Lewis Mechanical And Metal Works, Inc.

514 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Lewis Mechanical and Metal Works, Inc. and Sheet Metal Workers International Union, AFL-CIO, Local No. 60. Cases 19-CA-18534, 19-CA- 18683, and 18-CA-18700 31 August 1987 DECISION AND ORDER BY MEMBERS BABSON, STEPHENS, AND CRACRAFT On 28 April 1987 Administrative Law Judge William J. Pannier III issued the attached 'decision. The Respondent filed exceptions and a supporting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings, I and conclusions, to modify the remedy,2 and to adopt the recommended Order as modified and set forth below.3 In agreeing with the judge that the Respondent violated Section 8(a)(3) and (1) of the Act by refus- ing to hire Michael Pettaway, we apply the analy- sis set forth in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transporta- tion Management Corp., 462 U.S. 393 (1983). We find that the General Counsel established a prima facie case by showing that Pettaway's union mem- bership was a motivating factor in the Respond- ent's decision not to hire him. The General Coun- sel presented evidence that Pettaway, a union member, applied for employment with the Re- spondent, that the Respondent knew of his union membership, and that the Respondent expressed opposition to hiring union members. In a letter to the Idaho Human Rights Commission, the Re- spondent stated that if the union members were willing to accept the consequences of withdrawal i 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 Interest will be computed in accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987) Interest on amounts accrued prior to 1 January 1987 (the effective date of the 1986 amend- ment to 26 U S C § 6621) shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977) 3 Because this case involves 8(a)(1) and (3) violations directed against applicants for employment, we shall modify the judge's recommended Order to include the word "applicants" in addition to the word "employ- ees" already included We shall also issue a new notice to include this change as well as to add a word the judge inadvertently omitted from his notice from the Union, and if the Respondent had the work, it would hire them. In the letter, the Re- spondent also stated that Pettaway had never indi- cated that he would accept those conditions. The burden then shifted to the Respondent to show that it would not have hired Pettaway even in the absence of his union activities. When called by the General Counsel, Respondent President Leland Lewis testified that neither in his letter to the Commission nor in his prehearing affidavit had he said that he had not hired Pettaway because of the lack of work. He also stated that he was not contending that the lack of work was the reason for not hiring Pettaway. However, during the ex- amination later by the Respondent's counsel, Leland Lewis stated that the reason he had not hired Pettaway was that the Respondent's work- load had not developed to the point where they needed Pettaway's expertise. The judge found that the answers were internally contradictory and not susceptible of belief. In discrediting this testimony, the judge found that the Respondent had given no credible evidence that Pettaway would not have been offered employment even if he had with- drawn from the Union. Because the Respondent failed to meet its burden of rebutting the General Counsel's prima facie case and also failed to estab- lish an affirmative defense under Wright Line, its refusal to hire Pettaway violated Section 8(a)(3) and (1) of the Act. ORDER The National Labor Relations Board orders that the Respondent, Lewis Mechanical and Metal Works, Inc., Idaho Falls, Idaho, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Telling applicants or employees that it is futile to support Sheet Metal Workers International Union, AFL-CIO, Local No. 60, or any other labor organization, by saying that it will never be a union shop. (b) Telling applicants or employees, expressly or by implication, that they must withdraw from union membership to obtain employment. (c) Interrogating applicants or employees con- cerning their union membership and sympathies. (d) Refusing to hire applicants or employees until they have withdrawn from union membership. (e) 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 neces- sary to effectuate the policies of the Act. 285 NLRB No. 54 LEWIS MECHANICAL WORKS 515 (a) Make whole Michael Pettaway for any loss of pay he may have suffered as a result of the un- lawful refusal to offer him employment prior to August 1986 in the manner set forth in the remedy section of the judge's decision as modified above in fn. 2. (b) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its facility in Idaho Falls, Idaho, copies of the attached notice marked "Appendix."4 Copies of the notice, on forms provided by the Re- gional Director for Region 19, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately 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. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 4 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 " 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 tell applicants or employees that it is futile to support Sheet Metal Workers Interna- tional Union, AFL-CIO, Local No. 60, or any other labor organization, by saying that we will never be a union shop. WE WILL NOT tell applicants or employees, ex- pressly or by implication, that they must withdraw from union membership to obtain employment. WE WILL NOT interrogate applicants or employ- ees concerning their union membership and sympa- thies. WE WILL NOT refuse to hire applicants or em- ployees until they have withdrawn from union membership. 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 make whole Michael Pettaway for any loss of pay he may have suffered as a result of our unlawful refusal to offer him employment prior to August 1986, with interest on the amount owing. LEWIS MECHANICAL AND METAL WORKS, INC. Max D. Hochanadel, for the General Counsel Steven A. Gardner (Gardner & Higgins), of Idaho Falls, Idaho, for the Respondent. Paul F. Masi, of Sepulveda, California, for the Charging Party. DECISION STATEMENT OF THE CASE WILLIAM J. PANNIER III, Administrative Law Judge. I heard this case in Pocatello, Idaho, on 12 February 1987. On 28 November 19861 the Regional Director for Region 19 of the National Labor Relations Board issued an order consolidating cases, consolidated complaint, and notice of hearing-based on the unfair labor practice charges filed on 11 August in Case 19-CA-18534, on 20 October in Case 19-CA-18683, and on 27 October, amended on 29 October, in Case 19-CA-18700- alleging violations of Section 8(a)(1) and (3) of the National Labor Relations Act, 29 U.S.C. § 151 et seq. All parties have been afforded full opportunity to appear, to intro- duce evidence, to examine and cross-examine witnesses, and to file briefs. Based on the entire record, on the memorandum brief filed on behalf of the General Coun- sel and the posttrial brief filed on behalf of Respondent, and on my observation of the demeanor of the witnesses, I make the following FINDINGS OF FACT 1. JURISDICTION Lewis Mechanical and Metal Works, Inc. (Respond- ent) is a State of Idaho corporation with office and place of business in Idaho Falls, Idaho, where it engages in the business of mechanical, heating, air conditioning, ventila- tion, refrigeration, and sheet metal contracting. During the 12-month period prior to issuance of the consolidated complaint, a representative period, Respondent, in the course and conduct of its business operations, had gross sales valued in excess of $500,000. During that same period, in the course and conduct of its business oper- ations, Respondent purchased and caused to be trans- ferred and delivered to its Idaho facilities goods and ma- ' Unless stated otherwise, all dates occurred in 1986 516 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD terials valued in excess of $50,000 either directly from sources located outside that State or from Idaho suppli- ers which, in turn, obtained those goods and materials di- rectly from sources outside the State of Idaho. There- fore, I conclude, as admitted in the answer, that at all times material, Respondent has been an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. fectuate that conduct." (Citations omitted.) Advanced In- stallations, 257 NLRB 845, 854 (1981), enfd. 698 F.2d 1231 (9th Cir. 1982). Given the absence of a credible le- gitimate reason, indeed the absence of any reason, for not hiring Pettaway and the presence of evidence dem- onstrating all elements of an unlawfully motivated refusal to hire, it follows that Respondent violated the Act by failing to hire him between May and August. II. THE LABOR ORGANIZATION INVOLVED At all times material, Sheet Metal Workers Interna- tional Union, AFL-CIO, Local No. 60 (the Union) has been a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Issues The principal allegation in this case is that Respondent refused to hire Michael Pettaway between May and August. Because it is undisputed that Respondent ulti- mately did offer him employment and inasmuch as, in this respect, the only remedy sought by counsel for the General Counsel, in his memorandum brief, is "to make whole Michael Pettaway for any loss of wages he may have incurred by Respondent's actions," there is no issue concerning the propriety of, or need for, a reinstatement order. In