Renton Village Cinema

RENTON VILLAGE CINEMA General Cinema Corp. d/b/a Renton Village Cinema and Service Employees International Union, Local No. 6, AFL-CIO' and International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, AFL-CIO-CLC.2 Cases 19-CA-8183 and 19-CA-8300 February 22, 1977 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO On September 21, 1976, Administrative Law Judge Henry S. Salim issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. The General Counsel filed cross-exceptions and a brief in support thereof and in support of the Decision, and Local 6 filed a brief in support of the Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,3 and conclusions of the Administrative Law Judge, as modified herein. We find, as did the Administrative Law Judge, that Respondent violated Section 8(a)(3) and (1) of the Act by discharging janitors Charles Schumacher, Michael Thompson, and Lonnie Trudeau on Novem- ber 17, 1975, because of their activities on behalf of Local 6.4 To remedy these unfair labor practices, the Administrative Law Judge recommended that Re- spondent be ordered to pay the discriminatees for any loss of earnings sustained by them from the time of their discharges to their subsequent return to Respon- dent's employ in January and February 1976 and to bargain prospectively with Local 6 upon request. Inasmuch as there is some evidence that the discrimi- natees may not have been fully reinstated, we find Herein called Local 6. z Herein called IATSE. 3 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibili- ty 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 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. 4 In finding that the janitors were unlawfully discharged , we do not adopt the Administrative Law Judge's finding that Respondent's subsequent rehiring of the dischargees is conclusive proof of Respondent's unlawful motivation. 5 Beasley Energy, Inc., d/b/a Peaker Run Coal Company, Ohio Division #1, 228 NLRB 93 (1977).' Member Fanning, in accord with his position 228 NLRB No. 41 377 merit in the General Counsel's contention that the Administrative Law Judge's recommended Order may not return them to the position they would have been in but for Respondent's unlawful conduct. Accordingly, we shall issue our customary reinstate- ment and make-whole order, leaving the determina- tion of loss and the adequacy of reinstatement to the compliance stage of the proceeding. As for the bargaining order recommended to remedy the unlawful discharges, we find, consistent with our recent decision in Beasley Energy, Inc., 5 that, although no demand for recognition had been made, Respondent should be required to bargain upon request from the date it embarked on its unlawful course of conducts Accordingly, we shall order that Respondent bargain upon request with Local 6 as of November 17, 1976, the date Respondent unlawfully discharged employees Schumacher, Thompson, and Trudeau. We further find that the Administrative Law Judge correctly concluded that Respondent violated Section 8(a)(1) of the Act when, during a November 15, 1975, meeting of its "front employees" (cashiers, refresh- ment employees, ushers, and doorman), called by Respondent, Theater Manager R. W. Osgood (1) inquired as to whether those assembled had decided to support a union; (2) told them that if they elected to be represented by a union each employee would probably be able to work more hours, that fewer employees would therefore be needed, and that as a result there would probably be a reduction in the work force; 7 and (3) threatened them with more restrictive working conditions. We find merit, how- ever, in the General Counsel's exception to the Administrative Law Judge's failure to conclude that Respondent violated Section 8(a)(1) of the Act by announcing a pay increase at the same meeting. We find, as the General Counsel contends, that while the granting of the pay increase was concededly required by state law and was not violative of the Act the timing and context of the announcement establishes that it was part and parcel of Respondent's unlawful effort to discourage the employees from joining a union. in Beasley, does not accept this finding and would affirm the Administrative Law Judge's recommended Order. 6 By the date of the unlawful discharges, the entire janitonal complement had signed union authorization cards. As it is clear that Local 6 had at one time attained a majority standing, we find it unnecessary to pass upon the Administrative Law Judge's findings with regard to that Union's majority status. 7 While correctly citing the testimony of credited employee witnesses Monica Moore and Sharon Watson to this effect in his Decision, the Administrative Law Judge inadvertently misstated in the section entitled "Discussion and Conclusions," under the enumeration of Respondent's misconduct identified as "(2)," that Osgood told the employees that upon the advent of the union "there would probably be terminations which might result in those employees who survived the reduction -in-force being required to work more hours." 378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The pertinent facts are as follows: dissatisfied with the wages they were receiving from Respondent, the "front employees" contacted IATSE in late October or early November 1975, and thereafter scheduled a meeting for 10 a.m. on Saturday, November 15, 1975, at employee Watson's home to discuss the prospect of joining IATSE. A few days before the scheduled meeting, Watson informed Assistant Manager Deb- bie Long, an acknowledged supervisor, that the employees were considering joining a union. Long offered to ask her friend David Ewing, a manager of one of Respondent's other theaters where the employ- ees were represented by a union, to talk to the front employees. Neither Long nor Ewing attended the planned meeting, however, which was rescheduled for 9 a.m. after Respondent, without the customary advance notice, announced on Friday afternoon that a staff meeting would be held the next morning at 10 a.m. Following the employees' meeting at Watson's home, where 12 to 15 of the 20 employees in attendance voted "to join the Union," the employees proceeded to the staff meeting where Theater Manag- er Osgood informed the employees that they were to receive a wage increase. While Osgood testified that he told the employees the increase was in accordance with the State's new minimum wage law,8 according to the credited testimony of employees Watson and Moore,9 Osgood made no reference to the minimum wage,l° but told the employees they were getting the raise because they were underpaid and the increase was warranted.11 It was at this point that employee Bill Dugovich brought up the fact that the employees were considering joining a union. Osgood responded that he had heard "rumors" to this effect and asked whether the employees had decided to join a union. Osgood then suggested that the employees take a vote on the subject, and he and the other supervisory personnel who were also in attendance left the room. When Osgood and the others returned, the employees indicated that they had decided to continue investi- gating the matter of joining a union and began asking Osgood questions about union representation. Os- good, who allegedly told the employees he could not a Both Osgood and Respondent's division manager, Robert Painter, testified that they had known of the change in the State 's minimum wage law since September 1975. According to Painter , Respondent had not granted the mandatory increases because it was awaiting receipt of a copy of the regulation from the State Labor Department . Painter claimed that, when on November 14, 1975, he coincidentally received a copy of the regulation from a third party, he authorized Osgood's announcement. Osgood testified that during the fall of 1975 and in early November in particular certain employees had inquired about an increase in the minimum wage retroactive to September 1, 1975, that during a telephone conversation with Painter on November 14 regarding the janitors' discharge he raised the question of the wage increase, and that later that day Painter called to inform him that Respondent's "home office had finally checked it out," that there would be an increase , and that the staff could be so informed. a The format of the Administrative Law Judge's discussion of Watson's "technically or legally" get involved in such matters, continued to explain that if the employees elected to join a union there would probably be a reduction in the work force and more restrictive working condi- tions. Based on these facts, we find that Respondent