Kona 60 Minute Photo

KONA 60 MINUTE PHOTO Kona 60 Minute Photo and ILWU Local 142. Cases 37-CA-2004 and 37-CA-2028 26 November 1985 DECISION AND ORDER By MEMBERS DENNIS, JOHANSEN, AND BABSON On 12 July 1984 Administrative Law Judge George Christensen issued the attached decision. The Respondent filed exceptions and a supporting brief, the General Counsel filed cross-exceptions and a supporting brief, and the Respondent filed a brief in response. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. i The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,' and conclusions only to the extent consistent with this Decision and Order. Contrary to the judge, we find that certain state- ments made by a comanager of the Respondent's Kona, Hawaii photo development shop constitute unlawful interrogations under Section 8(a)(1) of the Act. On 30 December 1982 Comanager Peter Davis2 received two letters from the Union. These letters stated that a majority of the shop employees had designated it as their collective-bargaining rep- resentative, that it had filed an election petition, and that it was requesting, recognition. Up to this time no one in the Respondent's management was aware of any organizing activities at the shop. One of the letters also stated that the Union agreed to offer proof of its majority status by permitting any impartial person to compare the signatures on its authorization cards against those on the company payroll list. Later that same day Comanager Davis ap- proached lab technician Verna Fukunaga while she was working in the photo lab. He confronted her with the fact that he had received the Union's letter. He then asked her if the shop employees were going to form a union. Verna said yes. He then asked her who had signed for the Union. Verna replied that all shop employees had. Their conversation then ended. ' The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings, i Both Davis and fellow Comanager Joyce Pest are stipulated supervi- sors 867 Davis also approached shop employee Kelly Goold while he was working in the lab. Davis asked Goold if he was for the Union. Goold stated yes. Davis then asked him if he was involved with the Union. Goold did not respond and their con- versation ended. We find that Davis' questions constituted unlaw- ful interrogations. Neither Fukunaga nor Goold had openly declared themselves to be union sup- porters. Furthermore, Davis' exchanges with Fu- kunaga and Goold were not casual conversations which sought information of a general nature. Rather, Davis requested specific information con- cerning whether they supported the Union and the identity of others who supported the Union. This information can reasonably be seen by those being questioned as a basis to initiate action against indi- vidual employees. Davis' status as a comanager of the shop and the fact that the questioning took place at the employees' work stations rather than in a less formal setting are also relevant consider- ations. Under all the circumstances we conclude that Davis' questions reasonably tended to coerce - employees in the exercise of rights guaranteed by the Act in violation of Section 8(a)(1). Rossmore House, 269 NLRB 1176 (1985). We agree with the judge's conclusion that the Respondent violated Section 8(a)(1) by posting a notice to employees on 4 January 1983 which threatened to dismiss employees and cancel their wage increases due to their union activities. The posted notice, which Comanager Joyce Pest draft- ed with instructions from the Respondent's general partner Stuart Salot, read as follows: Attention All Employees All pay raises are cancelled in conformance with the attached Longshoremen union letter requesting no changes be made. Each employee will be reviewed individually as to whether he/she will be retained as an employee. The matter of union representation and possi- ble dismissal of some and or all employees has been turned over to the company's legal dept. You will be notified when this situation is re- solved. The notice's statement, "The matter of union repre- sentation and possible dismissal of some and or all employees," clearly implies the threat of discharge for union activities. The Respondent suggests that this statement merely expressed the Respondent's intention to oppose unionization "only within the limits of the law," because the statement noted that the matter of union representation and dismissal 277 NLRB No. 92 868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD had been "turned over" to the Respondent's "legal department." However, the statement clearly con- nects seeking union representation with dismissal, which belies this strained and unrealistic interpreta- tion of the statement. The Respondent also suggests that the notice's cancellation of pay raises was not unlawful because one of the Union's letters had requested that the Respondent make no changes with respect to the employees. Earlier, on 26 December 1982, Salot had announced at an employees' meeting that the employees would receive a pay raise about the completion of their first year of service. Several days later Comanager Davis received the two union letters discussed above. In addition to stating that the Union had filed for an election and that it hoped the matter could be handled amicably, one of the letters contained the boilerplate request that the Respondent "maintain the status quo" with re- spect to the employees.3 We agree with the judge that this letter cannot reasonably be read as requesting the Respondent to cancel the pay raise when it had promised the raise before the Respondent had been notified of any or- ganizing activities at its shop. Furthermore, the Re- spondent's notice was not based on any apprehen- sion that the Respondent was caught between Scylla and Charybdis because it was uncertain whether the Act compels or forbids the payment of a wage increase during the critical period of an election.4 The Respondent did not announce that it canceled the wage increase out of a concern that the raise might be construed as an unlawful attempt to influence the outcome of the upcoming election. Rather, when viewed in context with the notice's unlawful threat to dismiss employees discussed above, it is evident that the Respondent sought through this cancellation to threaten employees for engaging in union activities.5 The text of this letter is as follows ILWU Local 142 has filed with the National Labor Relations Board a petition for certification as bargaining representative for your em- ployees In due course, we presume an election will be conducted and if a majority of such employees desire to be represented by the Union, a collective bargaining agreement will be negotiated It is our hope, of course, that the entire matter can be handled amicably and in a busi- ness-like fashion In this connection we strongly urge that you main- tain the status quo for these employees on all matters of employment until after the representation matter has been resolved Of course, you are familiar with the legal rights of these employees to organize and bargain collectively through a union of their own choosing We hope that any litigation can be avoided and it will be if you continue to maintain the status quo with respect to these em- ployees 4 See Medical Center at Bowling Green, 268 NLRB 985 (1984), Village Thrrft Store, 272 NLRB 572 (1984) 5 Stuart Salot and Respondent's general manager Mary Jane Anderson testified without contradiction that the Respondent paid the promised raises Accordingly, the judge's recommended Order and notice is We further agree that the Respondent violated Section 8(a)(1) by threatening and interrogating employee Jay Moriguchi on 4, January 1983. On this date Salot telephoned Moriguchi at the Kona shop. Salot testified that he called Moriguchi in an effort to determine whether the former Kona shop manager had orchestrated the employee effort to secure union representation in revenge for his recent discharge by Salot. Salot began their conversation by asking Morigu- chi why the employees wanted union representa- tion. Moriguchi responded that he could not dis- cuss the matter. Salot then asked him to whom he could speak, and Moriguchi told him to call the Union's organizer, Dan Johnson. Salot conceded at the hearing that he then repeatedly questioned Moriguchi why the employees desired union repre- sentation, while Moriguchi responded each time that he could not discuss the matter. Based on the credited testimony of Moriguchi, Salot also made several threats during this conversation. Salot stated that he would discharge any employee he learned was involved with the Union, that he would refuse any bargaining requests the Union made, and that if the employees then struck he would hire new employees.6 We agree that the Respondent violated Section 8(a)(1) by threatening to discharge employees for engaging in union activities. We also agree that Salot's statement that the Respondent would refuse any union bargaining request violated the Act. This anticipatory refusal to bargain in good faith unlaw- amended to delete the requirement that the Respondent make whole its employees for the wages withheld due to the Respondent's unlawful can- cellation of the wage increase In sec II,A, the judge inadvertently states that the posted notice was removed on 3 instead of 4 January 1983 This inadvertency does not affect our decision 6 The judge's description of Moriguchi's testimony concerning Salot's above-noted threats varies somewhat from the recorded testimony Mori- guchi's testimony concerning Salot's threats which Moriguchi gave in re- sponse to the General Counsel's questions is as follows Q (By Mr. Cestare) Okay What did he [Salot] say and what'did you say' A (Moriguchi) Well, he wanted to know what was going on with this union thing I told him I couldn't talk to him about that He said he would hire new people, he would refuse all of the union negotia- tions MR MARSH I am sorry but could you speak up, please9 I can't hear you JUDGE CHRISTENSEN Raise your voice a little so we can all hear you MORIGUCHI Okay Well, again that when he called he asked what was going on and why is everything happening I told him I couldn't talk about it He said he would refuse the union offers and hire new people if we went on strike Q Did he say anything about disciplining employees? A Oh, yeah Q What did he say9 A That he would terminate anyone that was involved Q Involved with what? A With the union KONA 60 MINUTE PHOTO fully threatened that the employees' efforts to orga- nize would be an exercise in futility.' Furthermore, we find that the coercive effect of Salot's threat to hire new employees if the employees struck, in the context of Respondent's refusal to bargain in good faith, is analogous to that of a threat to bargain in bad faith so as to force a strike,8 and amounts to a veiled threat of discharge. Accordingly, we con- clude that this statement also violated Section 8(a)(1) of the Act. We further agree that Salot's questioning of Moriguchi constituted unlawful interrogation. Al- though Salot's questions regarding the employees' interest, in union representation may not have spe- cifically solicited the identity of union supporters, Sa]ot posed these questions in conjunction with his threat to discharge any employee he found was in- volved with the Union.9 He also repeatedly asked these questions despite Moriguchi's clear attempts to avoid discussing the subject by answering each time he could not discuss the matter. Furthermore, Moriguchi had not openly declared himself to be a union supporter. Accordingly, under all the cir- cumstances we find that Salot's questioning of Moriguchi was coercive and in violation of Section 8(a)(1). 