Unga Painting Corp.

UNGA PAINTING CORP. Unga Painting Corporation and International Brother- hood of Painters and Allied Trades, Local 1791, AFL-CIO, Henry Murata, James H. Miyamoto, Leroy Rosa, Inoke Palepale, and John Badiali. Cases 37-CA-1241, 37-CA-1243, 37-CA-1247, 37-CA-1252, 37-CA-1255, and 37-CA-1258 May 11, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On January 10, 1977, Administrative Law Judge Bernard J. Seff issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief and the General Counsel filed limited exceptions and refiled its posthearing brief in opposition to Respondent's exceptions. 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, find- ings,2 and conclusions of the Administrative Law Judge to the extent consistent herewith and to adopt his recommended Order, as modified. 1. The Administrative Law Judge found, and we agree, that Respondent violated Section 8(a)(l) and (3) of the Act by discharging Frank Silva on April 15, 1976; 3 Leroy Rosa on May 5, 1976; Inoke Palepale on May 10, 1976; Henry Murata on May 19, 1976; and John Badiali on May 19, 1976, for engaging in union activities. We find merit in the General Counsel's exceptions to the Administrative Law Judge's apparent inadvertent error in failing to include in his conclusions of law that Respondent violated Section 8(a)(l) of the Act by interrogating employees about their union activities on or about April 7 and 13 and May 10, 1976, and that Respondent violated Section 8(a)(1) by threatening to terminate employees because of their union activities on or about May 7, 1976. Such findings are I We grant the General Counsel's motion that the Decision of the Administrative Law Judge be corrected at III, A, par. I, to reflect that the collective-bargaining agreement referred to was executed on June 26, 1975, as indicated in G.C. Exh. 3, rather than on June 26, 1976. 2 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 credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dr, 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. Nor do we find merit in Respondent's contention that it was prejudiced by the Administrative Law Judge's denial of its request to sequester the alleged 229 NLRB No. 93 amply supported by the Administrative Law Judge's findings of fact. 2. In his findings of fact the Administrative Law Judge found that "Respondent clearly refused to hire Miyamoto because of his union membership, which is a clear violation of Section 8(a)(3) of the Act." Respondent excepted to this finding. The General Counsel agreed with the finding and took a limited exception to the Administrative Law Judge's appar- ent inadvertent error to include this finding in his conclusions of law, to the inclusion of James H. Miyamoto in paragraph 2(a) of his recommended Order, and to the omission from the recommended Order of appropriate relief for Miyamoto. Directing our attention to the merits of this alleged 8(a)(3) violation, we agree with the Administrative Law Judge that Respondent violated Section 8(a)(3) of the Act by refusing to hire James H. Miyamoto on April 17, 1976. The landmark case of Phelps Dodge Corporation v. N.LR.B., 313 U.S. 177 (1941), clearly established that Section 8(a)(3) extends to applicants for employment. Here, Respondent ran a newspaper ad for a first class painter, which did not specify nonunion help. Miyamoto, a painter for 35 years and a union member, answered with a phone call, was questioned by Respondent's secretary-treasurer about his experience and union affiliation, and was told, "We don't hire no union members." After being rebuffed by a company officer and told that union members are not hired, Miyamoto could hardly be expected to further pursue employment possibilities with Respondent by filling out an application or requesting an interview. We note also that the record is replete with union animus and that refusing to hire union adherents was just one facet of Respondent's pattern of discrimination. THE REMEDY Having found that Respondent violated Section 8(a)(1) of the Act by interrogating employees and applicants about their union activities and by threatening to terminate employees because of their union activities, we shall order that Respondent cease and desist therefrom. discriminatees. It is long established that employees involved in discrimina- tory discharges are entitled to remain in the hearing room. Jaques Power Saw Company, 85 NLRB 440, 443 (1949). Similarly, Respondent's conten- tion that the testimony of Frank Silva was improperly allowed is without merit since Silva is a complainant in Case 37-CA-1241 herein. Id 3 We thus find merit in the General Counsel's exception to the Administrative Law Judge's apparently inadvertent omission in his recommended Order that Respondent offer Frank Silva immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges and make him whole for any earnings he lost, plus interest, as a result of his discharge on April 15, 1976. Accordingly, the recommended Order shall be modified. 