acted improperly by announcing the wage increase. Re- spondent had been aware of the change in the State's minimum wage law for some 3 months, but had never so apprised the "front employees." Then, on the eve of the "front employees' " first meeting to discuss joining a union, Respondent decided to announce this mandatory increase. Significantly, the decision by Osgood and Painter to inform the employees of the increase at this time was made during the same telephone conversation in which they decided to discharge the entire janitorial complement for engag- ing in union activities. Further, Respondent staged the announcement for 10 a.m. on Saturday, Novem- ber 15, the same time the "front employees" had chosen to conduct their union meeting of which Respondent had knowledge. At the staff meeting, Osgood, acutely aware of the employees' dissatisfac- tion with the current wage scale, announced that Respondent was granting a substantial wage increase. Osgood also indicated that the increase was being granted because it was deserved, thereby inducing the employees to believe the increase, which in fact was not substantial, was the result of Respondent's generosity rather than the amended minimum wage law. When the "front employees" were not persuaded to abandon the possibility of organizing by the promise of a wage increase, Respondent threatened them with loss of their jobs and more restrictive working conditions. Also noteworthy is the fact that, on the same day Respondent announced the increase, it discharged the entire janitorial staff for engaging in union activities. Under these circumstances, we find that Respondent, by announcing the increase at this time and in this context, violated Section 8(a)(1) of the Act.12 Upon the basis of the foregoing facts and the entire record, the Board makes the following: testimony set forth in the section ofhis Decision entitled "Alleged Violations of Section 8(a)(1)" suggests that Watson is quoted verbatim. In fact, the discussion is an accurate paraphrase of Watson's testimony. 10 Moore indicated in her testimony that she learned of the change in the minimum wage law at this meeting, but, contrary to the Administrative Law Judge's finding that she "heard [this] from Osgood," Moore specifically denied that Osgood based the wage increase on the minimum wage law amendment. 11 The Administrative Law Judge found that Moore testified that Osgood told the employees the wage increase would "be a substantial raise ... from $1.75 to $1.79 an hour." Moore in fact testified that Osgood announced the increase would be substantial, but that she did not so consider the 4-cent-per- hour increase she received. 12 See, e.g., Spotlight Company, Inc., 188 NLRB 819 (1971). RENTON VILLAGE CINEMA 379 CONCLUSIONS OF LAW 1. General Cinema Corp. d/b/a Renton Village Cinema is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Service Employees International Union, Local No. 6, AFL-CIO, and International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, AFL-CIO-CLC, are labor organizations within the meaning of Section 2(5) of the Act. 3. All janitorial employees employed by Respon- dent at its Renton Village Cinema, Renton, Washing- ton, but excluding office clerical employees, profes- sional employees, guards, supervisors as deemed in the Act, and all other employees constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. At all times since November 17, 1975, Service Employees International Union, Local No. 6, AFL- CIO, has been and now is the exclusive representative of the employees in said unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. Respondent, by discouraging membership in Service Employees International Union, Local No. 6, AFL-CIO, by discharging its employees because of their union activities, has engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 6. Respondent, by interrogating employees con- cerning their union activities, has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 7. Respondent, by threatening employees with possible loss of employment or more restrictive working conditions in reprisal for union activity or membership, has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 8. Respondent, by announcing wage increases to its employees in order to influence their desire or decision with respect to International Alliance of Theatrical Stage Employees and Moving Picture Operators of the United States and Canada, AFL- CIO-CLC, has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 9. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, General Cinema Corp. d/b/a Renton Village Cine- ma, Renton, Washington, its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in Service Employees International Union, Local No. 6, AFL-CIO, or any other labor organization, by discharging or in any other manner discriminating against employees in regard to their hire or tenure of employment or any terms or conditions of employment. (b) Interrogating employees concerning their union activities. (c) Threatening employees with possible loss of employment or more restrictive working conditions in reprisal for union activity or membership. (d) Announcing wage increases or other benefits to employees in order to influence their desires or decisions with respect to International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, AFL-CIO-CLC, or any other labor organization. (e) In any other manner interfering with, restrain- ing, or coercing employees in the exercise of rights guaranteed them under Section 7 of the Act, except to the extent that such rights may be affected by an agreement regarding membership in a labor organiza- tion as a condition of employment as authorized in Section 8(a)(3) of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Offer Charles Schumacher, Michael Thompson, and Lonnie Trudeau immediate and full reinstate- ment to their respective former jobs or, if those jobs no longer exist, to substantially equivalent jobs, without prejudice to their seniority or other rights previously enjoyed, and make them whole for any loss ofearnings and other benefits suffered because of Respondent's discrimination against them, the com- putation of such money to be in accord with F. W. Woolworth Company, 90 NLRB 289 (1950), with interest thereon at the rate of 6 percent per annum as set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). (b) Upon request, recognize and bargain with Service Employees International Union, Local No. 6, AFL-CIO, as the exclusive representative of all employees in the bargaining unit described below, with respect to rates of pay, wages, hours and other terms and conditions of employment and, if an understanding is reached, embody such understand- ing in a written signed agreement. The appropriate bargaining unit is: All janitorial employees employed by Respondent at its Renton Village Cinema, Renton, Washing- ton, but excluding office clerical employees, 380 DECISIONS OF NATIONAL professional employees, guards, supervisors, as defined in the Act and all other employees. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its place of business in Renton, Wash- ington, copies of the attached notice marked "Appen- dix." 13 Copies of said notice, on forms provided by the Regional Director for Region 19, after being duly signed by Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt thereof, and maintained by it for 60 consecu- tive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 19, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 13 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 discharge or otherwise discrimi- nate against our employees for their activities on behalf of Service Employees International Union, Local No. 6, AFL-CIO, or any other labor organization. WE WILL NOT interrogate our employees con- cerning their union activities. WE WILL NOT threaten our employees with loss of employment or restrictive working conditions in reprisal for union activity or membership. WE WILL NOT announce wage increases or other benefits to employees in order to influence their desires or decisions with respect to International Alliance of Theatrical Stage Employees and Moving Picture Operators of the United States and Canada, AFL-CIO-CLC, or any other labor organization. LABOR RELATIONS BOARD WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed in Section 7 of the Act. WE WILL offer Charles Schumacher, Michael Thompson, and Lonnie Trudeau immediate and full reinstatement to their respective former posi- tions or, if those positions no longer exist, to substantially equivalent positions, without preju- dice to their seniority or other rights and privileg- es, and