10 Although we agree with the judge's finding that the General Counsel established a prima facie case that Verna Fukunaga was terminated on 7 January 1983 because of her union activity, i i we find that any inference of unlawful motivation in discharging Verna is rebutted by evidence which establishes that well before learning of the shop employees' union activities Salot had planned to dismiss Verna in January 1983. In January 1982 Salot opened the Kona film shop and hired Verna's husband, Wayne Fukunaga, as the shop manager. Wayne in turn hired several employees to staff the shop whom he had worked with for several years at another 'photo shop. This included Verna, whom Wayne had worked with for 5 years. Six months later Salot opened a second photo shop in Kauai, and appointed Wayne as the general manager for both shops. Wayne hired Dianne Warren to serve as the local manager of the Kauai shop. In August 1982 Wayne sought Salot's permission to discharge Warren based on Wayne's dissatisfac- ' See Our Way, Inc, 268 NLRB 394, 414 (1983), Atlas Microfilming, 267 NLRB 682, 685-686 ( 1983); Quality Engineered Products, 267 NLRB 593, 596 ( 1983), E. I duPont & Co, 263 NLRB 159, 165- 166 (1982) 8 See Neo-Life Co ofAmerica, 273 NLRB 72 (1984) B Salot conceded at the hearing that he had assumed that Moriguchi was a union supporter 10 See Rossmore House, supra i i This prima facie showing is based on the timing of her discharge, the above-discussed unlawful conduct of the Respondent , and the demon- strated union animus of Stuart Salot, who discharged Verna 869 tion with her performance. Salot not only refused Wayne's request, he also relieved Wayne of his po- sition as general manager over the Kauai shop and restricted his role at Kauai to providing Warren technical advice as and when she requested it. During September and October 1982 Warren re- ported to Salot on several occasions that Wayne had failed to make himself readily available to answer her technical questions. She also reported that, when she spoke with Verna at the Kona shop in attempting to reach Wayne, Verna was uncoop- erative and hostile. The Respondent's then oper- ations manager, Mary Jane Anderson, reported the same observations concerning Verna to Salot. On 12 November 1982 Salot sent Wayne a letter stating his dissatisfaction with Wayne's work atti- tude and handling of certain business records, and suggesting that Wayne seek other employment. Wayne did not respond to the letter and Salot de- cided to discharge him. On 3 December 1982 Salot sent Wayne a letter terminating Wayne effective 31 December 1982. Anticipating that all or many of Wayne's Kona staff would resign out of loyalty to him, Salot drew up a shop reorganization plan. Salot sent this plan to Warren in a letter also dated 3 December 1982. Salot stated in his letter that two employees at other locations, Peter Davis and Joyce Pest, would replace Wayne and Verna, respectively. i " Salot also stated that he expected Verna would quit when Wayne is dismissed, but that if she did not quit on her own they could use the time to provide Pest additional training and could then terminate 12 Salot's letter states in pertinent part as follows Enclosed is a photocopy of Wayne Fukunaga 's termination letter dated December 3, 1982. The following are the personnel changes to be implemented over the next 2 months Peter Davis to replace Wayne Fukunaga Joyce Pest to replace Verna Fukunaga Kraig Kerley to replace Kelly Goold Michele Ostrove to replace Peter Davis (Kauai shop) The estimated time table is as follows 1 Wayne's termination letter is being sent today He will work through the 23rd and take a weeks [sic ] paid vacation from the 24th through the 31st 2 I will arrive in Hilo on approximately the 15th and drive to Kona 3 I would like you and Peter to meet me in Kona on the 21st or 22nd We will check out the shop and take over the operation on the 24th 4 Joyce will have completed the 2 week Noritsu training course on December 10th She is planning to fly to Kauai on the 15th You only have a few days, so get her up to speed on shop procedures as quickly as possible I assume Verna will quit when Wayne is fired. If she does, you will have to bring Joyce with you when you and Peter come to Kona. If Verna does not quit on her own, we can use the time to give Joyce additional training and can terminate Verna some time in January 6 Wayne has become totally uncooperative at this time, therefore, I would like you to begin to assume overall responsibility for both shops 870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Verna some time in January. Salot further stated that because Wayne had become totally uncoopera- tive Warren should assume overall responsibility for both shops. Pest and Davis arrived to assume supervision of the Kona shop on 26 December. Although two Kona shop employeesl3 quit immediately follow- ing Wayne's termination, Verna continued working at the Kona shop. However, Verna refused to speak, with Pest while, working at the shop, and during the first week of January 1983 both Pest and Davis advised Salot to let her go. On 7 Janu- ary 1983 Verna received written notice that she was fired. When Verna asked Davis why she was dismissed Davis advised her that it was for insubor- dination. Verna conceded at the hearing that she had in fact been insubordinate. 14 We find that when Salot prepared the Kona shop reorganization plan (which he prepared well before learning of any organizing activities), he as- sumed Verna would quit when he discharged Wayne but that, if she did not, he planned to termi- nate her in January 1983 after taking advantage of her services to train Pest. We further find that Salot terminated Verna on 7 January 1983 after de- termining that she was of no assistance in training Pest at the Kona shop. Accordingly, we conclude that Salot would have terminated Verna absent her union activity and therefore the Respondent did not discharge Verna in violation of Section 8(a)(3) of the Act. 1 s We agree with the judge that a bargaining order is warranted to remedy the Respondent's extensive and pervasive unfair labor practices. We find, as did the judge, that the Union obtained signed au- thorization cards from all the Respondent's Kona shop employees by 2 December 1982. We also find, as discussed above, that the Respondent repeatedly violated Section 8(a)(1) of the Act. In determining whether a bargaining order is warranted to remedy the Respondent's misconduct in this case, we apply the test set out in NLRB v. Gissel Packing Co., 295 U.S. 575 (1969). There, the Court identified two categories of cases in which a bargaining order would be appropriate. The first ' 3 'Debbie Freeman and Dana Henriquez 14 Immediately after stating on direct examination that Davis informed her,that she had been discharged for insubordination, Verna responded affirmatively but without specification to the General Counsel's question of whether she was ever insubordinate 15 See Wright Line, 251 NLRB 1083 (1981), enfd 662 F 2d 899 (1st Cir 1981), cert denied 455 U S 989 (1982) The General Counsel sought to establish that the above-stated reason for discharge was pretextual in light of the Respondent's having given other allegedly conflicting reasons for her discharge However, we find that, considering the record as a whole, and particularly the fact that the Respondent's decision to reorga- nize the Kona shop was made well before the Respondent learned of the union activity, the General Counsel failed to meet her burden in this regard involves "exceptional cases" marked by unfair labor practices which are so "outrageous" and "pervasive" that traditional remedies cannot erase their coercive effects with the result that a fair election is rendered impossible. The second catego- ry involves "less extraordinary cases marked by less pervasive practices which nonetheless still have the tendency to undermine majority strength and impede the election processes." The Supreme Court stated that in the latter situation a bargaining order should issue where the Board finds that "the possibility of erasing the effects of past practices and of ensuring a fair election . . . by the use of traditional remedies, though present, is slight and that employee sentiment once expressed through cards would, on balance, be better protected by a bargaining order." Id. at 613, 614-615. In the case before us the judge did not clearly place the Respondent's conduct in either category. We believe that the Respondent's unfair labor prac- tices fall into at least the second category. On learning that there was union activity at the Kona shop the Respondent immediately embarked on an antiunion campaign designed to discourage its employees from supporting the Union. The Re- spondent unlawfully interrogated three of the five shop employees. Two of these interrogations were conducted by a comanager of the Kona shop while the third was conducted by the Respondent's gen- eral partner. The Respondent also posted a notice in which it not only threatened to cancel the shop employees' pay raises, but also threatened to dis- charge some or all of them because of their union