567 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Having found that Respondent violated Section 8(a)(3) of the Act by refusing to hire James H. Miyamoto, we shall require Respondent to offer Miyamoto employment and make him whole for any earnings he lost as a result of Respondent's refusal to hire him on April 17, 1976. AMENDED CONCLUSIONS OF LAW Renumber paragraph 4 as paragraph 7 and insert the following new paragraphs: "4. By refusing to hire James H. Miyamoto on April 17, 1976, because of his union membership, Respondent violated Section 8(a)(3) of the Act. "5. By interrogating employees and applicants about their union activities on or about April 7 and 13 and May 10, 1976, Respondent violated Section 8(a)(l) of the Act. "6. By threatening to terminate employees be- cause of their union activities on or about May 7, 1976, Respondent violated Section 8(a)(1) of the Act." ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge as modified below and hereby orders that the Respon- dent, Unga Painting Corporation, Laie, Hawaii, its officers, agents, successors, and assigns, shall take the action set forth in said recommended Order with the following modifications: 1. Substitute the following for paragraphs l(a) and (b): "(a) Discharging employees for engaging in union activities and refusing to hire because of union membership. "(b) Interrogating employees about their union activity and threatening to discharge because of it." 2. Substitute the following for paragraphs 2(a) and (b) and reletter the following paragraphs accordingly: "(a) Offer Henry Murata, Frank Silva, Leroy Rosa, Inoke Palepale, and John Badiali immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges and make them whole for any earnings they lost, plus interest, as a result of their discharges on the dates indicated below. "(b) Offer James H. Miyamoto immediate employ- ment, and make him whole for any earnings he lost, plus interest, as a result of Respondent's refusal to hire him on April 17, 1976." 3. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board, having found after a hearing that we violated Federal law by discharging employees who engage in union activi- ties, has ordered us to post this notice. We hereby notify you that: The National Labor Relations Act gives all employees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through a repre- sentative of their own choosing To act together for collective bargaining or other aid or protection To refrain from any or all of these things. WE WILL NOT discharge or threaten to dis- charge you for engaging in union activities. WE WILL NOT refuse to hire because of union membership. WE WILL NOT interrogate you about your union activities. WE WILL NOT interrogate applicants about their union sympathies. WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of the above rights. WE WILL offer Frank Silva, Leroy Rosa, Inoke Palepale, Henry Murata, and John Badiali imme- diate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and we will make them whole for any earnings they lost, plus interest, as a result of their discharges. WE WILL offer James H. Miyamoto immediate employment, and WE WILL make him whole for any earnings he lost, plus interest, as a result of our refusal to hire him. UNGA PAINTING CORPORATION 568 UNGA PAINTING CORP. DECISION STATEMENT OF THE CASE BERNARD J. SEFF, Administrative Law Judge: This case came on for hearing on November 9 and 11, 1976, in Honolulu, Hawaii. The cases were consolidated and the complaint issued by the Regional Director for Region 20 on June 18, 1976, based on the following: The charge in Case 37-CA-1241 was filed by the Union on April 7, 1976; the charge in Case 37-CA-1243 was filed by Henry Murata on April 15, 1976: the charge in Case 37-CA 1247 was filed by James Miyamoto on May 3; the charge in Case 37 CA-1252 was filed by Leroy Rosa on May 6; the charge in Case 37-CA-1255 was filed by Inoke Palepale on May I I; the charge in Case 37-CA-1258 was filed by John Badiali on May 25. All of the above named were discharged by Unga Painting Corporation, hereinafter known as the Respondent. Respondent admits and I find that it is at all times material herein an employer as defined in Section 2(2) of the Act engaged in commerce and operations affecting commerce as defined in Section 2(6) and (7) of the Act. Respondent admits jurisdictional information and the fact that the Union is a labor organization within the meaning of the Act but denies the commission of any unfair labor practices. Briefs were filed by the General Counsel and by the Respondent which have been carefully considered. Upon the entire record in the case and from my observation of the demeanor of the witnesses, I make the following: FINDINGS OF FACT I. JURISDICTION Respondent is a corporation of Hawaii with offices in Honolulu, Hawaii, and is engaged as a painting contractor in the building and construction industry. During the past calendar year Respondent furnished services valued in excess of $50,000 for agencies of the United States Department of Defense and for the Hawaiian National Guard. Respondent admits and I find that it is engaged in interstate commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Willis Unga has been the president of Respondent and an agent of Respondent acting in its behalf within the meaning of Section 2(13) of the Act, and a supervisor of Respondent within the meaning of Section 2(11) of the Act. Similarly, Lola Unga has been an agent of Respondent acting on its behalf within the meaning of Section 2(13) of the Act. On June 26, 1976, Unga executed a collective- bargaining agreement with the Union, effective from July 1, 1975, through December 31, 1977. Respondent