addition, the complaint alleges that Respondent vio- lated Section 8(a)(1) of the Act by various statements made to applicants for employment by Respondent's president and vice president during the months of April, May, June, and August. Most of these statements alleg- edly were questions concerning the applicants' union membership status and the problems they might encoun- ter if they failed to withdraw from union membership before coming to work for Respondent. The remaining alleged statements pertain to a remark that Respondent did not intend to have a union shop and, further, a state- ment that Respondent got into trouble every time that it "hired union " Most of the alleged unlawful statements attributed to Respondent's president and vice president are either conceded or uncontroverted. As discussed post, all of them are statements that "interfere with, re- strain or coerce employees in the exercise of the rights guaranteed in section 7" within the meaning of Section 8(a)(1) of the Act. Concerning to the failure to hire Pettaway, a prepon- derance of the evidence establishes all elements of an un- lawful refusal to hire: application, refusal, expected union support or sympathy, knowledge, animus, and motiva- tion. Big E's Foodland, 242 NLRB 963, 968 (1978); Hobo- ken Shipyards, 275 NLRB 1507, 1514 (1985). In the final analysis, Respondent advanced no reason for its refusal to offer employment to Pettaway from May to August. The only witness who testified concerning the subject was not generally reliable and he advanced reasons that, at other points in his testimony, he expressly conceded were not reasons for not offering a job to Pettaway. Of course, in assessing allegations of unlawfully motivated conduct, "the crucial inquiry must be directed to the state of mind of the official who made the decision to ef- B. The Evidence Respondent is a closely held corporation, with all its shares owned by members of the Lewis family. Similar- ly, all its officers are members of that family, with Leland L. Lewis serving as its president and with his brother, T. Lamont Lewis, serving as its vice president.2 After Respondent came into existence during August 1985, it was not an immediate success. For the first 3 months it garnered no business and during the winter of 1985-1986 its shareholders all accepted employment with other firms, for the most part with Ivie's, Inc. at its East- ern Idaho Regional Medical Center (EIRMC) project. However, by March and April Respondent had success- fully bid on some projects, one of which was the ShopKo Department Store in Pocatello, Idaho. Conse- quently, the shareholders began leaving their other em- ployment so that they could commence working for Re- spondent. Further, Leland Lewis testified that by April, "we were optimistic about the future, yes, to the point where we were maybe worried about being able to find people." Although both Leland and Lamont Lewis had been longstanding union members, Respondent has been non- union since its formation. During this period, Respondent has been paying its employees approximately $5 less per hour than union scale. Leland Lewis testified that he had been contacted on approximately five occasions by the Union concerning a collective-bargaining contract and "always felt that at sometime we would sign a union agreement . . . that some day when the economy and the budget and everything will turn around, we'll belong to the [U]nion." Similarly, in the course of replying to an internal union charge against him, Lamont Lewis stated, "As we [Respondent] develop it may come to a time in the short future that it will be to our advantage to sign a labor contract." Nevertheless, it is clear that there came a point in time when Lewis' attitude toward the Union began to sour. Respondent had been the subject of a state investigation concerning possible noncompliance with Idaho employ- ment law. At first, Leland Lewis testified that he "had no idea" if the Union had been responsible for initiating that investigation. But pressed further regarding the topic, he admitted that he had suspected that "somebody in the [U]nion was siccing the unemployment division on [R]espondent " Furthermore, in a handwritten letter to the Idaho Human Rights Commission (the Commission), Leland Lewis stated directly that "the Union has been 2 It is admitted that at all times material, Leland and Lamont Lewis had been supervisors within the meaning of Sec 2(11) of the Act and agents of Respondent within the meaning of Sec 2(13) of the Act LEWIS MECHANICAL WORKS harrassing [sic] our Company and we cannot afford a confrontation with the Union " Against this background unfurled the incidents at issue in this proceeding. On 16 April Pettaway and Andy Hall, both then