activities. All except one shop employee read this notice. The Respondent's general partner also threatened to fire any employee he found was in- volved with the Union. He further threatened that seeking union representation would be an exercise in futility because the Respondent would refuse any union bargaining request and that if the em- ployees struck over the Respondent's refusal to bargain in good faith it would simply hire new em- ployees. It is clear that the Respondent's unlawful con- duct struck at the very core of the employees' or- ganizational efforts. Its conduct involved such vio- lations as repeated threats of discharge for union activity. Threats of this nature have a profound impact on employees. These threats were also widely disseminated. The seriousness of the Re- spondent's conduct is further underscored by the small size of the unit and the high level of the man- agement officials involved. Taken as a whole, the Respondent's acts involve the type of severe and pervasive coercion which has lingering effects not readily dispelled. KONA 60 MINUTE PHOTO In light of the violations `found herein, we con- clude that the possibility of erasing the effects of the Respondent's unfair labor practices and of con- ducting a fair election by the use of traditional remedies is slight. Requiring the Respondent simply to refrain from such conduct will not eradi- cate the lingering effects of the violations. Corre- spondingly, an election would not reliably reflect genuine, uncoerced employee sentiment. Thus, we conclude that the employees' representation desires expressed here through authorization cards would, on balance, be protected better by our issuance of a bargaining order than by traditional remedies. Fur- thermore, although there has been some turnover in the unit and a significant passage of time since the violations occurred, in light of the circum- stances of this case, particularly the seriousness of the violations and their impact on the entire unit, to withhold a bargaining order here would, in effect, reward the Respondent for its own wrong- doing. Accordingly, we adopt the judge's recom- mended Order, as modified below, and require the Respondent to bargain with the Union as the duly designated representative of the employees in the unit found appropriate effective 30 December 1982, the date the Respondent embarked on a clear course of unlawful conduct after the Union had ac- quired authorization cards from a majority of em- ployees in the unit. ORDER The National Labor Relations Board orders that the Respondent, Kona 60 Minute Photo, Kailua- Kona, Hawaii, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Interrogating its employees concerning their union activities, threatening its employees with dis- charge for engaging in union activities, threatening to cancel wage increases it promised employees be- cause of their union activities, telling its employees it will not make any concessions to demands made by ILWU Local 142 for improvements in its em- ployees' rates of pay, wages, hours, and working conditions and that it will replace any employees who strike over its refusal to make any such con- cessions, and failing or refusing to recognize and bargain with Local 142 at its request concerning the rates of pay, wages, hours, and working condi- tions of its employees within the following unit: All regular and regular part-time employees of Kona 60 Minute Photo employed at its Kailua- Kona, Hawaii location, including lab techni- cians and sales clerks, but excluding all confi- dential employees, clerical employees, profes- 871 sional employees, supervisory employees, and guards, as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the purposes of the Act. (a) Recognize and bargain with ILWU Local 142 at its request concerning the rates of pay, wages, hours, and working conditions of its em- ployees within the unit set out above. (b) Post at its premises in Kailua-Kona, Hawaii, copies of the attached notice marked "Appen- dix." 16 Copies of the notice, on forms provided by the Regional Director for Region 20, after being signed by the Respondent's authorized representa- tive, shall be posted by the Respondent immediate- ly upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges violations of the Act not specifically found. MEMBER DENNIS, concurring. I join my colleagues in issuing a remedial bar- gaining order based on the analysis set forth in my concurring opinion in Regency Manor Nursing Home, 275 NLRB 1261 (1985). The Respondent committed highly coercive "hallmark" violations of the At by repeatedly threatening to discharge employees for engaging in union activity. A notice the Respondent posted, which six of seven unit employees read, expressly linked the "matter of union representation" with the "possible dismissal of some and or all employ- ees." The Respondent's general partner told an em- ployee that he would "terminate anyone that was involved" with the Union. The same company offi- cial also unlawfully threatened job loss when he stated the Respondent would "hire new people" if the employees engaged in an unfair labor practice strike to protest the Respondent's refusal to bargain in good faith. i6 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading " Posted by Order of the Nation- al 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 " 872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Such highly coercive unfair labor practices are likely to have a lasting effect on election conditions for several reasons. First, the violations were di- rected against a very small unit of only seven em- ployees. NLRB v. Solboro Knitting Mills, 572 F.2d 936, 944 (2d Cir. 1978) ("since the unit is small . . . unfair practices need affect very few employees in order to foreclose a fair and free election"). Second, the violations directly affected all but one of the unit members. Finally, the unfair labor prac- tices emanated from high-level management offi- cials. The Respondent's hallmark violations of perva- sive effect justify a bargaining order, absent signifi- cant mitigating circumstances. Here, the mitigating developments are limited to turnover and passage of time. Given the seriousness and extensiveness of the violations, the small size of the unit, and the fact that two employees subject to the Respond- ent's unfair -labor practices were still employed at the time of the hearing, I find that the Respondent has not satisfied its heavy burden of showing miti- gation. See my Regency Manor concurrence, supra, 1262. Accordingly, I agree that a bargaining order should issue. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that, we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT threaten our employees with dis- charge for seeking representation by, and the pro- tecticn of, ILWU Local 142 or any other labor or- ganization. WE WILL NOT threaten to cancel or withhold wage increases from our employees because they seek to secure representation by and the protection of ILWU Local 142 or any other labor organiza- tion. WE WILL NOT tell our employees that we will not make any concessions to requests made by ILWU Local 142 or any other labor organization duly designated to act as our representative for col- lective-bargaining purposes and that we will re- place any employees who go on strike over our re- fusal to make any such concessions. WE WILL NOT interrogate our employees con- cerning their activities vis-a-vis ILWU Local 142 or any other labor organization. WE WILL NOT fail or refuse to recognize and bargain with ILWU Local 142 concerning the rates of pay, wages, hours, and working conditions of: All regular and regular part-time employees of Kona 60 Minute Photo employed at its Kailua- Kona, Hawaii location, including lab techni- cians and sales clerks, but excluding all confi- dential employees, clerical employees, profes- sional employees, supervisory employees, and guards, as defined in the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL recognize and bargain with ILWU Local 142 at its request concerning the rates of pay, wages, hours, and working conditions of our employees in the unit described above. KONA 60 MINUTE PHOTO Thomas W. Cestare, for the General Counsel. Michael R. Marsh (Case, Kay & Lynch), of Honolulu, Hawaii, for Kona 60 Minute Photo DECISION STATEMENT OF THE CASE GEORGE CHRISTENSEN, Administrative Law Judge. On September 15 and 16, 1983, I conducted a hearing at Kailua-Kona, Hawaii, to try issues raised by a consolidat- ed complaint issued on June 13, 1983, and amended on September 2, 1983, based on a charge filed by ILWU Local 142 in Case 37-CA-2004 on February 3, 1983, and a second charge filed by ILWU Local 142 in Case 37- CA-2028 on February 25, 1983. The complaint alleged Kona 60 Minute Photo (the Re- spondent) violated Section 8(a)(1) of the National Labor Relations Act (Act), by interrogating employees con- cerning their union activities and desires, by threatening employees with discharge for engaging in union activi- ties, by threatening employees with loss of benefits be- cause they engaged in union activities, and by telling em- ployees it would be futile for them to seek union repre- sentation; that the Respondent violated Section 8(a)(l) and (3) of the Act by discharging two employees for en- gaging in union activities; and that the Respondent vio- lated Section 8(a)(1) and (5) of the Act by failing or re- fusing to recognize and bargain with Local 142 as the duly designated collective-bargaining representative of a majority of the Respondent's employees within an appro- priate bargaining unit KONA 60 MINUTE PHOTO The Respondent conceded the unit Local 142 sought to represent was appropriate for collective-bargaining purposes within the meaning of Section 9 of the Act, that it discharged the two employees named in the com- plaint, and that it failed to respond to Local 142's claim of majority representative status within the unit and demand for recognition and bargaining The Respondent denied the two employees were discharged for engaging in union activities, denied commission of the acts alleged as independent violations of Section 8(a)(1) of the Act, denied' Local 142 ever achieved an uncoerced majority representative status within the unit, alleged the Re- spondent had a good-faith doubt of Local 142's claim of majority representative status, denied committing any violation of the Act, asserted no bargaining order should issue in view of the foregoing, and requested the com- plaint be dismissed. The issues for resolution are- 1 Whether Local 142 achieved an uncoerced majority representative status within the unit. 2. If so, whether the Respondent dissipated that status and violated the Act by: a. Interrogating employees concerning their union ac- tivities and desires. b. Threatening to discharge employees for engaging in union activities. c. Threatening employees with loss of benefits for en- gaging in union activities. d. Trying to discourage employees from seeking and securing union representation by telling them such effort would be futile. e. Discharging two employees because of their union activities. 