complied with that agreement for a period of time and then on November 19, 1975, repudiated it. Before he repudiated that contract Unga told each of the men that: I am going to withdraw from the Union, and I advise them that if they liked to stay with the company, they are welcome to stay; if they liked to go with the Union, they may do so. Subsequent to the repudiation of the contract, the Union filed suit in the state court for enforcement of the contract, and for other relief. As a result of this litigation Unga considered the Union to be his enemy and so informed Murata, Frank Silva, and Badiali at various times. It is clear from the record that Unga bore great animosity towards the Union. B. The Refusal To Hire James Miyamoto Miyamoto saw an advertisement in the Honolulu newspaper in April 1976 advertising for a first-class painter for Unga Painting Corporation. On or about April 17 he called Respondent and spoke to a woman who identified herself as Lola. She asked him how many years' experience he had and then asked him if he was a member of the Union. When he replied in the affirmative she told him, "We don't hire no union members" and that was the end of the conversation. Miyamoto never did go to work for Respondent. Lola Unga is secretary-treasurer of Respon- dent and is admitted to be an agent of Respondent. The General Counsel points out that her general and vague denial of this conversation cannot be credited in the face of Miyamoto's specific testimony. Lola Unga testified that she had many conversations with job applicants. She admitted that she did not remember what she told each caller and that she specifically did not remember her conversation with Miyamoto. She testified only as to her general practice of informing callers that Respondent was nonunion and taking names and numbers to have her husband return calls. She did admit that she knew that her husband, Respondent's president, was not hiring union men because he was out of the Union. Her testimony indicates that based on her own knowledge of Respon- dent's position it is likely that she would inform callers that Respondent was not hiring union men. By contrast with Miyamoto's clear and forthright testimony it appears certain that she did in fact tell him that Respondent was not hiring union men. I credit Miyamoto. C. The Interrogation and Discharge of Frank Silva After initially refusing to hire Silva and subsequently interrogating him about his contacts with the Union, Unga finally terminated Silva because of his demands that he be paid according to the union contract. Before he applied for a job at Respondent and as a painter, Silva contacted the Union to get a work clearance. He was informed by the Union that Respondent was still "a member of the Union," and that there was litigation in progress but Respondent was still in the Union. He was cleared for work there. Silva understood that the Union considered Respondent to still 569 DECISIONS OF NATIONAL LABOR RELATIONS BOARD be a "member" of the Union or covered by the collective- bargaining agreement referred to supra. Silva testified, and Unga admitted, that on or about April 7, 1976, when Silva was applying for a job, the Respondent asked him if he was a union member. Unga testified that it was his policy to ask job applicants if they belonged to the Union. Initially Unga refused to hire Silva because of his union membership, but the record shows that Silva did start work for Unga a day or two after he was interviewed. On April 7, the Union filed a charge on Silva's behalf alleging that Respondent had refused to hire him in violation of Section 8(a)(3). About a week later, on or about April 13, Unga called Silva at his home to ask if he was going to report to work the next day. During the course of this conversation, Unga asked if Silva had said anything to the Union when he had come down to apply for a job. When Silva replied in the affirmative that he had gotten a work clearance from the Union, Unga asked him if he had said anything else. Silva replied, "No. Why?" And Unga said, "I just hope that you are not a spy for the Union." Silva testified that Unga's conversations with him regarding his union activities finally culminated in a conversation on April 14 in which Unga told Silva that he was laid off. When Silva applied at Respondent he indicated on his application form under wage rate, "union scale." When he spoke to Unga on April 14, Silva asked if he would be paid time and a half for the following day which happened to be a holiday, Good Friday. Unga stated that he did not pay time and a half. Silva responded that it was his understanding that he was to be paid union scale. Unga then stated that: "I don't belong to the Union. I told you that before, the Union is our enemy and I don't have to pay these fringe benefits that you say I have." Silva then asked to be paid showup time and travel time for 3 or 4 days when the men had been rained out. He stated that under union regulations he was entitled to showup and travel time pay and that as a union member he was entitled to that pay. Unga reiterated that he is not a member of the Union and that the Union was his enemy. He told Silva that he was nonunion and if Silva worked for him he would have to work according to his rules and not the union rules. Unga finally told Silva, "If you cannot follow my