if found, must be found from objective circum-
stances established by the record after duly considering all
countervailing testimony. One of the objective circum-
stances in this case is the employees' union interests and
activities, of which Respondent knew, as found above.,It is
clear from the credited testimony that Kraines learned
from Lilly prior to their terminations about their union
activities.
When Kraines was asked on his direct examination the
reasons for the termination of the three employees, his an-
swers were not only evasive but also difficult to compre-
hend. Moreover, cogent evidence contradicting the validity
of Kraines' lack-of-work defense for these three men being
discharged, is the fact that although Albert, one of the dis-
criminatees, was rehired in "mid-December," at a time
when the plant was working overtime, it was he who came
to the plant and applied for a job on his own initiative, and
Respondent did not contact Albert or the other two dis-
criminatees to offer them their old jobs after the 'plant's
production increased. This not only indicates bad faith but
tends to confirm the finding made herein that their sever-
ance on September 3 was motivated by proscribed consid-
erations.
Belying the veracity of Respondent's lack-of-work de-
fense for terminating these employees on September 3 is
the fact that it was constructing additional workbenches
for use by technicians and simultaneously advertising in a
newspaper in August and September for "Electronic tech-
mcians [to] troubleshoot and repair auto radios, stereos &
equipment." And this need for additional employees was
being advertised by Respondent at a time when Titus, who
was terminated on September 3, had an F.C.C. Class I and
II license to repair CB equipment. Kraines testimony that
he was unaware of Titus' qualifications is not credited. See
Owens-Corning Fiberglass Corporation, 146 NLRB 1492,
1497 (1964).
Against this simple fact pattern, Respondent's efforts to
exonerate itself from a finding of unfair labor practices by
claiming the three terminations were due to lack of work is
singularly unimpressive. After evaluating all these factors
and considering all countervailing evidence, it is found that
the evidence, realistically viewed, establishes that the three
employees were discriminatorily discharged for their pro-
tected union activities and that the grounds, advanced were
pretextual. Moreover, it is found that they were terminated
in order to discourage union activities at the plant. Proba-
tive of this finding is Respondent' s resentment as indepen-
dently evidenced by its violations of Section 8(a)(1) which
are discussed below, all of which were designed to abort,
discourage, and eliminate union activity in the plant in vio-
lation of Section 8(a)(3) of the Act.
B. The Alleged Violation of Section 8(a)(1)
"The question of organization by the employees . . . is
the exclusive business and concern of the employees. It is
the mandate of the statute that the employer shall not in-
KRACO ENTERPRISES , INC. 29
trade himself into the picture. The slightest interference,
intimidation or coercion by the employer of the employees
in the rights guaranteed to the employees by the statute
constitutes an unfair labor practice in violation of Section
8(a)(1) of the Act." 14
In determining whether an employer's conduct amounts
to interference, restraint, or coercion within the meaning of
Section 8(a)(1), the test is not the employer's intent or mo-
tive, but whether the conduct is reasonably calculated or
tends to interfere with the free exercise of the rights guar-
anteed employees by the Act.15 Interrogation of employees
with respect to prounion activity tends to deny employees
the free exercise of the right of self-organization guaran-
teed by Section 7 of the Act.16 Interrogation or questioning
may extract information which is often used for subse-
quent reprisals and to induce fear. This fear will be felt not
only by the worker interrogated but by all other employees
who hear of the questioning. Especially in the insecure or-
ganizational period, the employer can make a seemingly
innocent question suggest his displeasure with employees
who support the union. Such questions may convey an im-
agined threat of reprisal and dissuade employees from sup-
porting a union. In the instant case, the questioning is so
linked with other antiunion conduct that it is part of a
pattern of hostile conduct directed by Respondent against
union activity. Rewarding employees for supplying infor-
mation concerning who was active in promoting a union
obviously has a similar coerceive effect.17
An overall perspective of the factual situation of the case
at bar reveals Respondent's conduct was such as re-
strained, interfered with, and coerced employees in the ex-
ercise of their Section 7 rights for the reasons hereinafter
indicated. On the issue of whether Respondent violated
Section 8(a)(1), consideration has been given also to
Respondent's discriminatory terminations, supra, as it is
not required that each item of Respondent's conduct is
considered separately and apart from all others, but con-
sideration must be given to all such conduct as a whole
with a view to drawing inferences reasonably justified by
their cumulative probative effect.18
In applying these principles to this proceeding, it is con-
cluded and found that by the following conduct, which is
singly and in combination an unfair labor practice, Re-
spondent violated Section 8(a)(1) of the Act as it interfered
with, restrained, and coerced the employees in their free-
dom to choose to be represented by the Union herein or no
union:
1. When Kraines summoned Lilly on September 3 to his
office and in answer to Kraine's question as to "what is
going on" in the plant, Lilly whose testimony has been
credited, supra, answered that some of the employees were
fostering a union whereupon Kraines prodded him to di-
vulge their names.19
14 N.L.R.B v. William Davies Inc., 135 F.2d 179, 181 (C.A. 7, 1943).
15 N L.R B v. Illinois Tool Works, 153 F.2d 811, 814 (C.A. 7, 1946).
16 N L R B v. The Syracuse Stamping Company, 208 F.2d 77 (C.A. 2,
1953).