3. Whether the Respondent failed or refused to bargain with Local 142 as the representative of an uncoerced majority of the Respondent's employees within the unit. 4. Whether the Respondent violated the Act by any of the foregoing. 5. Whether a bargaining order is warranted. The parties appeared by counsel and were afforded full opportunity to adduce evidence, examine and cross- examine witnesses, argue, and file briefs. Counsel argued orally and the Respondent submitted a brief. Based on my review of the entire record, observation of the witnesses, perusal of the arguments, the brief, and research, I enter the following FINDINGS OF FACT 1. JURISDICTION AND LABOR ORGANIZATION The complaint alleged, the answer admitted, and I find at all pertinent times the Respondent was an employer engaged in commerce in a business affecting commerce and Local 142 was a labor organization within the mean- ing of Section 2 of the Act. 873 11. THE ALLEGED UNFAIR LABOR PRACTICES A. Facts The Respondent is a partnership in which the general partner, Stuart Salot , i "exercised overall supervision and direction of the business. Prior to the opening of Respondent's photo develop- ment shop at Kailua-Kona, Hawaii, in January 1982, Salot, who resided in the Los Angeles, California area and ran other businesses there, recruited a Kona resident experienced in photo shop' management, Wayne Fukun- aga, to manage the Kona shop Fukunaga, in turn, hired a number of employees to man the shop, including per- sons who had worked for him in similar operations. Six months later, Salot opened a second shop on the neighboring island of Kauai. Again he was the general partner in overall charge. Salot appointed Fukunaga as general manager, in charge of both the Kona and Kauai shops, and Fukunaga hired a crew to man the Kauai shop, including a local manager , Diane 'Warren. In August 1982, expressing dissatisfaction with War- ren's job performance, Fukunaga sought Salot's agree- ment to her discharge. By that time Salot had developed a personal as well as a business relationship with Warren and not only refused to go along with her discharge in September but he relieved Fukunaga of overall responsi- bility over the two shops and limited his role at Kauai to providing technical advice to Warren as and when re- quested. Between September and November 1982, Warren re- peatedly told Salot that Fukunaga was unavailable when she tried to secure his assistance in resolving technical problems, that his wife Verna (who was employed as a photo technician at the Kona Shop) and another Kona employee (Kelly Goold) were hostile and uncooperative when she sought their help in attempting to reach Fu- kunaga, and that employees Debbie Freeman, Dana Hen- riquez, Jay Moriguchi, Diana Perkins, and Raylene Pubre were friendly and cooperative. Responding to those complaints and dissatisfied with aspects of Fukunaga's job performance, on November 12, 1982, Salot addressed a letter to Fukunaga from his Los Angeles office expressing his dissatisfaction with Fu- kunaga and suggesting Fukunaga seek other employ- ment. Fukunaga did not respond to the letter and in late November, Salot decided to discharge him. Anticipating all or part of the Kona staff might resign out of personal loyalty to Fukunaga at his departure, Salot offered one of his Los Angeles employees, Joyce Pest, the job of ad- ministrative comanager of the Kona shop and Peter Davis, an experienced technician employed at the Kauai shop, the job of technical comanager of the Kona shop Both accepted, with Pest conditioning her acceptance on the employment at Kona of her fiance, Kraig Kerley, as a photo technician, a condition which Salot accepted. Salot thereupon sent Pest to a school in the Los Angeles area for training. About the same time, Salot offered Los i The complaint alleged , the answer admitted , and I find at all perti- nent times Salot was a supervisor and agent of the Respondent acting on its behalf within the meaning of Sec. 2 of the Act 874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Angeles resident Michele Ostrove, who had previous ex- perience in photo development, a job as a photo techni- cian at the Kauai shop, replacing Davis, and she accept- ed. On December 3, 1982, Salot sent a letter to Fukunaga terminating his employment effective December 31, 1982, authorizing his taking the period of December 24- 31, 1982, as a paid vacation, and requesting he deliver all company records, equipment, supplies, etc., in his posses- sion to the Kona shop on or before December 23, 1982. At Kona, subsequent to his receipt of Salot's Novem- ber 12, 1982 warning letter and prior to his December 7, 1982 receipt of Salot's termination letter, Fukunaga ad- vised the Kona work forcez of his problems and they de- cided to seek union representation and protection, au- thorizing Moriguchi to contact Local 142. On December 1, 1982, Moriguchi asked Verna Fukunaga to contact Local 142, since he was working two jobs and it was her day off. Verna, hesitant about going alone to the union office, asked her husband to accompany her. He agreed and drove her to the union office, then to the shop, and back to their home, and was present both during her conference with Local 142 Organizer Dan Johnson and her subsequent conference at the shop with the employ- ees. In the course of Verna's conference with Johnson, Johnson explained to Verna the procedures for securing union representation, how Local 142 operated, what it sought for employees it represented, gave Verna book- lets and authorization cards for distribution to the Re- spondent's employees, and requested she and the employ- ees read and sign the cards and return them to him. On the conclusion of that conference, the Fukunagas proceeded to the shop, where Verna told the employees present3 what Johnson stated, distributed the booklets and cards, and asked those present to read and sign the cards. All did so and returned the signed cards to Verna. Before departing, Verna left a card for Freeman's inspec- tion and signature. The following day Verna collected Freeman's signed card, added a card she signed, and delivered the seven signed cards to Johnson. During Verna's conference with Johnson, Wayne asked Johnson a few questions and during Verna's con- ference with the employees at the shop, when he was asked his views concerning the employees' effort to secure union representation, Wayne reiterated the view it was up to the employees to decide what they wanted.4 There was no contact between Salot and Fukunaga be- tween the time Fukunaga received Salot's November 1982 warning letter and his December 7, 1982 receipt of his discharge letter, nor thereafter; thus Salot was com- pletely unaware of the employees' organizational effort at the time (about December 23, 1982) he arrived in Kona to oversee the personnel changes at the Kona shop. 2 Freeman, Verna Fukunaga (Wayne Fukunaga's wife), Goold, Henri- quez, Moriguchi, Perkins, and Pubre 3 Goold, Henriquez, Moriguchi, Perkins, and Pubre 4 Fukunaga testified he was instructed by a prior employer not to make comments favoring or opposing union representation or he would expose his employer to unfair labor practice charges In mid-December 1982, Pest shipped her auto from Los Angeles to Kona and proceeded to Kauai for her on-the-job training . On December 23, 1982, Warren, Davis, and Pest traveled to Kona and met with Salot. On December 26, 1982, Salot, accompanied by Warren, Davis, and Pest, proceeded to the Kona shop and met with the employees still in the Respondent's employ at Kona;5 introduced Pest and Davis as the new coman- agers of the Kona shop; asked for the cooperation of the employees; and announced the Respondent was planning to grant them wage increases at the completion of their first year of service (January 1983 and thereafter). On December 28, 1982, Local 142 sent two letters to the Kona shop. In one of the letters, Local 142 advised the Respondent a majority of its Kona employees had designated Local 142 as their representative for the pur- pose of bargaining collectively with the Respondent con- cerning their rates of pay, wages, hours, and working conditions, offered to submit authorization cards signed by the employees to any impartial person for authentica- tion of its claim of majority representative status, and re- quested the Respondent to recognize Local 142 as the exclusive collective-bargaining representative of its em- ployees and commence bargaining with Local 142 over the employees' rates of pay, etc. In the second letter, Local 142 advised the Respondent Local 142 had on the same date filed a petition with the Honolulu office of the National Labor Relations Board seeking certification as the exclusive collective-bargaining representative of the Respondent's employees, stated it presumed an election would be conducted by the Board, expressed the hope a collective-bargaining agreement could be negotiated in an amicable manner following certification by the Board that a majority of the Respondent's employees had voted for union representation, and stated in closing that: Of course, you are familiar with the legal rights of these employees to organize and bargain collective- ly through a union of their own choosing. We hope that any litigation can be avoided and it will be if you continue to maintain the status quo with respect to these employees. On the same date, Local 142 filed (Case 37-RC-2722) a petition with the Board seeking certification as the ex- clusive collective-bargaining representative of the follow- ing unit: All regular and regular part-time employees of the employer located at Kailua-Kona, Hawaii, including lab technicians and sales clerks, excluding all confi- dential, clerical and professional employees, supervi- sory employees, guards and/or watchpersons as de- fined by the Act. Davis and Pest received and read the two letters on December 30, 1982. 