members of the Union, approached Lamont Lewis regarding the possibility of employment Lewis testified that they discussed Respondent's pay rate and the applicants' personal and employment status, as well as their status as union members Lewis agreed that the subject of withdrawal from union membership had been discussed and, at one point, he had "just told them that they would have to make up their mind how they wanted to do it, because when you withdraw from a union, you have the possibility of fine and penalty, you lose your benefits, and you even lose your friendship."' Initially, Lamont Lewis admitted that, on 16 April, he also had asked whether Hall and Pettaway would have any problems with the Union if they were to come to work for Respondent because it was a nonunion compa- ny. But later he denied specifically having put that ques- tion to the two applicants during this conversation When asked, once more, if he had asked the question that he initially admitted and then denied having directed to Hall and Pettaway, Lewis answered, "That's hard to put in yes or no." He then was confronted with his pre- hearing affidavit, containing the statement- "At this point I asked Pettaway and Hall if they would have any prob- lems with the [U]nion if they were to come to work for [Respondent], as we were nonunion." Faced with his af- fidavit, Lewis conceded, "That's probably the way it was worded, yes, sir." Approximately 2 weeks later, Hall and Pettaway again talked about employment with Lamont Lewis, this time at the ShopKo site in Pocatello. Lewis testified, and Pettaway agreed, that the job had not been too far ad- vanced at that time and Lewis pointed out to the appli- cants that work was progressing more slowly than Re- spondent had anticipated It is undisputed that Pettaway pointed out specifically that he "had just completed working at ShopKo in Idaho Falls, which was a mirror image of that same building " Moreover, during this con- versation, Lewis admittedly "could very possibly [have] talked about" whether Hall and Pettaway had taken care of things with the Union. On 14 or 15 May Leland Lewis telephoned and of- fered employment to Hall. During this conversation, Lewis said that Hall might have a problem working for Respondent if he "didn't get things squared away with the [U]nion" before starting work. Hall replied that he would talk to the Union to ensure that he did not en- counter problems On 19 May, when Hall reported for work, Leland Lewis admittedly asked if Hall "had gotten things squared away with the [U]nion" and Hall answered that he had gotten a withdrawal card. Lewis then put Hall to work However, after working for Re- spondent for approximately 3 weeks, Hall quit. Periodically Pettaway telephoned Respondent to in- quire about employment During one such call, in June, Pettaway was told by Leland Lewis that work was slow 8 Lewis testified that he made these remarks because "I knew Andy and Pettaway, and I was concerned for their welfare " 517 and, according to Pettaway, Lewis asked if Pettaway "had got a withdrawal yet, and I said no." When initially asked if he had "asked Pettaway if he would have any trouble with the [U]nion if he came to work for [Re- spondent] or if he would be able to work things out with the [U]nion with regard to coming to work with [Re- spondent]," Leland Lewis responded- "I don't recall saying that, no " However, after having been shown his prehearing affidavit, Lewis conceded that he had put those questions to Pettaway and, further, that Pettaway had not replied that he would work things out with the Union, but instead had said only "to hell with the [U]nion[ ]" Indeed, Leland Lewis acknowledged that from April to August Pettaway never had said either that he had withdrawn from the Union or that he would withdraw from the Union as a condition of coming to work for Respondent Leland Lewis admitted that he had asked Pettaway about withdrawal from the Union on so many occasions that Lewis could not recall the exact number It is not disputed that one such occasion had occurred during a telephone conversation on 4 August. According to Pettaway, when he asked about an opening, Lewis had "replied things were still pretty slow, and he asked me had I got a withdrawal yet, and I said no." Following an exchange of small talk, testified Pettaway, Lewis had said that "every time I hire union, I get in trouble." Asked about this portion of the conversation, Leland Lewis testified. "Well, it's hard for me to believe that I said it that way because I didn't know of any problems that we have had with hiring union people, we haven't had any problems hiring union people " Hall and Pettaway were not the only applicants with whom union membership status was discussed. It