regulations I cannot have you in my company." Silva asked if he was laid off and Unga replied, "If you can't follow my regulations you are laid off." It is clear Unga laid off Silva because of his association, in Unga's mind, with the Union and because Silva asked that he be paid the union rates under the contract which Unga had repudiated. At this point it is appropriate to make some observations about the credibility of Unga. Unga's testimony with regard to the layoff of Silva demonstrates that he was evasive, contradictory, and not altogether trustworthy. These characterizations of his testimony applied through- out the hearing. For example, when first questioned with regard to Silva's layoff Unga responded, "I really didn't tell him to go. It was his decision that he don't want to work if I don't pay him the union wages." Unga then acknowl- edged that in a sworn affidavit given to an agent of the Board he admitted that "On April 15, 1976, 1 laid off Silva because he came to me and told me I had to pay union rates and follow union rules." Later in his testimony Unga confirmed the substance of that conversation with Silva. Unga then admits, "I may say I lay him off' and finally admits telling Silva, "if you cannot follow my regulations, you are laid off." Such contradictory statements appear throughout Unga's testimony. He did not make a good impression on me by his demeanor while testifying and I therefore do not credit his testimony. On the other hand Silva appeared entirely trustworthy in what he was saying and appeared to be telling the truth. I credit Silva's testimony. D. The Discharge of Leroy Rosa Rosa was hired by Respondent as a painter on or about April 22, 1976. Unga knew Rosa was a union member. On or about May 5 Rosa received his first paycheck. The wage rate reflected on that check was less than the union rate and Rosa began arguing with Unga regarding the wage rate and told him that he was entitled to union scale and the fringe benefits under the union agreement. The conversation ended when Rosa told Unga that he had gotten John Badiali and Inoke Palepale, two other employees, to join the Union. Whereupon Unga immedi- ately left, spoke to Palepale, and then returned to Rosa to tell him that he was laid off. As Rosa was leaving, he testified he heard Unga tell Palepale that if he didn't quit the Union they would be terminated. E. The Interrogation and Threat To Terminate Palepale and Badiali Murata, Rosa, Badiali, and Palepale all testified as to what occurred in a conversation with Unga on or about May 5 or 7 at the Respondent's shop. The conversation started with Rosa arguing about his wage rate and then telling Unga that he had Badiali and Palepale join the Union as described above. Unga admits this was the first time he learned that Palepale and Badiali had joined the Union. When Rosa told him this, Unga turned and spoke in Tongan to Palepale. Unga asked Palepale if he had in fact applied to the Union and Palepale told him yes. He then told Palepale: He told me to go to the Union and tell them to cross off my application. Should I do that, I would come back and resume my job; or otherwise he will terminate my job. Unga then approached Badiali and asked him if he had applied to the Union. When Badiali responded in the affirmative Unga told him: Well, you will have to go down tomorrow and find out if the Union can give you a job. Resolve your union intentions or else you don't have a job here . . . I cannot use union men here. Murata confirmed that he heard Unga tell Badiali and Palepale that they should get out of the Union because if they didn't he would terminate them. Rosa also confirms that he heard Unga tell Badiali that if they didn't quit the Union they would be fired. 570 UNGA PAINTING CORP. F. The Further Interrogation and Discharge of Inoke Palepale Palepale next spoke to Unga about the Union the following Tuesday, May 11. Unga questioned Palepale to find out if he had gone to the Union. Palepale made a noncommittal response and Unga told him to go and wait to be called back to work. He stated that he did not want Palepale to work with Murata and Badiali. Palepale returned that Friday, May 14, to collect his paycheck. At that time Unga was told Murata had said he had gone to the Union and the Labor Board. Palepale denied this and Unga then told them to go home and wait until the job they were working on was completed. Unga said that he would then fire the two men who were working and call Palepale to come back to work and that he didn't like union men. Palepale was never called back to work at Respondent's place of business and was not told that he was being laid off for lack of work. In fact, Palepale knew that the job that he had worked on May 10 was not completed and that there was more work to be done on that job. Unga's records show that the week ending May 15 two new employees, Chul Soo Yoo and Hasin Sakim, started working for Respondent as painters. These two painters were still employed by Respondent as of the date of the hearing in the instant case. In addition to those two employees, Unga hired two other painters, Johnson and Morrissey, on a temporary basis during the week ending May 15. He had also hired two painters, Golenberg and Cruz, the week ending April 24. Unga had started a job at the Iroquois Elementary School in Ewa in early May 1976. That