WE WILL make them whole for any loss of earnings or other benefits suffered because of the discrimination against them, with interest at the rate of 6 percent per annum. WE WILL, upon request, recognize and bargain collectively with Service Employees International Union, Local No. 6, AFL-CIO, as the exclusive representative of all employees in the bargaining unit described below with respect to rates of pay, wages, hours of employment, and other conditions of employment and, if an understanding is reached, embody such understanding in a written signed agreement. The appropriate bargaining unit is: All janitorial employees employed by Respondent at its Renton Village Cinema, Renton, Washing- ton, but excluding office clerical employees, professional employees, guards, supervisors as defined in the Act and all other employees. GENERAL CINEMA CORP. D/B/A RENTON VILLAGE CINEMA DECISION STATEMENT OF THE CASE HENRY S. SAHM, Administrative Law Judge: This pro- ceeding was heard at Seattle, Washington, on March 18, 1976, pursuant to charges filed on November 21, 1975, and January 21, 1976, and a consolidated complaint issued February 23, 1976.1 The complaint presents questions whether Respondent, called both Renton Village Theatre and General Cinema Corporation, violated Section 8(aX3) of the National Labor Relations Act when it discharged three janitorial employees because of their membership in and activity on behalf of Service Employees International Union, Local No. 6, AFL-CIO, referred to hereafter as Local 6, one of the two Charging Party Unions in this consolidated proceeding. The other union, International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada , AFL-CIO-CLC, called hereafter IATSE and the Union, filed a charge alleging I All dates refer to the year 1975 unless otherwise indicated. RENTON VILLAGE CINEMA 381 violations of Section 8(a)(1) on behalf of those theater personnel employed in Respondent's Renton Village Cine- ma, as cashiers, candy or concession employees, ushers, and doormen. These employees, hereafter grouped under the collective name "front employees ," worked at the same theater as did the janitors, but during the hours the movies were being shown, whereas the janitors cleaned the theater after the last performance. It is alleged that, at a time when Respondent knew its "front employees" had made arrangements for a union meeting, at 10 a.m. on July 15, Respondent scheduled a staff meeting of the front employees for the same date and time, which, of course, was not attended by the janitors. At this meeting, states the General Counsel, the front employ- ees were granted pay increases and threatened with more restrictive working conditions and loss of employment, including lessened opportunity for future merit wage increases should the employees elect to be represented by IATSE. Upon the entire record, including observation of the demeanor of the witnesses, and after due consideration of the briefs filed by both counsel on April 26, there are hereby made the following: FINDINGS OF FACT Jurisdiction and the Labor Organizations Involved The Board on December 20, 1974 , found that Respon- dent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. General Cinema Corporation, 214 NLRB 1074 (1974). Both of the above-named Unions are labor organizations within the meaning of Section 2(5) of the Act. I. INTRODUCTION Michael Thompson, Charles Schumacher, and Lonnie Trudeau were employed as janitors cleaning Respondent's Renton Village movie theater at the end of each day's performance. They all signed Service Employees Local 6 union authorization cards on November 12.2 By identical letters dated November 15, and signed by R. W. Osgood, manager of Respondent's theater and received by said employees on November 17, they were notified that, effective November 17, they were being discharged "due to unsatisfactory job performance . . . determined by a theater inspection, November 5, by Mr. Werthman, region- al director and Mr. Painter, west coast division manager." The dismissal letter continues as follows : "Mr. Osgood, manager and Miss Pittman, assistant manager, inspected the theater November 15, 1975, no improvement was shown. Therefore our company has determined it is in the best interests of General Cinema Corporation to make other arrangements at this time." On November 20, Respondent employed American Building Maintenance Company to perform the same duties of cleaning the Renton Village movie theater, which heretofore had been performed by the three alleged discriminatees. This company was employed to clean the theater for 12 days until December 2, when Respondent dispensed with its services. The company was replaced by three new janitors. Later, after the issuance of the com- plaint, Respondent rehired the three alleged discriminatees to perform the same duties they had as janitors . A seventh janitor was employed at about the same time, thus keeping the three dischargees in the minority. II. THE ALLEGED 8(A)(3) VIOLATIONS A. The Testimony Charles Schumacher was employed by Respondent as a janitor from October 13 until November 17, when he was discharged allegedly for the inferior quality of his work. On November 12, 1975, he signed a union designation card. The following day, he testified , he had a conversation with Bonnie Pittman, assistant manager of the theater and a supervisor within the meaning of Section 2(11) of the Act. At that time, according to Schumacher , he told her "that we planned on going Union" and, when he mentioned the names of the two union officials with whom he was dealing, Pittman stated that she knew one of them. On cross-examination, it was elicited that management had notified the janitors on approximately November 1 that the cleanliness of the theater was to be inspected on or about November 5 by Respondent's upper echelon offi- cials. Schumacher also testified that he had never been reprimanded by Osgood, the manager, nor any other superior for the quality of his work. He emphasized on cross-examination that, after the November 5 inspection of the theater's cleanliness, neither Manager Osgood nor his assistant, Pittman, complained about Schumacher's work. In fact, testified Schumacher, none of his supervisors ever advised him about the results of the November 5 inspec- tion. In his words : "We all tried to fmd out and we weren't told nothing," except that Pittman upon being asked by him replied that "she had heard nothing." Michael Thompson, another dischargee, who corrobo- rated Schumacher's testimony, denied that any superior ever complained about his work. Moreover, continued Thompson, he was unable to ascertain from Pittman the results of the November 5 inspection by Respondent's officials. Thompson related on cross-examination that when he was fired he asked Osgood the reason and the latter told him "that American Building Maintenance was coming in; we weren't doing a satisfactoryjob. " Lonnie Trudeau, the third alleged discriminatee, corrob- orated the other two janitors' testimony that he had never been reprimanded for unsatisfactory work performance prior to his discharge, adding that the theater at the time of the November 5 inspection was "in good shape ." On cross- examination, Trudeau testified that when he was terminat- ed he inquired of Osgood the reason why he was discharged and the latter answered: "That it came from above him, that American Building Maintenance was coming in, and it [our work ] was not up to snuff." R. W. Osgood, manager of the theater, testified on direct examination that between October 1 and November 5, 1975, the date of the inspection he had on several 2 There were a total of four janitors employed by Respondent at its Renton Village theater. The fourth, who also signed a union card, was terminated for good cause on November 13. 