17
N.L.R.B. v. Somerset Classics, Inc, and Modern Manufacturing Co., Inc,
193 F.2d 613 (C A. 2, 1952), cert. denied sub nom. Modern Manufacturing
Co., Inc v. N.L.R.B., 344 U S 816, N.L.R B v. Franks Bros Co, 137 F 2d
989 (C.A. 1, 1943) affd. 321 U S. 702 (1944)
18 N L R.B v. Popeil Brothers Inc, 216 F 2d 66, 68 (C.A. 7, 1954).
2. After successfully eliciting from Lilly the names of
those employees who were interested in being represented
by a union , Kraines promised Lilly that he would receive a
50-cent hourly pay increase.
However, the General Counsel has not proved by a pre-
ponderance of the evidence that Respondent engaged in
surveillance of employees ' union activities ; threatened em-
ployees with discharge because they engaged in union ac-
tivities ; nor that Krames emphasized to employees the fu-
tility of selecting the Union as their collective-bargaining
representative . As to these allegations of the complaint
there was a lack of substantial evidence and a failure of
proof.20 Accordingly, it will be recommended that section
6(d), (e), and (f) of the complaint be dismissed.
CONCLUSIONS OF LAW
1. By interfering with, restraining, and coercing employ-
ees in the exercise of rights guaranteed them in Section 7 of
the Act, as specified in section III, B, above, Respondent
has engaged in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
2. By discharging and/or terminating the employment
of Harold Albert, Pat Titus, and William Johnson, as set
forth above, Respondent discriminated against them in re-
gard to their tenure of employment, and the terms and
conditions thereof, to discourage membership in the Union
and thereby engaged in, and is engaging in, unfair labor
practices within the meaning of Section 8(a)(3) and (1) of
the Act.
3. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent engaged in unfair labor
practices, it will be recommended that it cease and desist
therefrom and take affirmative action, as set forth below,
found necessary and designed to effectuate the policies of
the Act.
Having found that Respondent interfered with, coerced,
and restrained its employees in the exercise of rights guar-
anteed by Section 7 of the Act, which the basic purpose of
the Act was designed to achieve, it shall be recommended
that Respondent be required to cease and desist from in
any manner interfering with, restraining, or coercing its
employees in the exercise of rights guaranteed them by
Section 7 of the Act.21
Having found that Respondent discriminatorily termi-
nated and discharged the above-named employees on Sep-
tember 3, 1975, it will be recommended that it offer to each
of them immediate, full, and unconditional reinstatement
to his former or substantially equivalent position, without
i9See NL.R.B v Super Toys, Inc, 458 F2d 180, 183 (C.A 9, 1972);
Tonkin Corp. of California d/b/a Seven-Up Bottling Co of Sacramento v.
N L R B., 420 F 2d 495, 497-498 (C.A 9, 1969)
m N.L RB v. Columbian Enamel Co, 306 U.S 292, 300; N.L.R.B v. The
Citizen-News Company, 134 F.2d 970, 974 (C A. 9, 1943); Falstaff Brewing
Corporation, 128 NLRB 294-295, In 2 (1960).
2 N.L R B. v. Entwistle Mfg Co., 120 F 2d 532 (C A 4, 1941), California
Lingerie, Inc, 129 NLRB 912 (1960)
30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
prejudice to his seniority or other rights, privileges, or
working conditions, and make each of them whole for any
loss of earnings suffered by reason of the-discrimination
against him, by paying to each a sum of money equal to the
amount he would have earned from the date of the dis-
crimination against him until such discrimination has been
fully eradicated, less his net earnings during the period of
such discrimination. Backpay with interest at the rate of 6
percent per annum shall be computed in the manner set
forth in F. W. Woolworth Company, 90 NLRB 289 (1950),
and Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
The remedial purposes of the Act are quite clear. It is
aimed, as the Act says (Section 1), at encouraging the
parties and procedures of collective bargaining and at
protecting the exercise by workers of full freedom of
association, of self-organization and of negotiating the
terms and conditions of their employment or other
mutual aid or protection through their freely chosen
representative2
Inasmuch as the discharge of employees for reasons of
union affiliation or concerted activity has been regarded by
the Board as one of the most effective methods of defeat-
22 Republic Steel Corporation v N L R B, 311 U.S. 7, 10 (1940)
ing the exercise by employees of their rights to self -organi-
zation, I, am of the belief that there is danger that the com-
mission of unfair labor practices generally may be
anticipated from Respondent's unlawful conduct in the in-
stant proceeding . It will be recommended , therefore, that
Respondent be required to cease and desist from in any
manner interfering with, restraining , or coercing its em-
ployees in the exercise of rights - guaranteed in Section 7 of
the Act 23
William Johnson , who was one of the three employees
discharged at the same time as Titus and Albert , did not
testify. However , it is not necessary that a dischargee, who
claims to have been discriminated against and whose name
is mentioned in the complaint , make a personal appear-
ance and give personal testimony. The facts herein apply to
a group so that the relief afforded to the group may be
afforded to the one discriminatee, Johnson , who did not
testify. The test to be applied is whether there is evidence in
support of the allegations of the complaint irrespective of
the appearance or nonappearance of the employee as a
witness at the heanng.24
[Recommended Order omitted from publication.]
,23 N L R B v Entwistle Mfg Co, 120 F 2d 532 , 536 (C .A 4, 1941)
24 Kuehne Manufacturing Company, 7 NLRB 304, 323 ( 1938), Diaper Jean
Manufacturing Company, et al , 109 NLRB 1 045, 1061 , fn -28 ( 1954).