job continued into July 1976. These instances are cited as examples of the fact that even from Respondent's own records there was ample work available for Palepale after May 10. Unga admitted in a sworn statement to a Board agent that he was going to fire Palepale because he had gone to the Union. It is clear that Palepale was in fact terminated in accordance with Unga's statement to the Board agent, because he went to the Union. G. Additional 8(a)(1) as it Relates to the Discharge of Badiali Badiali reported to work on or about May 10 at which time he was asked by Unga if he had dissolved his union membership. An argument then took place between Badiali and Unga in the course of which Unga told him to just go to work. About a week later Murata informed Badiali that he had been terminated. He phoned Unga to find out why he had been terminated. Unga told Badiali: "I have got to fire the union men . . . the Union is my enemy . . . I would have liked to have kept you there but my lawyer advised me to throw out the union men." H. The Termination and Interrogation of Henry Murata Murata was hired by Respondent in March 1975. He was employed as a working foreman. He was discharged on May 18, 1976. In April 1976, Unga and Murata had a difference of opinion as to what employees should tell a Federal Inspector investigating wage rates paid to employ- ees by Respondent on a Federal project. As a result of that dispute Murata did not report to work one day in April 1976. Unga called Murata at his home to discuss the matter and during their conversation Unga learned that Murata had gone to the Union. He admitted asking Murata what had happened when he went to the Union. Murata told him he could not find a job through the Union and Unga told him he was welcome to come back and "work as long as you like." Murata then returned to work. Unga told Murata that his attorney had advised him to get rid of all union men. This conversation took place on May 18 pursuant to this alleged advice from his attorney and Unga told Badiali that he had to get rid of all union men. It is to be noted that this was the same thing that Unga had told Badiali at the same time. Murata was then terminated and has not worked for Respondent since that date. I. Violations of Section 8(a)(1) The General Counsel contends in her brief that the record evidence shows classic and extensive violations of Section 8(aX)() of the Act. Unga made it a practice to ask employees and prospective employees about their member- ship in, and their contacts with, the Union. On or about April 7, 1976, Unga asked employee Silva, when Silva was applying for a job, if he belonged to the Union. About a week later on April 13, 1976, in a telephone conversation Unga asked Silva if he said anything to the Union when he had applied for the job. When Silva replied in the affirmative Unga interrogated him further as to what he said when he contacted the Union. I find this interrogation violative of Section 8(aX I). On or about May 7, 1976, Unga learned from Rosa that employees Badiali and Palepale had joined the Union. At this point Unga immediately went to Palepale and asked him if he had joined the Union. When Palepale told him that he had, Unga told Palepale that if he went to the Union and "crossed off" his application, he could come back and resume his job, otherwise he would be terminat- ed. Unga then interrogated Badiali further and asked him if he had joined the Union. When Badiali told him he had, Unga told him that he couldn't use union men, and that Badiali should get out of the Union or else he didn't have a job with Respondent. Unga testified that he did not tell Palepale and Badiali that if they did not withdraw from the Union they could not work for Respondent. However, he admitted telling all his employees at the time he repudiated the contract, that they could go with the Union or stay with him. In the deposition attached to Respondent's answer (G.C. Exh. I(o)), Unga testified that at the time he repudiated the contract he told his men: Fellows, I am not in the Union anymore for the next week. So I want to let you know I still want to keep you that we - if you like to stay with me, stay with me. It's your choice. If you want to go with the Union, you can do so. I'll miss you guys. From this testimony and other of like nature with which the record is replete, it can be clearly seen that Unga set up 571 DECISIONS OF NATIONAL LABOR RELATIONS BOARD an either/or choice for his employees. He was still following this policy in the spring of 1976 when he told Henry Murata: I told him, Henry, I cannot use you if you still belong to the Union ... if you still belong to the Union I cannot use you. I told him, Henry, I still can keep you if you are not Union. If you belong to the Union, you can go back to the Union and get a job from them. I don't mean to have you withdraw from the Union. So he decided to just come back for the Union, he can get jobs. Then I say, O.K., you can go if you like to. I tell Henry, all my good men, they belong from the Union. They are welcome to come back for the Company if they are not union .... The record evidence makes it clear that Unga informed his employees on numerous occasions that they could work for him or belong to the Union. It would therefore appear reasonable to conclude that he told Badiali and Palepale the