382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD occasions noted cleanliness deficiencies in the janitorial staffs work. Osgood was on vacation from November 3 through 9, and when he left he knew that an inspection was to be made of the theater by his superiors on November 5. It strains one's credulity to believe that he had been dissatisfied with the three janitors' work heretofore. Other- wise, it is not too unreasonable to assume that he would not have gone on vacation 2 days before the inspection if he was truly dissatisfied with the quality of their work. The plain implication of his departing, it is submitted, is that he went on vacation optimistically reposing such faith in the three janitors' ability that he harbored no qualms about their passing the hierarchy's inspection with flying colors. Thus, his assertion is not credited that the three janitors' work was so unsatisfactory that he had been required to do corrective work in the restrooms and to utilize staff members other than the three janitors to maintain the cleanliness of the theater in a satisfactory condition. Painter, division manager, testified on direct examination that the inspection which was ordered by the Boston home office was conducted by Werthman, who is Painter's direct supervisor. Werthman did not testify. Painter, who accom- panied Werthman on the "walk-through" inspection of the theater on November 5, testified he had noticed that the theater was "below what I would look for in a normal or average theater." Painter continued that he "honestly felt that it should have been done in a better manner." Basically, continued Painter, the normal cleaning items had not been properly performed: "The rear seat backs, made of white metal, had not properly been wiped down, spills had not been mopped, and the floors had not been poli to remove gum, candy and other sticky items ." After e inspection, Werthman, according to Painter, communicat- ed to him that the theater "needed work." Nevertheless, all these alleged inadequacies were not revealed to the dischar- gees prior to their November 15 termination. It is incredible that, under the circumstances here disclosed, a word of caution, a warning, would not have been given to them. Osgood, who returned from vacation on November 10, testified that on November 13 he spoke briefly with Thompson, one of the discharged janitors. Thursday, stated Osgood, was payday at the theater and he recalled meeting Thompson behind the candy counter when Thompson came in for his paycheck. Osgood's testimony continued that he warned Thompson "that the theater was not in shape and that you're going to get on the ball or we're going to have to make other arrangements." On November 14, when Painter, the district manager, phoned Osgood, the latter told Painter during the course of their talk that "there had been rumors of union activity by Local 6." The conversation concluded when Painter stated to Osgood "that if termination of the janitorial employees was the only solution, then this is where we go, and that the 3 Santa Fe Drilling Company v NLR.B., 416 F.2d 725, 729 (C.A. 9, 1969), N.LR B v Miller Redwood Company, 407 F.2d 1366, 1369 (C.A. 9, 1969), Shattuck Denn Mining Corporation v. N L R B., 362 F.2d 466, 470 (CA. 9,1966) 4 N L R B v Condensor Corporation of America; 128 F.2d 67, 75 (C.A 3, 1942) 5 Sante Fe Drilling Co v N L R B, supra at 729; N L R B v International Union of Operating Engineers, Hoisting and Portable Local No 101 [Sub Grade Engineering Co 1 216 F 2d 161, 164 (C A 8, 1954) letters would be written and they would be terminated as of [November] the seventeenth." B. Discussion and Conclusions Respondent maintains that Schumacher, Thompson, and Trudeau were discharged for cause. The General Counsel, however, contends that Respondent's assigned reasons for terminating them were pretextual and that it discharged them because of their union activities and in order to rid itself of these three union adherents. The issue, therefore, is one of fact: what was the actual motive for the discharges? 3 Was there considerably more than a temporal coincidental connection between the three employees' union activities and their summary and precipitate discharge shortly thereafter?4 Because the issue is one of subjective intent, direct evidence is rarely obtainable and consequently the trier of the facts "may rely on circumstantial as well as direct evidence ...." 5 Moreover, a discharge is unlawful under Section 8(a)(3) of the Act even if the employees' union sympathies or activities, which are protected, are only partially responsible for the employees' actions.6 The test is whether the reason ascribed for the termination of these employees, their protected union activities, is the moving cause behind their discharges. In other words, would they have been discharged but for their protected union activities? The law is well settled that an employee does not forfeit his statutory rights when in good faith he seeks to bring a union into his employer's place of business, even if his conduct may fairly be regarded with a dim view by his employer. That protection is lost only when such conduct becomes malicious or unreasonably disruptive of order and discipline.? Here, the three alleged discriminatees, the record clearly reveals, were suddenly, summarily, and peremptorily dis- charged without any prior warning. Moreover, based upon the facts detailed above, it is found that all three were satisfactory workers. They were admittedly capable em- ployees whose competency was irrefutably recognized by the cogent fact that Respondent rehired them not long after it terminated its contract with the American Building Maintenance Company which had taken over the cleaning of the theater on December 2, after the three employees were notified of their discharges by Respondent on Novem- ber 17, effective as of November 15. Apparently, Respon- dent became disenchanted with them and discharged them only when they became interested in being represented by the Union herein. "Such action on the part of an employer is not natural." Under these circumstances, it is difficult to justify Respondent's discharges of them especially for the vaguely unspecific and trivial reasons ascribed by Respon- dent for doing so.8 The record does not warrant the finding that Respondent discharged them for good cause but rather, on the contrary, because of their union activities 6 N.L.R B v Ayer Lar Sanitarium, 436 F.2d 45, 50 (CA. 9, 1970); N.LR.B. v. Whitfield Pickle Company, 374 F.2d 576, 582 (C.A. 5, 1967). 1 See Hagopian & Sons, Inc. v. N.LR B., 395 F.2d 947, 952-953 (C.A. 6, 1968). 8 E Anthony & Sons, Inc. v. N.LR B., 163 F.2d 22, 26-27 (C.A.D C., 1947) RENTON VILLAGE CINEMA 383 which, in turn, was motivated by a desire to rid itself of this union nucleus of three employees. It is undisputed that their union activities were known by Respondent prior to the date of their discharge which further corroborates the conclusion found above, that they were discharged for proscribed reasons. Respondent's opposition to their "concerted activity for the purpose of ... mutual aid or protection .... " violated the essence of Section 7 which guarantees employees the right to engage in such protected activities. Accordingly, when Respondent discharged them for such protected activities, prima facie, this was an unfair labor practice. Once the General Counsel has established a prima facie case of unfair labor practices, the burden of going forward with evidence sufficient to rebut the General Counsel's prima facie case and to prove its affirmative defense that the three employees' discharges were for just cause falls upon Respondent .9 In other words, an employer, when he denies the discharge and avers that the employee was discharged because of unsatisfactory work performance is pleading an affirmative defense, the legal incidence of which is that the burden of going forward with the evidence to prove his contention shifts to him.10 Based upon the record in this proceeding, Respondent has not adduced sufficient evidence to rebut the General Counsel's prima facie evidence that the three alleged discriminatees' terminations were discriminatorily motiva- ted for the reasons explicated above and below. It is found, accordingly, that the evidence adduced by Respondent to prove its affirmative defense was not only lacking, but per contra, reveals that Respondent's reason for discharging the three janitors was a sham and clearly pretextual. This is conclusively proven by Respondent's rehiring them a few months later after rescinding its agreement with American Building Maintenance Company which reveals that they were discharged not for the poor quality of their work, but for engaging in protected union activities. Union activity, however, need not be the only reason for a discharge, but it is sufficient as a matter of law if it is a substantial or motivating reason, despite the fact that other reasons may exist.11 Furthermore, Respondent's attempts to establish lawful grounds for discharging them are patently pretextual in that the reasons of complaint assigned by Painter and Osgood for their termination were generalized, broad, petty, specious derelictions which were not only proved, but also were so lacking in specificity that they were difficult to impugn. For these reasons, Respondent's defenses alleging the three dischargees' inadequacies are not credited. Final- ly, it is believed that all of these alleged reasons for terminating Schumacher, Thompson, and Trudeau were afterthoughts raised for the first time at the hearing.12 Finally, the arguments made in its brief and the testimo- ny adduced by Respondent do not persuasively advance its claim of legitimate motivation, and the failure of Respon- dent's explanations to withstand scrutiny only serves to buttress the inference of interdicted motivation culminating in a finding of discrimination. It is axiomatic that, when a 9 J. M Lassing, et al. d/b/a Consumers Gasoline Stations, 126 NLRB 1041, 1042, fn. 6 (1960); Brady Aviation Corporation v N L R.B., 224 F 2d 23 (C.A. 5, 1955). 