5 Contrary to Salot's hope and expectation, Freeman and Henriquez quit shortly before Wayne's last day at the shop, while Verna, Goold, Moriguchi, Perkins, and Pubre stayed on the job KONA 60 MINUTE PHOTO That same date Davis approached Verna Fukunaga, told het the Respondent received the two Local 142 let- ters, and asked her if the employees had formed a union. Receiving an affirmative response, Davis asked Verna who had signed for the Union and broke off the ex- change after Verna replied everyone signed.6 About the same time, Davis approached Goold and asked him if he was for the Union and Goold replied affirmatively.7 Sometime thereafter Davis advised Pest all the employ- ees signed for the Union a On January 3, 1983, Pest advised Warren at Kauai about the matter and Warren said she would notify Salot. At approximately 10:30 to 11 p.m., Kona time, when Davis and Pest were alone in the Kona shop clos- ing up, Salot telephoned from Los Angeles . Pest read the contents of the two Local 142 letters to him. Salot was upset and directed Pest to prepare and post a notice to the employees they could read on arriving at the shop the following day. Pest prepared a rough draft which re- flected her understanding of what Salot wanted in the notice. The rough draft read as follows: Attention All Employees Per directive of Stuart Salot, all pay raises are can- celled and each employee will be reviewed individ- ually as to whether he/she will be retained as an employee. Any employee joining a union will lbe fired This action is being taken in conformance with the attached Longshoremen union letter which requests no changes be made. requesting no changes be no changes be made. The matter of union repre- sentation and possible dismissal of some and or all employees has been turned over to the Company's legal dept. You will be informed notified when this situation is resolved.9 On the rough draft, a line was drawn through the words "Per directive of Stuart Salot"; the period after "canceled" was removed; the word "and" after "can- celed" was stricken; a line and arrow was run down after the word "canceled" to the words "in conformance with"; a line was drawn through the words "Any em- ployee joining a union will be fired."; a line was drawn through the word "which"; a line was drawn through the words "no changes be"; and a line was drawn through the word "informed." 'Taking these changes and obvious duplications into account, it appears the rough draft was revised by Salot so the posted notice read: 6 The findings in this paragraph are based on the testimony of Verna Fukunaga, who impressed me as a sincere, honest witness, Davis did not testify 7 This finding is based on Goold's undisputed testimony , which I credit Pest so testified Goold and Moriguchi found the rough draft in the wastebasket at the Kona shop on the morning of January 4 1983 (the posted notice was re- moved by Pest shortly before noon on January 4, 1983 , and was not pro- duced at the hearing) Pest testified she wrote the rough draft and dis- carded it after it was read back to Salot and a revised draft was prepared at his direction for posting 875 Attention All Employees All pay raises are cancelled in conformance with the attached Longshoremen union letter requesting no changes be made Each employee will be reviewed individually as to whether he/she will be retained as an employee The matter of union representation and possible dis- missal of some and or all employees has been turned over to the company's legal dept You will be noti- fied when this situation is resolved. Both Pest and the employee witnesses who testified to reading the posted notice10 agreed the language just set forth was contained in the posted notice. The employee witnesses claim the posted notice con- tained the lined-through language of the rough draft stat- ing "Any employee joining a union will be fired " Pest denied that language appeared in the posted notice, stat- ing Salot deleted that language in dictating the final ver- sion of the notice. Salot corroborated her testimony. The fact the language in question was lined through on the rough draft lends credence to Pest's testimony she eliminated it from the final draft at Salot's direction. I therefore find the posted notice did not contain the state- ment "Any employee j oining a union will be fired," fur- ther finding the employee witnesses who testified to its inclusion received that impression from a reading of the posted notice's language to the effect each employee was going to be reviewed as to whether or not he/she would be retained in the Respondent's employ and some or all of them might be terminated thereafter and their reading of the rough draft's language to the effect those employ- ees whose union membership was established would be terminated. I therefore find and conclude the posted notice read as the revised version set out above indicates Sometime after the removal of the notice on January 3, 1983, Salot telephoned the Kona shop from Los Ange- les and spoke to Moriguchi.11 Salot asked Moriguchi why the employees wanted union representation; Mori- guchi replied he could not discuss the matter; Salot asked him who could discuss it; and Moriguchi referred him to the union organizer , Johnson. t 2 Moriguchi stated Salot went on to say, inter alia, he would terminate any employees he learned were in- volved with the Union; he would refuse any demands the Union advanced; and he would replace any employ- ees who went on strike in support of any union demands. 1 ° It is undisputed the notice and a copy of one of the Union's Decem- ber 28, 1982 letters (the one which notified the Respondent the Union had filed a petition for certification , expressed the hope a contract could be negotiated amicably, and expressed the hope the Respondent would respect the right of the employees to form a union and bargain collective- ly with the Respondent through that union and avoid litigation) was posted the evening of January 3 , 1983, and read by all the employees but Pubre the following morning (Pubre was off work between January 3-10, 1983, due to illness) 11 Salot conceded he called Mortguchi that day in an effort to learn whether he was correct in suspecting Wayne Fukunaga orchestrated the employee effort to secure union representation to secure revenge over his discharge 12 The testimony of Salot and Moriguchi was essentially corroborative concerning this portion of their conversation 876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Salot stated he told Moriguchi he could not understand why the employees would seek union representation since their wage scales were in line, the Union could not force him to give raises or anything else, and if the em- ployees struck, he had the right to replace them; denying he made the statements attributed to him by Morigucht. I credit Moriguchi's testimony. Moriguchi is currently employed by the Respondent, and testified in an earnest, sincere manner I am convinced he related Salot's state- ments' in language accurately reflecting Salot's words.13 I therefore find and conclude in the course of his Janu- ary 4, 1983 conversation with Jay Moriguchi Salot stated he would terminate any employees he found were in- volved with the Union; he would refuse to make any concessions concerning any demands the Union made for improvements in wages, etc ; and he would replace any employees who struck to secure such concessions. On January 7, 1983, Verna Fukunaga received written notice she was terminated. The notice did not show the reason therefor. Verna contacted Davis and asked him why she was terminated. He told her to contact either Warren (at Kauai) or Salot (in Los Angeles). Verna tele- phoned Warren at Kauai, Warren refused to give her a reason and stated she would have to talk to Salot. Verna asked Warren where she could reach Salot; Warren re- fused to supply Verna with Salot's whereabouts or how to reach him. Verna again telephoned Davis and related what Warren said. Davis advised her she had been termi- nated for insubordination "and other reasons." Verna's personnel folder contains the entry Verna was terminated because there were "too many employees"; a document the Respondent filed with the Hawaii Depart- ment of Labor when Verna applied for unemployment benefits states she was terminated because the Kona shop was overstaffed; Salot testified at one point the shop was overstaffed by one with Pest's arrival, since he anticipat- ed Verna would resign when her husband was dis- charged; at another point, Salot testified Verna was ter- minated because of her attitude; at still another point, Salot said Verna was terminated because she was part of "the Wayne Fukunaga clique." On the date Verna was terminated (January 7, 1983), Pest and Davis were employed at the Kona shop as co- managers; Pubre was off ill; and only Goold, Moriguchi, and Perkins were actively employed. The employee complement thus consisted of five active employees and one off ill (as contrasted with the earlier complement of eight active employees (Wayne Fukunaga, Debbie Free- man, Verna Fukunaga, Kelly Goold, Dana Henriquez, Jay Moriguchi, Diana Perkins, and Raylene Pubre)) Pubre returned to work on January 10, 1983. On Janu- ary 19, 1983, the Respondent hired employee Alan Mat- sumoto. On January 23, 1983, the Respondent hired an- other new employee, Renee Fukumoto. On January 29, 1983, Pest's fiance, Kraig Kerley, reported for work at the Kona shop. The Kona work force on the latter date consisted of nine employees, with two of the nine work- 18 That Salot intended to discharge those employees he found to be active supporters of the Union is further indicated by Pest's recording, in the original draft of the notice, of what she understood to be Salot's de- sires, i e, "Any employee joining a union will be fired " ing halftime-20 hours per week each (Matsumoto and Fukumoto). Thus by January 29, 1983, the work force at Kona approximated the same number of employees em- ployed during Wayne Fukunaga's tenure. Following Davis' and Pest's December 26, 1982 as- sumption of their duties as comanagers of Kona shop, Goold's attendance record steadily worsened Goold gave Pest a number of excuses for his absences.14 In mid-January 1983, Pest warned Goold he