same thing when he learned they had joined the Union. The evasive and contradictory testimony of Unga cannot be credited over the clear and direct testimony of the four employees who witnessed this conversation. Unga directly told Badiali and Palepale that unless they withdrew from the Union they could not continue to work for Respon- dent. Unga further admitted telling Murata the same thing during the spring of 1976. The General Counsel concludes that these threats, to terminate employees unless they withdrew from the Union, constitute clear violations of Section 8(a)(1) of the Act. I agree. Unga followed up on this threat by questioning Badiali and Palepale the following week as to whether they had gone to the Union. Unga further asked Palepale if he had gone to the Labor Board. This extensive questioning of employees about their union membership and their contact and communication with the Union constitutes interroga- tion of employees in violation of Section 8(a)(1) of the Act. I so find. The General Counsel also points out that it is a violation of Section 8(a)(1) of the Act to accuse an employee of being a spy for the Union, as Unga accused Silva. In attempting to evaluate the motivation for the extensive interrogation of employees, the question comes up as to whether Unga is concerned that union employees might be fined for working for a nonunion employer. In view of Unga's conviction that the Union was his enemy, which has been stated many times during the course of the hearing, and his concern that employees might be spies for the Union, it is highly doubtful that he had employees' interests in mind when he engaged in the above interroga- tion. However, it is unnecessary to make a determination as to his motives. The law is clear that the finding of a violation does not rest on a subjective state of mind of the employer or the employee but on the coercive character of the actual statements made. J. Respondent's Refusal To Hire Miyamoto The Act makes it unlawful to refuse to hire an employee because of that employee's membership in a union. This too constitutes a violation of Section 8(a)(3) and I so find. Lola Unga, secretary-treasurer of Respondent, told Mi- yamoto that Respondent did not hire union members. She was well aware that this was her husband's policy. Unga himself told another employee, Silva, that he could not hire union men, and on many occasions informed other employees that he could not use union men. Respondent clearly refused to hire Miyamoto because of his union membership, which is a clear violation of Section 8(aX3) of the Act. I so find. K. Frank Silva's Termination At the time Silva initially was interviewed for a job, he was questioned by Unga who learned from this interroga- tion that he was a member of the Union. At that point Unga refused to hire Silva. A few days later he had a change of heart and Silva began to work for Respondent as a painter. In subsequent questioning, on or about April 13, Unga learned that Silva had contacted the Union about Unga's refusal to hire him. At that point Unga said that he hoped Silva was not a spy for the Union. The next day, April 14, Silva asked Unga if he would be paid time and a half for the upcoming holiday. When Unga replied that he did not pay time and a half, Silva said that it was his understanding that he was to be paid union scale. Silva then further insisted that under union regulations he was entitled to showup time and travel time for several days when work had been rained out. Unga told Silva that he was nonunion and that if Silva worked for him he would have to work according to his rules and not the union rules. Unga finally told Silva that if he could not follow these regulations, he was laid off. Unga candidly admitted to a Board agent that, "On April 15, or thereabouts, I laid off Silva because he came to me and told me I had to pay union rates and follow union rules." By this time Respon- dent had repudiated its contract with the Union. Silva knew that there was a dispute between Unga and the Union as to Respondent's union status and that the matter was then in litigation. Silva came to work for Respondent with Respondent's knowledge that he was a union member and Silva's understanding that he was to be paid union scale according to the contract. In his final conversations, Silva insisted that he be paid according to the contract. Such activity has been held to be protected concerted activity and it is a violation of Section 8(aX I) of the Act to terminate an employee for engaging in such activity. The General Counsel cites as her authority for the above proposition Interboro Contractors, Inc., 157 NLRB 1295 (1966); New York Trap Rock Corporation, Nytralete Aggregate Division, 148 NLRB 374 (1964); Merlyn Bunney and Clarence Bunney, partners, d/b/a Bunney Bros. Con- struction Company, 139 NLRB 1516 (1962). It appears that Silva was also terminated because of his contact with the Union in violation of Section 8(a)(3) of the Act. Unga had knowledge that Silva was a union member. He learned the day before Silva's termination that Silva had been in contact with the Union regarding working for Respondent and accused Silva of being a spy for the Union. When Silva then insisted on his rights under the contract, Unga apparently viewed Silva as siding with his enemy, the Union, and fired him. Unga's