10 Cf. N L R.B. v. Fleetwood Trailer, Co, Inc, 389 U.S 375,378 (1967), N L R B. v. Great Dane Trailers, Inc., 388 U.S. 26, 34 (1967). 11 N L.R B v. Whitin Machine Works; 204 F.2d 883 (C.A. 1, 1953), enfg 100 NLRB 279 (1952). reason given for a discharge is false, the inference may be drawn that there is another reason.13 In this regard, Osgood's testimony is not credited that he posted notices warning the janitors of their unsatisfactory derelictions of duty when it is considered that he was unable to delineate a single specific incident. Moreover, Painter's admission that he inspected the theater at intervals of 6-8 weeks is belied by the record which is devoid of any plausible indication that the theater was unclean prior to November 5. Such unconvincing testimony leads to the conclusion that Respondent's dissatisfaction with these three employees were more fictitious than real and played no part in the decision to discharge them. On the basis of the foregoing and the entire record, as well as the suggestive indicia inhering in the circumstances surrounding the discriminatees' terminations and the weak- nesses of Respondent's alleged justifications therefor, that they were discharged for unsatisfactory work performance, it is found that their union activities were the real reason, and, therefore, discrimination existed in regard to their hire and tenure of employment, thereby discouraging member- ship in the Union in violation of Section 8(a)(3) of the Act. C. The Gissel Aspect The General Counsel contends that the Supreme Court case of N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969), is controlling here and that an order should issue in accordance with Steel-Fab, Inc., 212 NLRB 363 (1974). He argues that the basic law with respect to the propriety of bargaining orders as a remedy for egregious unfair labor practices which effectively destroy the possibility of a fair election, or make it more likely that the uncoerced wishes of employees can best be determined by reliance on union designation cards, signed prior to the commission of those unfair labor practices, was enunciated by the Supreme Court in Gissel Packing Co., Inc., supra. The three unfair labor practice areas, he maintains, which traditionally have led to bargaining orders under the teachings of Gissel, have been pay increases, threats of plant closure, and, most particularly, discriminatory discharges of union supporters. In almost every case in which even one 8(a)(3) discharge has been found to have occurred in the context of an organizing effort, the cases hold, contends the General Counsel's representative, that a bargaining order is a remedy appropriate in the circumstances here revealed. Inasmuch as in the case at bar the janitors were discharged en masse and without warning, and then were rehired only after the complaint issued and the maintenance company was hired for 12 days, asserts the General Counsel, they at that time were kept in a minority amongst an opportunely enlarged janitorial staff of seven. A free and fair election under the present circumstances, concludes the General Counsel's representative, would be an impossibility, and therefore a bargaining order is warranted. Respondent's 12 Thomas W Dant, et al., d/b/a Dant & Russell, Ltd, 92 NLRB 307, 320 (1950); Intertown Corporation (Michigan), 90 NLRB 1145, 1188 (1950); N.L R.B. v. Somerset Shoe Company, 111 F.2d 681 (C.A 1, 1940). 13 NL.R.B. v C W. Radcliffe, et al., d/b/a Homedale Tractor & Equipment Company, 211 F.2d 309,314 (C.A. 9, 1954). 384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD counsel did not address himself in his brief to this phase or facet of the proceeding. Having considered all these contentions of the General Counsel's representative, as well as the attendant circum- stances detailed above, it is concluded and found, based upon the applicable law as promulgated by the Supreme Court in Gissel, supra, that a bargaining order is warranted to remedy the unfair labor practices committed by Respon- dent in this proceeding. For the foregoing reasons delin- eated above, it is found that the factual situation here reveals "egregious" unfair labor practices of a lingering nature which prevent the possibility of a fair election even though the discriminatees are presently employed by Respondent, but cunningly kept nevertheless in an adroitly planned minority of three in a seven-man janitorial unit, strategically enlarged subsequent to the discriminatees' expediently well-timed reemployment. As soon as Respondent was confronted with the knowl- edge that the three janitors had signed union designation cards, it promptly and opportunely fired all three in order to eliminate the Union as their bargaining representative. It accomplished thisfait accompli by subcontracting the work performed by the discriminatees to the American Building Maintenance Company and then terminating the successor maintenance company's services 12 days later, which was then sequentially followed by the three discharged janitors being rehired thereafter at discreetly spaced intervals. A free and fair election is unlikely in the circumstances of this case. Equitable principles would seem to dictate that a bargaining order is warranted to remedy the serious illegal acts committed by Respondent which are not only per-: - sive but deviously contrived to defeat the ends of justice, as witness Respondent's cleverly increasing the unit to seven janitors and thus rendering them impuissant in order to cause the three discriminatees to remain a feckless minori- ty. Moreover, to ascribe validity to Respondent's bare denial in its answer to the complaint, with no reason therefor as to the propriety of the janitorial unit described in the complaint, is to favor form over substance. Furthermore, it was stipulated that the janitors work as a unit separate from the "front employees." Accordingly, it is found that an appropriate unit is one comprised exclusively of all janitori- al employees, as described in the complaint. A more serious matter in this proceeding involves the lack of a bargaining demand on the part of the Union. However, in addition to Respondent's mala fides, detailed above, it is not too unreasonable to assume that the probative significance, as well as legal incidence, in the circumstances here present, of Respondent's engaging for 12 days the services of the American Building Maintenance Company,14 then terminating it, followed by hiring four new janitors and then rehiring the three discriminatees, was an ostensibly preconceived plan to abort unionism in its theater by resorting to this convoluted and perfidious scheme. This failure of the Union to request recognition or bargaining of Respondent under the circumstances here present, has been answered by Eagle Material Handling of 14 The San Francisco Chronicle of September 11, 1976, at p. 46, states that this corporation "had record sales and profits . . for the first nine New Jersey, 224 NLRB 1529 (1976), where the Board stated: The Administrative Law Judge also found that Respondent violated Section 8(a)(5) of the Act by failing and refusing to recognize and bargain with the Union as of January 20. In so doing, he construed the Union's petition, which was filed on January 13, as a demand for recognition upon Respondent. Contrary to the Administrative Law Judge, we do not so construe the petition. The Board has long held that the mere filing of a representation petition does not constitute a request for recognition or bargaining such as to make an employer's failure to bargain, without more, a violation of Section 8(a)(5) of the Act. In the instant case, the Union made no demand upon Respondent for recognition or bargaining and, accordingly, we find that the evidence fails to establish that Respondent violated Section 8(a)(5) of the Act. However, the absence of an 8(a)(5) finding does not affect the propriety of the bargaining order herein since that order is not predicated on any such finding, but rather is required to remedy Respondent's extensive unfair labor practices, which precluded a fair election from being held on February 6 and have made unlikely the holding of a fair election in the near future, even after application of the Board's traditional remedies therefor. [Citations omitted] In Ludwig Fish & Produce, Inc., 220 NLRB 1086 (1975), the Administrative Law Judge recommended that a bar- gaining order was not necessary because the Union made no demand for bargaining. The Board disagreed, stating that "a bargaining order is necessary." The Board's rationale follows: "There is nothing in Gissel which conditions the bargaining order remedy upon a demand for bargaining. Rather, as the Supreme Court stated, the test is whether we may reasonably conclude the Respondent's unfair labor practices have rendered `a fair and reliable election' impossible. In Gissel, the Court upheld the Board's bargaining remedy where the only unfair labor practice shown was the threat of plant closure." Here, Respondent, apparently when told by Pittman, the assistant manager, on November 13 that Schumacher had said to her that the janitorial staff "were going Union," caused the theater manager to react with lightning-like speed. He wrote letters of dismissal on November 15 to each of the janitors which were received by them on November 17, stating they were fired as of November 15. See Section A, supra. Consequently, at one fell swoop and with might and main, the appropriate unit was abolished and the small nucleus of three union adherents eliminated, and so, in this fashion, Respondent attained its manifested objective of ridding itself of the Service Employees Union, the Charging Party herein. It should be mentioned to obviate the question of majority status, although the unit comprised only the three janitors, that the Supreme Court in Gissel observed that "in `exceptional' cases marked by `outrageous' and `pervasive' months [of 1976] totalling] 107.1 million and earnings were 2.5 million 11 RENTON VILLAGE CINEMA 385 unfair labor practices" a bargaining order might be the only "effective remedy," even "without need of inquiry into majority status" of the union. N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575, 613-614 (1969). This proceeding, it is submitted, is such a case in which Respondent's compre- hensively effective retaliation makes a "fair and reliable election" impossible . Id. at 614; Crockett-Bradley Inc., 212 NLRB 435 (1974). III. ALLEGED VIOLATIONS OF SECTION 8(A)(1) Monica Moore, a cashier at Respondent's theater, testified that the so-called "front employees" (as distin- guished from the janitors), who comprised the cashiers, refreshments employees, ushers, and doormen, were dissat- isfied with the wages Respondent was paying them. At the request of her coworkers, Moore telephoned a union official of the International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators, herein IATSE, in late October or early November and, in the course of explaining her reason for calling him with respect to their interest in organizing a union, the union official suggested that the "front employees" should hold a meeting to determine whether they were interested in having IATSE represent them. See "Statement of the Case," supra. Around the beginning of November, it was decided to hold a meeting at one of the employees' homes at 10 a.m. on November 15 to discuss the aforementioned Union. About 2 weeks later, on November 14, Respondent notified the front employees that a staff meeting would be held at the theater at 10 a.m. the following morning, whereupon the said employees had to change their originally scheduled union organizational meeting from 10 a.m. to 9 a.m. in order for them to be able to attend Respondent's staff meeting at the theater at 10 a.m. on the same day. Moore testified that in the year she has worked for Respondent advance notice of staff meetings was given 10 to 14 days before each meeting and this was the first time she was summoned by Respondent to a staff meeting with advance notice of only 1 day. At the 9 a.m. meeting of those interested in a union, held at an employee's home, 12 to 15 of those 20 employees present voted "to join the Union." They then proceeded to the theater to attend Respondent's 10 a.m. staff meeting. At the staff meeting, the first matter on the agenda was Manager Osgood's announcement of the names of the movies scheduled to be shown at the theater in coming weeks. Also present for management were Pittman, Long, Holman, and Kulhham, all assistant managers of General Cinema Corporation theaters in the Seattle area. Moore's version of what next occurred reads as follows: Then Osgood told us that we were to receive a wage increase "because he had felt-he knew-that we were getting low wages, and then Bill Dugovich [an employ- ee ] brought up the fact that we were looking into joining a union . . . that is going to join a union-we were looking into it, and he [Osgood] wanted to know if we had decided to join and we said no, that we were still looking into it and he wanted to know if we had decided to join, and we said no, that we were still looking into it more. [Osgood] wanted to know if we wanted to take a vote to decide then to join a union. So he and all the other manager assistants left the room and we didn't take a vote; we just decided to look into it further, and that's what we told him when he came back [into the meeting]. We asked Osgood and Pittman more about the union and he said he shouldn't go into it, but we asked him We asked him questions about the union and he told us what he thought he could . . . . He didn't want to go into the hassle of it. He said that going into the union, we'd probably get more hours and there'd be less people than he needs. So I guess we got the impression that there'd be less people that they needed and we'd be laid off; and he told us that there'd be less freedom; when we asked for days off, that we'd be less likely to get them. . . . He just said that he couldn't tell us how he felt about it, that we probably knew how he did feel about it. . . . He wanted us to remember that he had helped save our jobs when they were going to lay off those of us that were under seventeen because of the "R rated shows" that they showed there. They show "R" rated movies where I work, and those who are under seventeen were going to be laid off. On cross-examination, it was elicited from Moore that the staff was notified for the first time on the afternoon of November 14 that there would be a meeting of the front employees at 10 a.m. the next day. Moore also testified that it was not unusual to hold these staff meetings once a month, but it was her belief they usually were scheduled for 11 a.m. Moore testified that she heard from Osgood for the first time at this November 15 employees' meeting that the minimum wage law of the State of Washington had been amended so as to provide increased wages for them. Osgood stated, Moore testified, that "it'd be a substantial raise . . . from $1.75 to $1.79" an hour. Moore acknowledged on her cross-examination that it was Dugovich, an employee, who first raised the question of a union, when he informed Osgood that the front employ- ees were considering "joining the Union." It was then, continued Moore, that Osgood, in reply to Dugovich's statement, stated that he had heard "rumors" about union interest among the employees. Moore also testified on cross-examination that, when the employees asked "quite a few" questions from the floor, Osgood demurred to answering their questions, protesting "that he shouldn't" but, nevertheless, the employees insisted that they wanted him to talk about it. Moore continued that Osgood told them that if a union should come in there might be possibly more hours of work and less employees to do the work, which could result in a reduction in the present number of front employees. When counsel for Respondent asked if Osgood said "for a fact that this would happen," Moore answered in the affirma- tive, continuing that Osgood told them he based this opinion on his experience of what occurs with the advent of a union which usually results in consequent wage increases which, in turn, requires management to reduce the number of its employees. Moore testified that Osgood told them "that we'd be able to work more hours and there wouldn't be as much staff," but that he did not state he would fire 386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD any employees if they selected a union to represent them. He said, explained Moore, that "these actions may follow" if the employees should join the Union. Sharon Watson, who is presently employed by Respon- dent as a cashier, corroborated Moore's testimony, except she denied that the November 15 staff meeting at the theater was a regularly scheduled monthly meeting. She also testified that the meeting of the employees to discuss the Union was held at her home and that she informed Debbie Young, "an assistant manager ... a couple of days before the meeting," that the front employees were going to meet at her home to consider joining a union. According to Watson, she told Young, who is acknowledged to be a supervisor, "that we tried to get the union representative, but that he couldn't come for some reason ," whereupon Young suggested, according to Watson, "it might be good if we invited Dave Ewing," manager of Respondent's Over- lake theater, whose employees were represented by a union, in order to obtain Ewing's views. Watson invited Ewing to attend the employees' 9 a.m. November 15 meeting at her home, but he did not attend . Watson described the result of the meeting at her home as a decision of the employees "to look into it more." On cross-examination, Watson testified that the employ- ees "decided to look into the matter of unionization further" although they failed to follow through "because after the [November 15 ] meeting, a number of the employ- ees didn't want to go union anymore ." Watson added that at the present time she "hadn't decided yet" and that probably is why she has not pursued the Union further. Watson also testified that at the staff meeting on November 15, when Dugovich mentioned to Osgood that ,.we were thinking about going union," Osgood then asked for questions from the floor. It was then, continued Watson, that "Osgood said he shouldn't tell us about the Union .. . but we told him that we wouldn't mind hearing about it, and he told us that some of the people that hadn't been there long might get laid off, we'd get more hours, and we wouldn't have as much freedom with the days off that we wanted ... we wouldn't get merit raises if the Union came in." Watson further testified that Osgood told the assembled employees that they were being granted a "pay increase" because they "deserved it." When asked on direct examina- tion if Osgood made any mention that the wage increase was occasioned by the state law raising the former minimum rate, Watson answered in the negative. She also testified that Osgood told the employees that if they selected a union there "might" be less employees working at Respondent's Renton Village theater. Watson concluded her direct examination by stating that she received a 4-cent- an-hour raise from $ 1.85 to $ 1.89. It was stipulated that effective September 1, 1975, the State of Washington increased its minimum hourly wage law for employees 18 years of age and above, from $2 per hour to $2.10. Those under 18 years of age had their hourly wage rate increased from $1 .75 to $1.79. On cross-examination, Watson amplified her direct testimony with respect to her conversation with Debbie Long, an assistant manager . She testified that she told Long that some of the employees were then looking into the possibilities of a union and that Long suggested they should obtain the views of Dave Ewing, who was manager of one of Respondent's movie theaters which was unionized. Long, according to Watson, volunteered to request Ewing to talk to them as "he would know more about the Union." However, Watson continued, Long "didn't say anything one way or the other about the Union itself." Watson concluded her cross-examination by quoting Osgood as saying it was "probable" that the employees would work longer hours than presently if they were to select a union as their representative and that this belief was based on his experience with unions so that it was likely the staff "might" be cut back, but, continued Watson, Osgood did not threaten that anybody would be terminated. On her cross-examination, Watson also stated that it was Osgood's practice in the past to accommodate the employ- ees when they requested time off from work and that he told those at the staff meeting "there wouldn't be as much freedom for days off" with the advent of a union as there was the "possibility that the staff would have to be reduced." Watson concluded by testifying that Osgood also "said there wouldn't be any merit raises," but she admitted in the words of counsel for Respondent that Osgood did not "threaten to take any direct action." Osgood testified on direct examination that he learned from Painter, the district manager, on November 14 that the employees' wages were to be increased in compliance with the minimum pay rates provided for in the recently enacted amendment to the Washington state minimum wage law. With respect to the November 15 staff meeting, Osgood's version is that he announced to the assembled employees that they were being granted pay increases in accordance with the State's new minimum wage law. The essence of Osgood's testimony as to what transpired at this meeting follows: After the wage announcement , Osgood asked for ques- tions from the employees. Dugovich then rose to his feet and stated that the front employees "were thinking about joining the union . . . I told Mr. Dugovich that it was up to the staff; whatever they wanted to do, they were welcome to do it. [Then ] they [the employees ] asked me for advice about the union, and I told them, I guess, technically or legally, I could not get involved ." Osgood continued he told the front employees that they "may be reduced" if the Union organized the theater personnel but he denied that [he told them ] "anybody would be terminated . . . I said there might be a total elimination of all merit increases." Osgood was then told by the employees present at the meeting that they wanted to discuss certain matters outside his presence whereupon he left . He later returned when they finished their discussion, and the employees, according to Osgood, informed him they had come to the decision that "they wanted to think about joining the union for a while I just said that's fine ... do what you want to do." A. Resolutions of Credibility Those witnesses who testified as to what occurred and what was said at the November 15 staff meeting have been quoted, supra, in haec verba copiously because Respon- dent's counsel based virtually his entire defense with RENTON VILLAGE CINEMA 387 respect to the 8(a)(1) allegations on those witnesses. The same consideration applies, also , with respect to the General Counsel's version with respect to what was said at this same staff meeting of the front employees. In the interests of accuracy, all those witnesses' testimony has been quoted in extenso to avoid the ambiguities and impreciseness created by paraphrasing. In fact, the flavor and nuances of the witnesses who testified with respect to the 8(a)(1) allegations were sometimes colorful , and subject to different impressions and interpretations which are frequently incapable of literal translation or interlineal rewording so that even a metaphrase might be considered imprecise and too loose. After observing the witnesses, analyzing the record as a whole and the inferences to be drawn therefrom, and reconciling where possible the seemingly conflicting evi- dence, I conclude that the generally consistent testimony of the so-called front employees is reliable. Moreover, their testimony logically conformed with the uncontradicted chronological sequence of events and attendant circum- stances in this proceeding. Furthermore, it is believed that their testimony was forthright and true. This conclusion is based on observation of the General Counsel's witnesses with respect to the accuracy of their memories, their comprehension, and their general demeanor on the stand in answering the questions put to them . The impression that they were testifying truthfully became a conviction when their versions were found, in the main, to be consistent and logical and not substantially shaken by able counsel for Respondent who thoroughly cross-examined them. Anoth- er practical consideration which cannot be overlooked in resolving the credibility issue both with respect to the janitors, who are presently employed by Respondent, as well as the front employees who testified, is the cogent fact that they were all still in the employ of Respondent at the time they testified. As such, they depended on their jobs for their livelihood and they understood that after testifying they would continue in the employment of Respondent. This practical consideration, coupled with the normal workings of human nature, has led the trier of these facts to place considerable credence upon their testimony, when it is considered that both the janitors and front employees corroborated