was taking too much time off; Goold replied he would make up the lost time.15 She' complained to Salot about Goold's frequent absences and uncooperative attitude,16 and Salot suggested she go along with Goold until Kerley arrived. Kerley arrived near the end of January 1983. By then, Goold had failed to work 25 hours of the total number of hours he was scheduled to work that month and =Pest had lost patience both with Goold's work performance and his casual attitude towards his job 17 Armed with Salot's authorization to terminate Goold after Kerley's arrival, when Goold on February 3, 1983, telephoned Pest at the shop about 11 a.m. and told her he was unable to come to work as scheduled (at 11:30 a.m.), Pest told him if he did not report as scheduled not to come in again. Goold failed to report and was termi- nated. In March 1983, Pubre quit the Respondent's employ; that same month, Sandra Yamaguchi was hired, in April 1983, the Respondent hired Charlene Miyasaka In the interim, the employment of Alan Matsumoto terminated and another employee, Joe Palacat, was hired and termi- nated. Thus by April 1983, only Perkins and Moriguchi remained of the five employees who provided Local 142 with signed authorization cards at the time Local 142 re- quested the Respondent recognize and bargain with it. 14 The illness of his twin 6-month-old sons, his wife's inability to drive the family car (she did not possess a driver' s license), an eye infection, car breakdown, etc 15 The employees were paid a monthly salary and the Respondent fol- lowed the practice of allowing employees who missed work to make up lost time at a later date 16 When asked to stay on beyond the end of his scheduled shift to fill in for Pubre (who called in ill) and make up some of his lost time, Goold refused, he frequently reported late for work and overstayed meal and rest breaks, etc. 17 On one occasion, scheduled to report for work at 11 30 a in, Goold called about 10 am to state he could not report until 5 30 p m., on a second occasion, scheduled for a !-hour dinner break, Goold was gone I hour and a0 minutes, on a third occasion, after leaving for a 1-hour lunchbreak at 12 30 p m , Goold telephoned about 1 10 p in to state he was unable to return and stated he would quit if Pest insisted he return (she relented in her demand that he report and told him to come in as scheduled at 11 30 a in the following day), on a fourth occasion, Davis and Pest left Goold in sole charge of the shop about 7 p in after the two of them had worked a 12-hour day, with the understanding Goold would man the shop to its closing time, 9 p in , and found a letter pushed under the door of the shop by an angry customer when they arrived for work the following morning, complaining the customer arrived at the shop to pick up some photos at approximately 7 30 p in and found the shop closed KONA 60 MINUTE PHOTO B. Analysis and Conclusions 1. Unit The complaint alleged, the answer admitted, and I find at all pertinent times the following constituted a unit ap- propriate for collective-bargaining purposes within the meaning of Section 9 of the Act: All regular and regular part-time employees of Kona 60 Minute Photo employed at its Kailua- Kona, Hawaii location, including lab technicians and sales clerks, but excluding all confidential em- ployees, clerical employees, professional employees, supervisory employees, and guards, as defined in the Act. 2. Local 142's representative status within the unit On December 1, 1982, all seven of the Respondent's employees within the unit signed cards authorizing Local 142 to represent them for the purpose of bargaining col- lectively with the Respondent concerning their rates of pay, wages, hours, and working conditions. The Respondent contends the cards of five of the seven should be invalidated because their supervisor Wayne Fukunaga drove his wife Verna to Local 142's office when she went there to learn what the Union had to offer the employees and how they could secure repre- sentation, was present during her conference with a union representative at the union office, drove her to the shop, was present when she solicited and secured the sig- natures of five employees to union authorization cards and signed one herself, and answered questions addressed to him about Local 142 during the time his wife solicited and secured the signatures of the five employees in ques- tion. The Respondent argues Wayne was an authority figure to the employees (he was their supervisor when they and he worked for a previous employer and hired them for their jobs) and therefore his presence while his wife solicited and secured their signatures to the cards may not have been their exercise of a free choice; i.e., they may have signed rather than risk his displeasure and possible economic retaliation for not signing, since it was his wife requesting their signatures and he had accompa- nied her to the Union's office and to the shop when she went to the former to secure information and to the latter to secure their authorization for union representa- tion. The General Counsel contends the evidence fails to es- tablish the employees were not exercising a completely free choice when they signed their respective union au- thorization cards. Both the facts and the applicable law supports the General Counsel's position. The employees decided to seek union representation due to fears about their economic future, after Wayne Fukunaga told them of his difficulties with Salot and the likelihood of his termination; they designated Moriguchi to contact Local 142 and find out how to go about se- curing its representation and Verna made the union con- tact, secured the union authorization cards and distribut- ed them because Moriguchi was unable to do so; Wayne Fukunaga drove his wife to the Local 142 office and to 877 the shop at her request, because she was timid about going there alone, Wayne Fukunaga made no effort to persuade any of the employees to sign a union authoriza- tion card but rather told them that was a decision they had to make; and Fukunaga's uncertain employment status made it unlikely any of the employees feared eco- nomic retaliation from him in the event they refused to sign a card. The Board, with court approval, has applied two tests in determining whether a union claim of majority repre- sentative status within an employee unit has been tainted by supervisory conduct, namely, whether the conduct misled the employees into believing their employer fa- vored the union the supervisor advocated and/or wheth- er the conduct caused the employees to fear economic retaliation by the supervisor if they did not support that union. 18 Those cases in which the claim of majority representa- tive status was rejected invariably involved employee- signed cards or votes following overt supervisory efforts to secure that signature or vote, such as actual or implied threats of economic retaliation if the employee did not support the union favored by the supervisor, direct solic- itation of the employee signature or vote by a supervisor, etc By the same token, the Board with court approval has invariably sustained union claims of majority repre- sentative status where the challenge thereto was based on passive supervisory conduct, such as supervisory at- tendance at a union meeting, as well as supervisory con- duct falling short of coercion, such as supervisory ex- pression of personal prounion views unaccompanied by actual or implied threats or promises, or supervisory ex- pression of prounion views accompanied by injunctions to employees to follow their own free will in deciding whether or not to sign or vote for union representation. The facts of this case place it in the latter category; Wayne Fukunaga's passive presence in the shop while Verna as Moriguchi's substitute carried out the earlier employee decision to seek union representation, particu- larly where, as here, Fukunaga made no effort to per- suade any employee to sign a card and in response to employee questions repeatedly advised them to decide for themselves if they wanted Local 142 as their repre- sentative. Such conduct does not establish Fukunaga either misled employees into believing the Respondent favored their representation by Local 142 nor gave them any cause to fear economic retaliation by Fukunaga in 1 ,8 ITT Corp v NLRB, 712 F 2d 40, rehearing denied 718 F 2d 20 (2d Cir 1983), Fall River Savings Bank v NLRB, 649 F 2d 50 (1st Cir 1981), Catholic Medical Center v NLRB, 620 F 2d 20 (2d Cir 1980), NLRB v San Antonio Portland Cement Co, 611 F 2d 1148 (5th Cir 1980), WKRG- TV v NLRB, 470 F 2d 1302 (5th 'Cir 1973), Turner's Express v, NLRB, 456, F 2d 289 (4th Cir 1972), NLRB v Boyer Bros, 448 F 2d 555 (3d Cir 1971), NLRB v Hawthorne Aviation, 406 F 2d 428 (10th Car 1969), NLRB v Heck's, Inc, 386 F 2d 317 (4th Cir 1967), NLRB v Hamilton Plastic Molding Co, 312 F2d 723 (6th Cir 1963), Bally's Park Place„ 265 NL)2B 703 (1982), Stewart Sandwich Services, 260 NLRB 805 (1982), Med- ica/Investors Assn, 260 NLRB 941 (1982), Melba Theater, 260 NLRB 18 (1982), American Pistachio Corp, 249 NLRB 1193 (1980), Kul Rate Kid & Shop Kwik, 246 NLRB 106 (1979), Dexter IGA Foodliner, 209 NLRB 369 (1974), Luby Leasing, 198 NLRB 951 (1972), Montgomery Wara Co., 197 NLkB 519 (1972), Glomac Plastics, 194 NLRB 406 (1971), Stevenson Equipment Co, 174 NLRB 865 (1969) 878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the event they failed or refused to sign cards authorizing Local 142 to represent them. I therefore find and conclude that about December 1, 1982, a majority of the Respondent's employees within the unit specified above freely designated and authorized Local 142 to act as their representative for the purpose of bargaining collectively with the Respondent concern- ing their wages, rates of pay, hours, and working condi- tions. 