statements to Silva parallel other statements to other employees to the 572 UNGA PAINTING CORP. effect that they can belong to the Union and have the Union find them jobs or they could work for him. At the point where Silva revealed himself to be a strong union supporter, Unga no longer had employment for him. Respondent's pattern of discrimination against union employees is borne out by the frequently mentioned fact that Unga considered the Union his enemy. He further repeatedly stated that he could not have union men working for him. He terminated Silva, Rosa, Palepale, Badiali, and Murata because of their membership in or activities on behalf of the Union. As a consequence of his deeply held view that the Union was his enemy, Silva was clearly caught up in the same pattern and was discharged for his support of the Union in violation of Section 8(a)(3) of the Act. I so find. L. The Termination of Leroy Rosa Rosa was another victim of Respondent's determination to eliminate from his work force people who were not only members of the Union but continued to remain members despite numerous statements by this Respondent that he would not tolerate union members who retained their membership and followed union regulations instead of agreeing to work according to Unga's requirements. Rosa started work with Respondent with Unga's knowledge that he was a union member. About a week after he was hired, Rosa and Unga had a dispute over Rosa's rate of pay. During that discussion, Rosa announced that he had "a surprise" for Unga, that he had gotten Badiali and Palepale to join the Union. Unga immediately asked Badiali and Palepale if they had, in fact, joined the Union, and upon learning that this statement was true, turned and told Rosa that he was laid off. Unga admitted that he had fired Rosa but stated that his reasons were: Came drunk on the job and he argued me for his wages. Then he ended by bringing up something that he was hiding. He says, do you know what I did for your company? I said what? I gave you two men in the Union. I said so what. Unga admitted that he had the above-described conver- sation with Rosa and it was at this time that he first learned that Badiali and Palepale had joined the Union. In his sworn affidavit given to an agent of the Board, Unga stated that Rosa was a spy for the Union and was stirring his men up. While Unga takes the position that Rosa was drunk, Rosa denied that he came to work drunk. It appears that this alleged drunkenness was an afterthought on the part of Unga and was not the reason why he terminated Rosa. It is apparent from Unga's own testimony that he fired Rosa because Rosa asked for the union wage scale and for fringe benefits as provided in the contract, and because Rosa had helped Badiali and Palepale to join the Union. The timing of Rosa's termination, immediately after Unga learned that he had helped Badiali and Palepale join the Union, taken together with Unga's own admission, show that Rosa was terminated because of his union activities, in clear violation of Section 8(a)(3) of the Act. I so find. M. The Discharge of Inoke Palepale, John Badiali, and Henry Murata Palepale, Badiali, and Murata were all terminated because of their union membership and activities. Unga first learned, on or about May 7, from Leroy Rosa that Palepale and Badiali had joined the Union. As discussed supra, he questioned each of them, told them they could either be in the Union or could work for him and then later questioned them further as to whether they had resigned from the Union. After learning that Palepale had not withdrawn from the Union, Unga told him to go home and wait to be called back to work. When Palepale returned on May 14 to collect his paycheck, Unga said that he should go home and wait because he was going to fire two men when the current job was completed. He also told Palepale that he did not like union men and did not want Palepale to work with Badiali and Murata. Palepale was never called back to work for Respondent. The record makes it clear that Palepale was terminated because he joined the Union. Unga admitted in his affidavit, given to an agent of the Board, that he was going to fire Palepale because he had gone to the Union. Palepale's timecard for that week indicated that he had been fired. The final proof of the unlawful motivation is the complete pretextual nature of the reason advanced at the hearing for that determination. During the hearing Unga testified that Palepale had been laid off for lack of work. He testified: If we go back to the records, the particular day that he was laid off according to the amount of jobs that I had, it was correct. I laid him off because of lack of work. I don't have enough jobs for the men. The record evidence shows that Unga started a new job, the Ewa School job, in early May and that the said job was still in progress in July 1976. Through the week ending April 14, 2 weeks before he fired Palepale, Unga hired two new painters, Golenberg and Cruz. The week ending May 15, the week Palepale was fired, Unga hired two temporary painters, Johnson and Morrissey, and had two permanent full-time painters start work; Chul Soo Yoo and Hasin Sakim. This hiring pattern not only shows that Unga had enough work so that he didn't have to lay off Palepale, it also shows his intent to terminate Badiali and Murata. Unga