each other's versions of what transpired. B. Discussion and Conclusions The consolidated complaint alleges that Respondent violated Section 8(a)(1) of the Act when it announced and granted pay increases. It should be borne in mind that this was not a conventional voluntary pay increase of the Employer, but rather it was an announcement at the November 15 staff meeting by Respondent that the front employees' pay was being raised in accordance with the mandatory provisions of the recently amended Washington state minimum wage law of September 1, 1975. This was not, therefore, as in the usual orthodox sense of a pay increase, a voluntary act on the part of an employer, but rather one required by the law of the State of Washington. It was not intended "to interfere with, restrain, or coerce" 15 Time-O-Matic, Inc v. N.LR B, 264 F.2d 96, 99 (C.A. 7, 1959); Neco Electrical Products Corporation, 124 NLRB 481 , 482 (1959), 289 F.2d 757 (C.A.D.C., 1960). employees in the exercise of the rights guaranteed in Section 7 within the meaning of Section 8(a)(1) ofthe Act. Accordingly, it will be recommended that the allegation of the complaint be dismissed which alleges this pay increase was a violation of Section 8(axl). It is also alleged that Section 8(a)(l) was violated when Osgood threatened employees with more restrictive work- ing conditions and loss of employment, as well as the opportunity to receive merit wage increases in the future should they choose to be represented by the Union. In determining whether an employer's conduct amounts to interference, restraint, or coercion within the meaning of Section 8(a)(l), the test is not the employer's intent or motive, but whether the conduct is reasonably calculated or tends to interfere with the free exercise of the rights guaranteed by the Act.15 It is not required that each item of Respondent's conduct be considered separately and apart from all others, but consideration must be given to all conduct as a whole, including not only the alleged 8(a)(1) unfair labor practices but also the discriminatory discharg- es of the three janitors because of their union activities in violation of Section 8(aX3) of the Act, found above, with a view to drawing inferences reasonably justified by their cumulative probative effect, particularly where, as here, it must be determined if what Osgood supposedly told the front employees at the November 15 staff meeting inter- fered with, restrained, and coerced them in the exercise of the rights guaranteed them by Section 7 of the Act.'6 In applying these principles to the facts in this case, which are detailed above, and based upon the credibility findings made herein, it is concluded and found that by the following conduct, delineated below, Respondent violated Section 8(a)(1) of the Act as it interfered with, restrained, and coerced the employees in their freedom to choose to be represented by the Union or no union. Thus, the employ- ees' choice was interfered with within the meaning of Section 8(a)(l) in the following specified incidents of misconduct: (1) Osgood knew before the November 15 staff meeting that the employees were in contact with a union, so when he inquired of them whether they had decided to support a union he committed an unfair labor practice. (2) When Osgood told the employees that, if they should decide they wanted a union, with the advent of a union there would probably be terminations which might result in those employees who survived the reduction in force being required to work more hours. (3) When Osgood stated that if they elected to have a union there would be "less freedom" for the employees, meaning less time off, this was an unmistakable reference to them not being granted as many privileges as they now had, which is a violation of Section 8(a)(1) in that it would not only result in a change in their existing working conditions but also was a threat to them in the event of unionization. THE REMEDY It having been found that Respondent engaged in unfair labor practices in violation of Section 8(aXl) and (3) of the 16 NLRB. v C W. Radcliffe, et a!., d/b/a Homedale Tractor & Equipment Co., 211 F.2d 309, 313 (C A. 9, 1954), cert. denied 348 U.S. 833; Popeil Brothers, Inc v. N.LR.B., 216 F.2d 66 (C.A. 7, 1954). 388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Act, it will be recommended that Respondent cease and desist therefrom and take certain affirmative action de- signed to effectuate the policies of the Act. It will be recommended, inasmuch as the three discriminatees have returned to their former jobs, that Respondent shall cease and desist in the future in discouraging membership in Service Employees International Union, Local No. 6, AFL-CIO, or any other labor organization, by unlawfully discriminating against the above-named discriminatees in this proceeding or any other employees of Respondent in regard to terms or conditions of employment . Respondent shall also make Charles Schumacher, Michael Thompson, and Lonnie Trudeau whole for any loss of earnings they may have suffered by reason of the discrimination against them, by payment to each of a sum of money equal to that which they would have earned from the date of their discharges to the date of their return to work, consistent with Board policy set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest on backpay to be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Relying upon the Supreme Court's statement in N.L.R.B. v. Gissel Packing Co. Inc., 395 U.S. 575, 614 (1969), that the Board has long had a policy of issuing a bargaining order, in the absence of an 8(aX5) violation, or, more recently, even in the case of no bargaining demand or a union's lack of majority status (not present here), when that was the only available effective remedy for substantial unfair labor practices, it will be recommended accordingly that Respon- dent be ordered to bargain with the Union inasmuch as that is the only available and effective remedy for the substan- tial and pervasive unfair labor practices committed by Respondent. The Board, by a long line of cases since Gissel, has sought through an evolutionary process to adapt the Act to changing patterns of industrial life, having as its lodestone 17 N L.R.B. v. Hymie Schwartz, d/b/a Lion Brand Manufacturing Compa- ny, 146 F.2d 773, 774 (C.A. 5, 1945). Brown v. National Union of Marine Cooks and Stewards, 104 F 2d Sup. 685, 690 (1951). S. Rept. 105, 80th Cong., 1st Sess. 50, where it was stated : "We believe that the freedom of the that the Act was enacted for the prime purpose of protecting the employees .17 If the rights of employees are being disregarded, it is important that those rights be restored by affirmative remedial action and the cause therefor eradicated. Section 10(c) of the Act accords the Board power to take affirmative action to effectuate the policies of the Act. And one of these policies is to see that the rights of employees are not infringed upon by employ- ers, by unions, or by both. "The National Labor Relations Board is not just an umpire to referee a game between an employer and a union . It is also a guardian of individual employees. Their voice, though still and small , commands a hearing." Shoreline Enterprises ofAmerica, Inc. v. N.LR.B., 262 F.2d 933, 944 (C.A. 5, 1959). In this proceeding, Respondent had independent knowl- edge of the employees' interest in having a union represent them, so that there is not a semblance of a doubt that it had no good-faith doubt that a majority of the janitors had designated the Union their bargaining representative. This, indeed, is convincing evidence of majority support entitling the Union not only to recognition but also to a bargaining order. Such tangible evidence cannot be ignored. To hold otherwise would be tantamount to condoning Respondent's outrageous scheme to subvert the purposes of the statute and thus, by dilatory tactics and blithely frivolous tergiver- sation, not only to evade its duty to bargain but also to fail to follow the teachings of the Supreme Court as enunciated in Gissel, supra. Considering the circumstances of this case, I am con- vinced that a bargaining order is necessary. Accordingly, it is recommended that an Order issue which will contain a requirement that Respondent bargain with the Union in order to eliminate the pervasive and egregious unfair labor practices committed by it. The janitors'situation requires this. (See sec. C, supra.) [Recommended Order omitted from publication.] individual workman should be protected from duress by the union as well as from duress by the employer." Inland Steel Company v. N.L.R.B, 170 F.2d 247,258 (C.A. 7, 1948).