3. The alleged December 30, 1982 interrogation The complaint alleged the Respondent violated Sec- tion 8(a)(1) of the Act by Davis' December 30, 1982 in- terrogation of employees concerning their union activi- ties. I find that on the above date in question Davis told Verna Fukunaga -that Davis aad Pest received and read Local 142's letter claiming majority representative status within a unit of the Respondent's employees and request- ing recognition and that Davis secured from Verna and Goold confirmation all the employees authorized Local 142 to represent them for collective-bargaining purposes. It is the teaching of the Rossmore House case19 that in- quiries concerning claims by a union of representative status are not violative,of the Act, so long as such inquir- ies are unaccompanied by threats or promises. Since Davis' inquiries were lunited to verification of Local 142's claim of majority representative status among the employees and were not accompanied by any threats of retaliation for seeking Local 142 representation nor promises of any benefits for desisting from such sup- port, I find his inquiries were not violative of the Act. 4. The alleged January 1983 threats and interrogation The complaint alleged the Respondent violated Sec- tion 8(a)(1) of the Act on January 4, 1983, by threatening employees with discharge and loss of benefits for seeking Local 142 representation; by telling an employee it was futile to seek such representation, and by interrogating an employee about the employees' union activities. These allegations are based on the language of the em- ployee notices Pest prepared at Salot's direction on Janu- ary 3, 1983, and Salot's remarks to Moriguchi in a tele- phone conversation the next day, following the posting of the final version of the employee notice dictated by Salot on January 3, 1983. It is clear on January 3, 1983, in the course of a tele- phone conference, Salot directed Pest to prepare a notice to the employees and to post that notice alongside one of the letters she received from Local 142,20 so the em- ployees could read the two documents on arriving at work the following morning; that• the first draft of the notice prepared by Pest at Salot's dictation stated, inter alia, the Respondent was going to discharge any and all employees who sought representation by Local 142; that when Pest read back to Salot the language of the first draft she had prepared to reflect that message Salot dic- tated a revised notice which omitted that threat and 19 269 NLRB 1176 (1985) 205eein 7 stated his intentions in more ambiguous terms, i.e., that each employee would be "reviewed" to determine whether he or she would be "retained" and that the em- ployees would be advised later whether any of them would be retained and what the Respondent's response was going to be to Local 142's request for recognition and bargaining; and that the wage increase Salot prom- ised the employees on December 28, 1982, was canceled "in conformance with" Local 142's request. I have entered findings above that, following the post- ing of the final version of the employee notice on Janu- ary 4, 1983, Salot telephoned the shop from his Los An- geles office, spoke to Moriguchi, questioned Moriguchi about the reasons the employees were seeking union rep- resentation, stated he would discharge any employee active in seeking representation by Local 142; stated he would refuse to make any concessions in response to any demands for improvements in rates of pay, wages, hours, or working conditions made on behalf of the employees by Local 142; and stated he would discharge any em- ployee who went on strike to secure such improvements. With court approval, the Board consistently has held an employer interferes with his employees' right to seek and secure union representation and thus violates Section 8(a)(1) of the Act by threatening to discharge those of his employees who seek such representation.21 By his January 4, 1983 remarks to Moriguchi, his Jan- uary 3, 1983 dictation to Pest, and the posted notice, Salot indicated he intended to discharge any and all of the employees who were seeking representation by, and the protection of, Local 142. By such threats, I find the Respondent violated Sec- tion 8(a)(1) of Act. With court approval, the Board also has held an em- ployer violates Section 8(a)(1) of the Act by attempting to discourage employee support of a union by blaming the union whose representation its employees seek for the cancellation or deferral of a wage increase or benefit promised or scheduled prior to the time the employer learned of its employees' interest in such representa- tion. 22 I find Salot on January 4, 1983, canceled the wage in- creases he promised the employees on December 28, 1982, to demonstrate only he, and not the Union, ,could improve their wages, etc, and to punish them for seek- 21 Ahrens Aircraft v NLRB, 703 F2d 23 (1st Cir 1983), NLRB v Davis, 642 F.2d 350 (9th Cir 1981), NLRB Y, International Medication Systems, 640 F 2d 1110 (9th Or 1981), NLRB v Anchorage Timer, 637 F 2d 1359 (9th Cir 1981), Belcher Towing Co, 265 NLRB 1258 (1982), United Sanitation Services, 262 NLRB 1369 (1982), L D Brinkman South- east, 261 NLRB 204 (1982), Banner Tire Co, 260 NLRB 682 (1982), Ken's IGA, 259 NLRB 305 (1981), etc 22 NLRB v Industrial Erectors, 712 F 2d 1131 (7th Cir 1983), NLRB v Otis Hospital, 545 F 2d 252 (1st Cir 1976), Progressive Supermarkets, 259 NLRB 512 (1981), Grimes Mfg, 250 NLRB 254 (1980), Bert Wolfe Ford, 239 NLRB 555 (1978), Crago Gear & Machine Works, 236 NLRB 539 (1978), Liberty Nursing Home, 236 NLRB 456 (1978), American Commer- cial Bank, 226 NLRB 1130 (1976), Franklin Parish & Broadcasting House, 222 NLRB 1133 (1976), also see Southern Molding v NLRB, 715 F 2d 1069 (6th Cir 1983), NLRB v. Kiawah Island Co, 650 F 2d 485 (4th Cir 1981), NLRB v Chatfield-Anderson Co, 606 F 2d 266 (9th Cir 1979), Plasticrafts v NLRB, 586 F 2d 185 (10 Cir 1978), NLRB v Longhorn Transfer Service, 346 F,2d 1003 (5th Cir 1965), Electric Hose & Rubber Co, 262 NLRB 186 (1982), Centre Engineering, 253 NLRB 421 (1980) KONA 60 MINUTE PHOTO mg union representation and not, as he alleged in his an- nouncement, to comply with the Union's "boilerplate" request that he not retaliate against the employees for seeking union representation. I find this to be his motive by his overall conduct on learning of the employee effort to secure union representation; i.e., his initial announce- ment to Pest on January 3, 1983, of his intention to dis- charge any and all employees who sought such represen- tation, his repeat of that intention to Moriguchi on Janu- ary 3, 1983, and his other acts and conduct detailed here- after. I therefore find and conclude by Salot's January 4, 1983 cancellation of a previously promised wage increase immediately after learning of the employees' interest in union representation, Salot was attempting to discourage the employees in the exercise of their right to seek such representation and thereby violated Section 8(a)(1) of the Act.28 Turning next to the issue of whether the Respondent violated Section 8(a)(1) of the Act by Salot telling Mori- guchi he would refuse to make any concessions on re- ceiving any requests from Local 142 for improvements in the employees' wages, etc., and that he would replace any employees who went on strike in an effort to secure such improvements, the Board has repeatedly held such expressions violative of the Act,24 and I so find here Lastly, there is the issue of whether Salot's January 4, 1983 interrogation of Moriguchi concerning the employ- ees' union activities was violative of the Act. While the Board has held interrogations unaccompanied by threats or promises is not violative of the Act (see fn. 16 above), it has also held when such interrogation is accompanied by threats, the interrogation is violative of Section 8(a)(1) of the Act.25 Since I have entered findings above that Salot's January 4, 1983 interrogation of Moriguchi was so accompanied, I find by that interrogation the Re- spondent violated Section 8(a)(1) of the Act. 5 The layoff/terminations Verna Fukunaga was laid off or terminated by the Re- spondent at Salot's direction on January 7, 1983. Kelly Goold was discharged by Joyce Pest on February 3, 1983. 22 I find the cases cited by the Respondent-NLRB v. Dorn's Transpor- tation, 405 F 2d 706 (2d Cir 1969), and J. J Newberry Co. P. NLRB, 645 F 2d 148 (2d Cir 1981), inapphcabale In the former case, the court clear- ly stated, This is not a situation where the employer has by public an- nouncement specifically advised the employees that the union is causing them to lose a wage increase they would otherwise have received", in the latter case, the court found the employees were completely unaware of an employer plan conceived prior to the employer's receipt of a union petition for representation and delayed its implemenation during the pendency of the petition on advice of counsel to avoid a possible charge of attempting to influence the employees' votes in the subsequent elec- tion In this case there was a public announcement of the wage increase cancellation and the employees were informed they would be receiving a wage increase after the first of the year 24 Queen Mary Restaurants Corp v NLRB, 560 F 2d 403 (9th Cir 1977), NLRB v Four Winds Industries, 530 F 2d 75 (9th Cir 1976), Cardio Data Systems, 264 NLRB 37 (1982), Industry Products Co, 251 NLRB 1380 (1980), Brownsboro Hills Nursing Home, 244 NLRB 269 (1979), St Anthony's Center, 227 NLRB 1777 (1977) 25 Certain Teed Corp, 269 NLRB 293 (1984); Rowland Trucking Co, 270 NLRB 247 (1984) 879 I find that both Verna and Goold actively sought Local 142 representation and protection by signing cards authorizing Local 142 to represent them and soliciting other employees to do the same. While the Respondent denied knowing either were union supporters prior to their layoff/termination and discharge, that denial is in- credible,26 and I find to the contrary. The issue still remains whether Verna and Goold were laid off or terminated because of their union activities. Certainly the timing of Verna's layoff/termination, 4 days after Salot learned of the employee effort to secure union representation and protection--Salot's union animus, demonstrated by his January 3 and 4, 1983 state- ments set out above; Salot's belief Verna was aiding her husband in the employee effort to secure union represen- tation in order to secure revenge over the latter's dis- charge; the fact at the time of her layoff/termination, Verna was,a senior and experienced employee and, her' layoff/termination left the shop understaffed rather than overstaffed; and the conflicting reasons Salot and other management representatives gave for the layoff/ter- mination make a prima facie case supporting a finding and conclusion Verna was laid off or terminated because of her activities in bringing in the Union, not for the var- ious and conflicting reasons advanced therefor. In the end, the Respondent abandoned all but one of the various reasons it advanced in the course of the hear- ing for the layoff or termination-finally contending Verna was laid off in a reduction of the work force planned prior to learning of any interest among the em- ployees in union representation While evidence shows the Respondent planned to re- place Wayne Fukunaga with Davis and Verna Fukunaga with Pest following Wayne's discharge, further evidence shows the latter replacement was predicated on the belief Verna would resign when her husband was dis- charged and the expectation other experienced employ- ees would not resign. In fact, Verna did not resign when her husband was discharged, two other experienced em- ployees did resign prior to Verna's discharge, and a third experienced employee was off work ill at the time Verna was laid off. Verna was a senior, experienced, and versa- tile employee. Her layoff left the shop understaffed rather than overstaffed, and several new employees were hired shortly after Verna's discharge. These factors undercut the Respondent's contention the shop was overstaffed at the time Verna was laid off and fail to rebut the General Counsel's prima facie proof Verna was laid off because of her union activities.27 26 Pest conceded in her testimony' Davis relayed to her the responses he received from Verna and Goold to his inquiries concerning the extent of employee support of Local 142 prior to Davis' and Pest's conference with Salot on January 3, 1983, at which they read him the two Local 142 letters and he dictated his response thereto I find it highly unlikely in the course of their January 3, 1983 conference Davis did not communicate that information to Salot In any event, Salot testified on learning the content of the two Local 142 letters of January 3, 1983, he believed the whole union organizational effort was inspired by Wayne Fukunaga to secure revenge over his firing, and carried out with the assistance of Verna and Goold 27 See Wright Line, 251 NLRB 1083 (1980) 880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On the basis of the foregoing, I find and conclude the Respondent by Salot directed Verna's layoff/termination on January 3, 1983, because Salot believed she was in- strumental in the employee effort to secure union repre- sentation and thereby violated Section 8(a)(1) and (3) of the Act.28 With respect to Goold, while I find and conclude Salot believed Goold also was active in the employee effort to secure union representation at the behest of his mentor, Wayne Fukunaga, I find the Respondent effec- tively rebutted any inference this was the reason for his discharge by proof Pest sought and secured Goold's dis- charge because of his attitude and work performance, not because of his union activity. The facts show Goold's work performance was unsatisfactory through- out the month preceding his discharge, that he was caus- ing Pest considerable trouble, and that she sought and se- cured Salot's authorization for that discharge and accom- plished it for those reasons, not because of his union ac- tivities. I therefore find and conclude Goold was discharged for cause, not for engaging in union activity, and will recommend dismissal of those portions of the complaint alleging the Respondent discharged Goold because of his union activity, thereby violating Section 8(a)(1) and (3) of the Act. 6. The alleged refusal to bargain Relying on NLRB v. Gissel Packing Co, 395 U.S. 575 (1969), the General Counsel contends the Respondent should be held to have failed to bargain in good faith in violation of Section 8(a)(1) and (5) of the Act and re- quired to recognize and bargain with Local 142. While the Respondent is correct in asserting an em- ployer may fail or refuse to comply with a union request for recognition and bargaining based on a card majority among an appropriate unit of its employees until and unless that status has been demonstrated in a Board-con- ducted election'29 the application of that doctrine is lim- ited to cases wherein the employer has not committed unfair labor practices which may be construed as efforts to weaken or destroy the union's support among the unit employees. a o In this case, findings have been entered that the Re- spondent replied to Local 142's assertion of majority rep- resentative status and request for recognition and bar- gaining with a number of unfair labor practices which had the effect of undermining Local 142's majority rep- resentative status among its employees, thereby demon- strating its bad faith and violation of Section 8(a)(1) and (5), and I so find and conclude The next question is whether those unfair labor prac- tices met the tests devised by the Supreme Court in the Gissel case to determine whether they warrant the issu- ance of a bargaining order. At the time the Respondent received Local 142's re- quest for recognition and bargaining, Local 142 had in its 28 McCarty & Son, 268 NLRB 1136 (1984), Southwire Co, 268 NLRB 726 (1984) 29 Summer & Co v NLRB, 419 U S 301 (1974) 30 NLRB v Dadco Fashion, 632 F 2d 493 (5th Cir 1980) possession cards signed by all five of the employees within an admittedly appropriate unit of its employees. I find that those cards were signed freely by the five em- ployees, and accorded with their desires Immediately following its receipt of Local 142's request for recogni- tion and bargaining based on those cards, the Respond- ent repeatedly threatened its employees with discharge for seeking union representation, canceled a promised wage increase because the employees sought union rep- resentation, advised them it would be futile to secure such representation because it would not make any con- cessions and would replace any of them who struck to secure any concessions, and terminated or laid off one of the leading union proponents among the employees be- cause of her role in seeking union representation of the employees. I find such flagrant unfair labor practices sufficiently "outrageous," "pervasive," and destructive of Local 142's majority representative status within the unit, their effect cannot be mitigated by the traditional remedy of an election order, and therefore I shall recommend the issuance of an order directing the Respondent to recog- nize and bargain with Local 142 at its request concerning the rates of pay, wages, hours, and working conditions of its employees within the unit. CONCLUSIONS OF LAW 1. At all pertinent times the Respondent was an em- ployer engaged in commerce in a business affecting com- merce and Local 142 was a labor organization within the meaning of Section 2 of the Act. 2 The following at all pertinent times constituted and constitutes a unit appropriate for collective-bargaining purposes within the meaning of Section 9 of the Act- All regular and regular part-time employees of Kona 60 Minutes Photo employed at its Kailua- Kona, Hawaii location, including lab technicians and sales clerks, but excluding all confidential em- ployees, clerical employees, professional employees, supervisory employees, and guards, as defined in the Act. 3 Since December 1, 1982, Local 142 had represented a majority of the Respondent's employees within the above specified unit. 4 The Respondent violated Section 8(a)(1) of the Act by: a. Stuart Salot's January 3 and January 4, 1983 threats to discharge all and any employees because of their union activities b Its January 4, 1983 cancellation of a promised wage increase because of its employees' union activities. c Stuart Salot's January 4, 1983 statements to an em- ployee he would not make any concessions to any re- quests by Local 142 for improvements in the employees' rates of pay, wages, or working conditions and would re- place any employees who went on strike in an effort to secure such concessions d Stuart Salot's interrogation of an employee on Janu- ary 4, 1983, concerning the employees' union activities. KONA 60 MINUTE PHOTO 5 The Respondent violated Section 8(a)(1) and (3) of the Act by laying off or terminating Verna Fukunaga be- cause of her union activities. 15. The Respondent violated Section 8(a)(1) and (5) of the Act by failing and refusing to recognize and bargain with Local 142 at its request but instead by unfair labor practices attempting to destroy its employees' support of that organization. 7. The unfair labor practices set out above warrant the issuance of an order directing the Respondent to bargain with Local 142 at its request concerning the rates of pay, wages, hours, and working conditions of the unit em- ployees. 8. The Respondent did not otherwise violate the Act. 9 The aforesaid unfair labor practices affected and affect commerce as defined in Section 2 of the Act. THE REMEDY Having found the Respondent committed various unfair labor practices, I shall recommend it be directed to cease and desist therefrom and take certain affirmative action designed to effectuate the purposes of the Act. Having found the Respondent violated the Act by its January 4, 1983 cancellation of wage increases promised to the employees on December 28, 1982, 1 shall recom- 881 mend the Respondent be directed to make whole the em- ployees for the wages they would have received but for that cancellation, with interest on the sums due, with the sums due calculated in the manner set forth in F. W Woolworth Co., 90 NLRB 289 (1950), and interest there- on computed in accordance with the formula set out in Florida Steel Corp., 231 NLRB 651 (1977), and Isis Plumbing Co., 138 NLRB 716 (1962). Having found the Respondent violas ed the Act by laying off or terminating Verna Fukunaga, I shall recom- mend the Respondent be directed to offer her reinstate- ment to her former position with seniority and all other rights restored, and to make her whole for any seniority, wage, and benefit losses she suffered by virtue of the dis- crimination against her, with the amount due calculated in the manner set out above and interest thereon comput- ed in accordance with the formula set out above. Having found the Respondent violated the Act by fail- ing and refusing to recognize and bargain collectively with Local 142 as the duly designated representative of a majority of its employees within an appropriate unit, I shall recommend the Respondent be directed to recog- nize and bargain with Local 142 at its request concerning the rates of pay, wages, hours, and working conditions of its employees within the unit set out heretofore. [Recommended Order omitted from publication.]