told Palepale that he was going to fire two men and that he didn't like union men. That same week he hired several new painters. The next week, on May 19, Unga terminated Badiali and Murata. Less than 2 weeks after he learned Badiali had joined the Union, Unga told Badiali that he had to terminate his union men, that the Union was his enemy and that he was advised to throw out the Union by his attorney. Badiali was then terminated. At the same time, Unga told Murata that he had to terminate him, that he had to get rid of all union men because his attorney had so advised him. Murata was then also terminated. It is clear that the new painters were hired as replacements for Palepale, Badiali, and Murata who were terminated because of their union membership and activities. Palepale and Badiali were terminated shortly after Unga learned 573 DECISIONS OF NATIONAL LABOR RELATIONS BOARD they had joined the Union. Palepale had worked for Respondent since November 1975 and Badiali had been employed since January 1976. Murata had worked for Respondent since March 1975. The General Counsel argues that these three employees constituted an experi- enced, capable workcrew. They were laid off while employees who had worked for Respondent less than a week were kept on. It is clear from the record that Palepale, Badiali, and Murata were not laid off because of lack of work as Unga testified, but were laid off because they belonged to the Union. This in particular is clearly demonstrated with regard to Murata. Unga testified that he laid off Murata for lack of work but that was not the "only" reason. In his sworn deposition, incorporated into Respondent's answer, Unga admitted the real reason for Murata's termination. He admitted that, after Murata returned to work in April 1976, he discovered that Murata was still a member of the Union and that he then terminated him. From the evidence in the record and from Unga's own deposition, it is clear beyond doubt that Murata was terminated because of his membership in the Union. Unga's own admissions and conflicting testimony, the clear and direct testimony of the employee witnesses, and the incredible nature of the contention that these employ- ees were laid off for lack of work show that Palepale, Badiali, Murata, Silva, and Rosa were in fact terminated because of their union membership and activities in violation of Section 8(a)(3) of the Act. I so find. Threaded throughout the record there are repeated statements by the witnesses and admissions by Unga that he had to get rid of all union members because the Union was his enemy. Respondent's union animus is overwhelm- ingly demonstrated in this record. I so find. Upon the foregoing findings of fact, upon the entire record in this proceeding, I make the following: CONCLUSIONS OF LAW 1. Unga Painting Corporation is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Brotherhood of Painters and Allied Trades, Local 1791, AFL-CIO, is the labor organization within the meaning of Section 2(5) of the Act. 3. By discharging Frank Silva on April 15, 1976; Leroy Rosa on May 5, 1976; and Inoke Palepale on May 10, 1976; Henry Murata on May 19, 1976; and John Badiali on May 19, 1976, for engaging in union activities, Respondent thereby violated Section 8(a)(3) and (1) of the Act. I so find. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. I In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. THE REMEDY In order to effectuate the policies of the Act, it is necessary that Respondent be ordered to cease and desist from the unfair labor practices found. I will therefore recommend Respondent reinstate all of the above employ- ees and make them whole for any earnings they may have lost as a result of their discharge on the dates indicated above, by the payment of backpay computed on a quarterly basis, plus interest of 6 percent per annum, as prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Upon the basis of the foregoing findings of fact, conclusions of law, and the entire record in this proceed- ing, and pursuant to Section 10(c) of the National Labor Relations Act, I hereby issue the following recommended: ORDER 1 The Respondent, Unga Painting Corporation, Laie, Hawaii, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Discharging employees for engaging in union activi- ties. (b) Interrogating employees about their union activities. (c) In any other manner interfering with, restraining, or coercing employees in their exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer Henry Murata, James H. Miyamoto, Leroy Rosa, Inoke Palepale, and John Badiali immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantial equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any earnings they lost, plus interest, as a result of their discharge on the dates indicated above. (b) 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 recommended Order. (c) Post copies of the attached notice marked "Appen- dix." 2 Copies of said notice, on forms provided by the Regional Director for Region 20, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by any other material. 2 In the event that the Board's Order is enforced by a Judgment of the 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." 574 UNGA PAINTING CORP. 575 (d) Notify the Regional Director for Region 20, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith.