Kraco Enterprises, Inc.

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).