is un- contradicted that on 11 August unemployed sheet metal worker Carl Jorgensen applied for employment and, in the course of his discussion with Leland Lewis that day, the latter asked if Jorgensen belonged to the Union When Jorgensen answered that he had not belonged to the Union since 1982, it is not denied that Lewis "said that they weren't a union shop and that they never would be " As stated above, in August Pettaway was offered em- ployment by Respondent. Leland Lewis testified that this occurred on advice of counsel rendered in response to a racial discrimination charge filed by Pettaway with, the Commission As noted above, during the course of the investigation of that charge, Leland Lewis submitted a handwritten letter to the Commission. In that letter, he made the following pertinent statements- 1) When Mr Pettaway applied for employment, as he indicated he was a union member in good standing, still drawing union Fringe benefits, we are open shop. We informed Mr Pettaway That He would have To Take out a withdrawal from the Union To minimize any adverse affect to his union membership or to us. The consequences for Mr. Pettaway Leaving The Union could be quite Severe as he has only been a Journeyman for a short Time. 518 DECISIONS OF THE NATIONAL LABOR -RELATIONS BOARD As we were also Union Members in good stand- ing, we are experiencing some of these conditions. 3) During May some of our work began to break and we hired 6 Employees from May 5 Thru May 19. Two of The Employees were College students That had worked for us in 1985 and were promised a Job in 1986 if we had the work. Three of the Em- ployees we worked with at EIRMC from January- April & were promised jobs once our work started and Ivey Inc. could release Them. They were hired before Mr. Pettaway ever Talked To us. We had a few applications, some of which dated back to 1985. Mr. Pettaway Never responded as To what his situ- ation was with the Union, whether he could with- draw without jepordizing his Union membership and benefits. The only thing we ever heard was that he wanted a job, and because the Economy being as it was we had several applicants who needed work and didn't have the benefits which were available to Mr. Pettaway. However, we did hire a Full blood- ed Indian who was a union member in good stand- ing but had taken out a withdrawal from the union. 4) In April we did not have 14 employees as Mr. Pettaway Indicated. We had only built up to 6 Em- ployees by the End of May one of which was a mi- nority....-The Total work which we had was not breaking for us As we had hoped. - Because of the Economy conditions our jobs had to be matched with The right Labor rates and we could not afford To [sic] many at the higher rates. 5) Mr. Pettaway is a union member and The Union in The past has provided some Employment even if the members have to Travel out of town of which I heard of some that done just that. The Union shops were hireing [sic] off & on Thru-out The year and I don't know why Mr. Pettaway did not apply at a union shop or Travel to work available out of state. We never felt it was our responsibility to provide Employment for Union members in as much as we are open shop, however if the Union members were willing to accept the consequences of withdrawal from the Union and Lower wage rates if we had the work we would hire them. Mr. Pettaway never indicated to us that he would accept those condi- tions or the condition that we could not guarantee how long the work would be available. 6) The Union has been harrassing our Company and we cannot afford a confrontation with the Union. We have tried hiring a union member who withdrew from the Union. He worked for Three Weeks and was hassled so much by the union and union members he quit and then tried to draw un- employment. He worked approximately three weeks before going back to the union. The union is trying to persuade our employees to quit by offering Them Employment over the members on the bench. We were associated with Mr. Pettaway working for another Contractor. at That Time he was an ap- prentice and still had much Too learn. Our involve- ment with him was limited. We have never seen his work or ability since completing his Apprenticeship. Leland Lewis was the sole witness who testified re- garding Respondent's reason(s) for not having hired Pettaway until August. During his testimony-when called as an adverse witness by the General Counsel and, again, when called by Respondent-Lewis was interro- gated repeatedly about the subject of availability of work from May to August. In the end, his own inconsistent testimony on that subject leaves Respondent in the posi- tion of having advanced no credible legitimate reason for not having offered employment to Pettaway sooner. Thus, when called by the General Counsel, Lewis testi- fied that Respondent had employed several people during the summer. Further, he conceded that neither in his letter to the Commission nor in his prehearing affida- vit had he said that Respondent had not hired Pettaway because there had been no work for him. This then led to the following exchange: Q. And you are not contending today that that's the reason that you didn't hire Mr. Pettaway? A. No, not that we didn't have any work. Q. Pardon? A. No, not because we didn't have any work. We were anticipating a lot of work, yes. However, during the examination by Respondent's counsel that followed, Leland Lewis changed direction: Q. Now, with regard to Pettaway, can you detail what the reasons were why you did not hire him at that time? A. Well, the reason that we didn't hire Mike at that time was our work load had not developed to the point where we needed the expertise that we felt he had to offer to us. . . . [H]ad our work load been sufficient to the point where we could have used Mike Pettaway, we would have hired him... . A. In May or June or July or at any time. Our work load had not developed as we had hoped that it would. We had a couple of jobs that normally you would have thought that we should have had five or six people on it. It never did turn out that way.... So our work load has just not normally developed like it should. Of course, Lewis' assertion concerning Respondent's per- ception of Pettaway's "expertise that we felt he had to offer" is not exactly consistent with the acknowledge- ment in his letter to the Commission that, "Our involve- ment with him was limited. We have never seen his work or ability since completing his Apprenticeship." Moreover, during redirect, Lewis acknowledged that neither in that letter nor in his prehearing affidavit had he claimed that Pettaway had not been offered employ- ment because Respondent did not have the type of work that he could do. And he then conceded that that reason LEWIS MECHANICAL WORKS had nothing to do with Pettaway's not being offered em- ployment until August. Nevertheless, when called as a witness during Re- spondent's case-in-chief and when asked why Pettaway had not been hired sooner, Leland Lewis disregarded his own earlier admissions by'testifying: The only reason I can think of that I didn't hire him at this point in time was that we just didn't need him at that point in time, and during our proc- ess of hiring, we hired according to the budget that we had into the jobs, so we had hired some pretty good people prior to-when we first hired, we had to balance our jobs with the manpower available and the manpower we felt that we had to have- C. Analysis The complaint alleges that Respondent violated Sec- tion 8(a)(1) of the Act by: interrogating job applicants concerning their union membership status, telling appli- cants that if they worked for Respondent they should withdraw from the Union, telling an applicant that Re- spondent got into trouble whenever it hired union per- sonnel , and stating to an applicant that Respondent would not have a union shop. With respect to the last allegation , Leland Lewis did not deny having said that Respondent would never be a union shop to applicant Jorgensen in August and I credit the latter's account of what had been said that day. That statement to Jorgen- sen constituted "a bald assertion that the Respondent would never recognize [a] [u]nion." Saint Luke's Hospi- tal, 258 NLRB 321, 322 (1981) Furthermore, the com- ment was made by Respondent's president during the course of a job interview after questioning about the ap- plicant's union membership status. An employment inter- view "is a session of serious import at which the employ- er deals with matters, and propounds corresponding in- quiries, designed to determine the suitability for employ- ment, in the employer's eyes, of the applicant being interviewed." Singer Co., 158 NLRB 677, 689 (1966). In the circumstances, Leland Lewis' remark to Jorgensen was a coercive one, cf. Marian Lewis, Inc, 270 NLRB 432, 432 (1984), that, "clearly conveyed the message that . . . employees' support of [a] [u]nion would be futile," Saint Luke's Hospital, supra and, consequently, violated Section 8(a)(1) of the Act. See, e.g., Kay Motors, 264 NLRB 1030, 1030 (1982) In paragraphs 1 and 5 of his letter to the Commission, Leland Lewis admitted having told Pettaway that he would have to withdraw from the Union to gain employ- ment with Respondent Section 8(a)(1) of the Act is vio- lated whenever prospective employees are told, "that nonmembership in [a] union [is] a condition of employ- ment." Time-O-Matic v. NLRB, 264 F.2d 96, 99 (7th Cir. 1954). Accord: Daily Transit Mix Corp., 238 NLRB 879 fn. 1 (1978), enfd. 614 F 2d 777 (9th Cir. 1980). Similarly, Pettaway testified that during their August telephone conversation Leland Lewis had said that "every time I hire union, I get in trouble." At no point did Lewis actually deny having made that remark. In- stead, as set forth in section III,B, supra, he testified only that it was "hard for me to believe that I said it that 519 way," claiming that, "we haven't had any problems hiring union people " But a statement of belief concern- ing the occurrence or nonoccurrence of an event or statement "hardly qualifies as a refutation of positive testimony and unquestionably [is] not enough to create an issue of fact" Roadway Express v. NLRB, 647 F 2d 415, 425-426 (4th Cir 1981). Moreover, paragraph 6 of Leland Lewis' own letter to the Commission-in which he complains about a union member who had gone to work for Respondent after having withdrawn from the Union and who then had been "hassled so much" that he resumed his membership and quit working for Respond- ent-shows that on one occasion Lewis at least felt that problems had arisen when Respondent had "hire[d] union " Accordingly, I credit Pettaway's testimony con- cerning that remark. Because the remark had been made after Pettaway had responded negatively to Leland Lewis's question about Pettaway's union membership status, and inasmuch as Lewis admittedly had told Pettaway earlier that withdrawal from union membership would be the price of employment with Respondent, this statement was effectively an implied threat that Respond- ent would not be hiring union members, in this instance so that Lewis could avoid "trouble." Concerning to the interrogation allegations, "interro- gation of prospective employees [about their union senti- ments] by a high company official is definitely coercive and interferes with an employee's rights" NLRB v. Tesoro Petroleum Corp, 431 F.2d 95, 96 (9th Cir 1970) For, in an employment interview, "[t]he interviewee [can be] expected to take seriously what [is] said," Eastern Maine Medical Center v. NLRB, 658 F.2d 1 (1st Cir 1981), and when an applicant is asked about union mat- ters, "he has ample reason to know from such question- ing itself . . . that the employer has a significant aversion to the employment of prounion applicants " Singer Co., supra. Here it is not disputed that from April into August both Lamont and Leland Lewis, Respondent's highest officers, inquired-sometimes subtly and on other occa- sions directly-if Hall and Pettaway were continuing to maintain membership in the Union. Moreover, as Leland Lewis admitted, Pettaway had been told that he would not be hired so long as he remained a union member Re- spondent argues that the questioning had been motivated by concern for the welfare of Hall and Pettaway But even if true, that would not excuse or nullify the coer- cive effect of the questioning For, "the test of interfer- ence, restraint, and coercion under Sec. [a](1) of the Act does not turn on the employer's motive." NLRB v. Illi- nois Tool Works, 153 F.2d 811, 814 (7th Cir. 1946). "Rather, the test is whether the employer's conduct and words reasonably tend to interfere with the exercise of employee rights " American Lumber Sales, 229 NLRB 414, 416 (1977). Furthermore, the fact that Jorgensen- so far as the record discloses a stranger to Leland Lewis prior to 11 August-also was questioned about his union membership when he applied for employment with Re- spondent, the fact that Leland Lewis expressed con- cern-in his letter to the Commission and in his August telephone conversation with Pettaway-about the ad- 520 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD verse effect on Respondent of hiring union members, and the further fact that the Lewises have stated that Re- spondent intends to remain nonunion-at least until it be- comes more viable economically-all tend to refute any altruistic motive advanced by Respondent for this ques- tioning and to show, instead, that Respondent's question- ing was part of an overall plan to avoid hiring union members. Therefore, I conclude that by questioning pro- spective employees about their union membership status, Respondent's officials violated Section 8(a)(1) of the Act. Remaining for consideration is the allegation that the refusal to offer employment to Pettaway prior to August was unlawfully motivated. This is an issue that, given the state of the record, does not warrant prolonged analysis. As set forth in section III,A, supra, "the crucial inquiry must be directed to the state of mind of the official who made the decision [not to offer employment to Pettaway earlier]." Advanced Installations, supra. The specific iden- tity of that person is not disclosed by the record. Pre- sumably it had been Leland Lewis inasmuch as he was the only official of Respondent who testified concerning the reason(s) for not having offered employment to Pettaway sooner. As the recitation of his conflicting tes- timony on this point in section III,B, supra, shows, his explanation of Respondent's motive is internally contra- dictory, and, given his demeanor and testimony in other areas, is not susceptible of belief. Indeed, under the Gen- eral Counsel's examination he disavowed every reason for not having offered Pettaway employment before August that he identified under examination by Respond- ent's counsel. As a result, Respondent has advanced no reason at all for not having offered Pettaway employ- ment sooner. Moreover, aside from the fact that none of the reasons identified by Leland Lewis at the hearing ap- peared in his pretrial affidavit or in his letter to the Com- mission, the latter contained the outright admission that Pettaway had not been hired because he had not with- drawn from union membership. That admission elimi- nates any further question concerning the unlawfulness of Respondent's motivation. Advanced Installations, supra, 257 NLRB at 848, and cases cited therein. It really matters little whether, in trying to persuade Pettaway to withdraw from the Union, Respondent's concern was for Pettaway's welfare or, alternatively, Re- spondent's concern' was for its own economic welfare. Whatever the underlying reason, Respondent refused to hire Pettaway before August because he would not with- draw from union membership and the Act expressly pro- hibits employment-related action intended to discourage membership in labor organizations. In any event, I do not credit the assertions that Respondent's officials were motivated by concern for Pettaway's welfare. Rather, the evidence shows that Respondent was concerned about avoiding the possibility of what it regarded as pre- mature unionization of its employees-a possibility that might arise if members of the Union were hired. Therefore, a preponderance of the evidence shows that Pettaway applied for employment with Respondent, that he was a member of the Union and remained one throughout the spring and summer, that Respondent would not hire active union members, and-as Leland Lewis expressly admitted in his letter to the Commission and as the other evidence in this matter shows-that Re- spondent refused to offer employment to Pettaway prior to August because he did not withdraw from union membership. In the absence of credible evidence that Pettaway would not have been offered employment had he withdrawn from the Union, that refusal violated Sec- tion 8(a)(3) and (1) of the Act. CONCLUSIONS OF LAW Lewis Mechanical and Metal Works, Inc. committed unfair labor practices 'affecting commerce, within the meaning of Section 2(6) and (7) of the Act, by expressing futility of union support by stating that it would never be a union shop; by telling applicants for employment, ex- pressly and by implication, that they must withdraw from union membership to obtain employment; and by interrogating applicants for employment concerning their union membership and sympathies, in violation of Sec- tion 8(a)(1) of the Act, and, further, by refusing to hire Michael Pettaway because he would not withdraw his membership in Sheet Metal Workers International Union, AFL-CIO, Local No. 60, in violation of Section 8(a)(3) and (1) of the Act. REMEDY Having found that Lewis Mechanical and Metal Works, Inc. engaged in certain unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and that it take certain affirmative action to ef- fectuate the policies of the Act. Concerning to the latter, it shall be ordered to make whole Michael Pettaway for any loss of pay he may have suffered as a result of the unlawful refusal to offer him employment prior to August 1987. Backpay will be computed on a quarterly basis, making deductions for interim earnings, F. W. Woolworth Co., 90 NLRB 289 (1950), and with interest to be paid on the amounts owing and to be computed in the manner prescribed in Florida Steel Corp., 231 NLRB 651 (1977). See generally Isis Plumbing Co., 139 NLRB 716 (1962), enf. denied on different grounds 322 F.2d 913 (9th Cir. 1963).4 [Recommended Order omitted from publication.] 4 The General Counsel also seeks inclusion of a visitatorial provision in the remedial order. However, the Board has not ordinarily provided for inclusion of such a provision as a remedy nor has it formulated any guidelines for inclusion of such provisions in remedial orders Moreover, nothing in this case appears to give rise to the concerns that would war- rant inclusion of such a provision. Accordingly, I deny the General Counsel's request for its inclusion as part of the remedial order