Allied Lettercraft Co, Inc And John Becht, Inc

612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Allied Lettercraft Co, Inc and John Becht, Inc and Local One, Amalgamated Lithographers of America, affiliated with International Typo- graphical Union, AFL-CIO Case 2-CA-17724 28 September 1984 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND HUNTER On 27 May 1982 Administrative Law Judge D Barry Morris issued the attached decision The Re- spondent filed exceptions, a supporting brief, and later a supplemental brief The General Counsel also filed exceptions and a supporting brief to which the Respondent filed an answering 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 briefs' and has decided to affirm the judge's rulings, findings,2 and conclusions, 3 to amend the remedy, and to modify the recommended Order ' We grant the Respondent s motion to supplement the record with an affidavit of its counsel 2 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 We further find no merit in the Respondent s contention that the judge s credibility resolutions findings rulings and interpretation of the evidence demonstrate bias and prejudice against the Respondent Rather having carefully and fully considered the record and the judge s decision, we perceive no evidence that he prejudged the case, made any prejudi- cial rulings, or demonstrated a bias against the Respondent in his analysis or discussion of the evidence In particular, we find no merit in the Re spondent's contention that It was effectively" dented an opportunity to present a defense by the judge s adverse rulings on its motions to quash subpoenas Issued by the General Counsel and on Its motions to dismiss the complaint at the close of the General Counsel s case in chief In adopting the judge s finding that the Respondent unlawfully interro- gated employee William Hawkins, we find it unnecessary to rely on PPG Industries, 251 NLRB 1146 (1980) 3 Our dissenting colleague disagrees with our finding that the Re spondent violated Sec 8(a)(3) by laying off employees Victor Ramos and Paul Giaime Although our colleague agrees that the evidence shows that the Respondent knew of Glaime s union activities and union organizing in general, he states that there is insufficient evidence to show knowledge of Ramos' union activity by the Respondent We find the record adequately supports the judge's Inference of knowledge from the Respondent's close supervision of the print shop by Vice President Conroy, the presence of the son of the Respondent's president in the workplace, and the short 4- day interval between the Respondent's learning of Giaime's union activi ty and the two layoffs In addition, as a result of the unlawful interroga lion of employee Hawkins on 8 December, it is clear the Respondent had sought to ascertain the identities of union supporters Our colleague fur- ther finds merit in the Respondent's economic arguments supporting the layoffs of Ramos and Gialme, notwithstanding evidence relied on by the judge that these additional layoffs were inconsistent with its normal prac tiees We simply note that the Respondent fails to argue or point with precision to any evidence to indicate that It anticipated or predicted by 12 December 1980 that the reductions in workload and manpower re quirements would require five rather than three layoffs Evidence of sub- AMENDED REMEDY Having found that the Respondent has engaged in certain unfair labor practices, we shall order that the Respondent cease and desist from such prac- tices and take further action to effectuate the poli- cies of the Act Since the Respondent has laid off employee Victor Ramos in violation of the Act, we will order the Respondent to offer him immediate and full reinstatement to his former position or, if such position no longer exists, to a substantially equiva- lent position, without prejudice to his seniority and other rights and privileges previously enjoyed, and to make him whole for any loss of earnings and benefits he may have suffered from the time of his layoff to the days of the Respondent's offer of rein- statement Further, we have found that the Respondent also laid off employee Paul Giaime in violation of the Act However, the record reveals that on 1 June 1981 the Respondent converted layoff to a dis- charge On that date the Respondent's president, Daniel Cantelmo, wrote a letter to Giaime stating that he had learned of Giaime's purported arrest on "felony charges involving the sale of narcotics" and his later guilty plea to "narcotics related crimes " No issue is raised by the pleadings in this case as to the lawfulness of the discharge Howev- er, the standard remedy for Giaime's unlawful layoff, full backpay and reinstatement, may not be warranted in this instance due to Giaime's alleged criminal conduct Questions as to the accuracy of Cantelmo's knowledge of Giaime's alleged crimes, the exact nature and degree of the charges and the guilty plea, the sentence imposed and whether it was served or suspended have not been litigated nor is there evidence of the Company's policy, if any, concerning the continued employment of those who plead guilty to a crime Therefore, we shall at this time order the same reinstatement and backpay for Giaime as we do for Ramos The com- pliance stage of this proceeding is the appropriate forum for addressing the issues which might war- rant a forfeiture of Giaime's right to reinstatement and backpay See Jacob E Decker & Sons, 244 NLRB 875 (1979) Backpay for both discriminatees is to be computed as prescribed in F W Woolworth Co, 90 NLRB 289 (1950), with interest thereon to be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977) See generally Isis Plumbing Co, 138 NLRB 716 (1962) sequent developments is irrelevant to show the validity of these layoffs because the Respondent could not have been motivated by what It did not then know \ 272 NLRB No 97 ALLIED LETTERCRAFT CO 613 Finally, we shall order the Respondent to remove from its files any references to the unlawful layoffs of Ramos and Giaime and to notify each of them in writing that this has been done and that the layoffs will not be used against them in any way ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified and set out in full below and orders that the Respondent, Allied Lettercraft Co, Inc and John Becht, Inc , New York, New York, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Interrogating employees concerning their union activities (b) Granting wage increases or other benefits to employees in order to discourage them from en- gaging in union activities (c) Discriminatorily laying off and refusing to recall employees for engaging in activities protect- ed by Section 7 of the Act (d) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of their rights under Section 7 of the Act 2 Take the following affirmative action neces- sary to effectuate the policies of the Act (a) Offer Victor Ramos and Paul Giaime imme- diate and full reinstatement to their former posi- tions or, if those positions no longer exist, to sub- stantially equivalent positions without prejudice to their seniority and other rights and privileges pre- viously enjoyed (b) Make Victor Ramos and Paul Giaime whole for any loss of earnings and other benefits in the manner set forth in the section above entitled "Amended Remedy" (c) Remove from its files any reference to the unlawful layoff of Victor Ramos and Paul Giaime and notify each of them in writing that this has been done and that the layoffs will not be used against them in any way (d) 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 (e) Post at its facility in New York, New York copies of the attached notice marked "Appendix "4 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 Na tional Labor Relations Board" shall read Posted Pursuant to a Judgment Copies of the notice, on forms provided by the Re- gional Director for Region 2, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to employees are customarily posted Reason- able steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material (f) 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 those allegations of the complaint as to which no violations have been found are dismissed MEMBER HUNTER, dissenting I agree with my colleagues that the Respondent violated Section 8(a)(1) by its various interroga- tions' and that the Respondent also violated Sec- tion 8(a)(3) by granting certain wage increases However, I do not agree that the Respondent fur- ther violated Section 8(a)(3) by laying off and re- fusing to recall employees Victor Ramos and Paul Giaime Both Ramos and Giaime were laid off on 12 De- cember 1980 2 In finding a violation in Ramos' layoff, the judge first found that the Respondent at the time knew of Ramos' union organizing activi- ties I disagree There is no direct evidence that the Respondent knew of these activities Rather, the judge inferred such knowledge In doing so, he noted that Ramos and Giaime were the leaders of the union campaign, that the Respondent knew of Giaime's union activities at least by 8 December, that there were only 20 employees in Ramos' press department and the Respondent's vice president was spending 80 percent of his time in that depart- ment, and that the president's son also worked in that department I am not satisfied that this me- lange of mostly generalized facts adequately satis- fies the General Counsel's burden to show the Re- spondent knew of Ramos' union activity The fact that the president's son worked in Ramos' depart- ment is, without more, irrelevant to such a finding and the case the judge cites in support of his asser- of the United States Court of Appeals Enforcing an Order of the Nation al Labor Relations Board ' In so agreeing, I place no reliance on PPG Industries, 251 NLRB 1146 (1980), which was overruled in Rossmore House, 269 NLRB 1176 (1984) Moreover, I do not rely on the judge s cite to Mayfield's Dairy Farms, 225 NLRB 1017 (1976), in finding that Supervisor Gordon unlaw- fuly interrogated employee Hawkins Rather, I find that despite their friendship, Gordon s question to Hawkins clearly constituted impermissi ble probing into the union activities of others and on that basis, at the least, was an unlawful interrogation 2 All dates are 1980 unless noted otherwise 614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion on that point has facts which are critically dif- ferent than those here While the Respondent's vice president may have been in the department some 80 percent of the time, nonetheless, the Respondent made a number of specific assertions concerning its lack of knowledge which were nowhere discussed by the judge and which defuse the significance of the official's presence in the department 3 Thus, the Respondent has argued that most of the employee organizing took place off the premises, that noise from the machines on the pressroom floor made hearing difficult, that the union organizer had cau- tioned the employees to keep their activity quiet, and that, while there was some organizing activity in the department, the employees, in fact, strived to keep it quiet In light of these specific countervail- ing arguments of the Respondent, I cannot find the General Counsel established the requisite knowl- edge of Ramos' union activity on 12 December Accordingly, I would dismiss the allegation of the complaint alleging that Ramos' layoff on that date violated the Act The Respondent, however, clearly knew of Giaime's union activity as of his 12 December layoff The judge rejected the Respondent's claim, however, that Giaime was laid off because of its usual December downturn in business The judge noted that, earlier in December, the Respondent had laid off three other employees While the Re- spondent's vice president testified that all the De- cember 1980 layoffs were "more or less" consistent with past practice, the judge credited an employee who said December layoffs were usually of one or two employees Next, the judge looked at the de- clines in the Respondent's printing sales for the months of November through December in the years 1978, 1979, and 1980 He noted the decline in 1978 was 25 percent, in 1979, it was 29 percent, and in 1980, it was 16 percent He then said that no explanation had been provided for the fact that the 1979 decline of 29 percent yielded possibly two employee layoffs while the 1980 decline of 16 per- cent yielded five such layoffs Noting that the Re- spondent had earlier in December 1980 laid off three employees, the judge found those three lay- offs "relatively consistent" with past layoffs, but not the additional two layoffs, including that of Giaime, which he then found to be in violation of Section 8(a)(3) The Respondent, however, argues that the judge did not address its crucial claim regarding the lay- 3 The Board has held the "small plant rule [which the judge applied here] is based upon the size of the plant, not the size of the department Metro Center, 267 NLRB 288 (1983) Nonetheless, where the vice presi dent was spending 80 percent of his time in the department, that was a factor for the judge to consider However, the Respondent s evidence un dercuts the Importance of that point offs, i e, the judge failed to look to what occurred in the press department after the five employees were laid off It argues that no one was hired to take the employees' places, nor was anyone trans- ferred or assigned to do their work Further, it argues from the payroll records submitted by the General Counsel that the number of manhours worked after the layoffs declined to a level justify- ing five layoffs That decline was not offset by the increased work hours of others, and overtime (which was only scheduled at the last moment anyway) remained constant as a percentage of total time worked Then, the Respondent argues that when total hours increased in January 1981, it tried to recall two of the laid-off employees Factoring in the Respondent's other arguments, also never addressed by the judge, that the laid-off employees were the least senior in their job classifications, that Giaime was the only operator of a type of press which was not running at the time of his layoff and which did not resume running until 6 months later, and that the Respondent had not pre- viously allowed employees facing layoffs to bump into other classifications, I think the Respondent rebutted any prima facie case the General Counsel may have established on Giaime and therefore that the General Counsel did not establish that his layoff violated the Act The judge found the refusals to recall Giaime and Ramos also violated the Act but he had no in- dependent basis for that conclusion other than his finding that the initial layoffs were unlawful As I have concluded that the General Counsel did not carry the requisite burden on the layoff issue, I would find no violation in the refusal to recall the two employees 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 Section 7 of the Act gives employees these rights To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities ALLIED LETTERCRAFT CO 615 WE WILL NOT coercively question you about your union support or activities WE WILL NOT grant wage increases or other benefits to any of you in order to discourage you from engaging in union activities WE WILL NOT lay off and refuse to recall any of you for supporting Local One, Amalgamated Li- thographers of America, or any other union 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 offer Victor Ramos and Paul Giaime immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantial- ly equivalent positions, without prejudice to their seniority or any other rights and privileges previ- ously enjoyed, and WE WILL make them whole for any loss of earnings and other benefits resulting from their layoffs, less any interim earnings, plus interest WE WILL notify Ramos and Giaime that we have removed from our files any reference to their layoffs and that the layoffs will not be used against them in any way ALLIED LETTERCRAFT Co, INC AND JOHN BECHT, INC DECISION STATEMENT OF THE CASE D BARRY MORRIS, Administrative Law Judge The charge on which this proceeding is based was filed against Allied Lettercraft Co, Inc (Allied) on December 17, 1980, by Local One, Amalgamated Lithographers of America, affiliated with International Typographical Union, AFL-CIO (the Union) The complaint was issued on February 27, 1981, and amended on March 16, 1981, alleging that Allied violated Section 8(a)(I), (3), and (5) of the National Labor Relations Act (the Act) Allied filed an answer denying the commission of the alleged unfair labor practices A hearing was held before me in New York City com- mencing October 5, 1981, and continuing through Octo- ber 6, 26, 28, and 29, 1981 At the resumption of the hearing on December 16, 1981, the General Counsel moved to amend the complaint to add John Becht, Inc (Becht) as a respondent In addition, the General Coun- sel moved to withdraw those portions of the amended complaint which alleged that Allied had violated Section 8(a)(5) of the Act and that it had violated Section 8(a)(1) and (3) of the Act by discharging its employee, David Calandra The General Counsel's motion was granted The hearing continued on December 17 and on that date the parties stipulated that Becht be added as a party to this proceeding and that Allied and Becht are to be con- sidered a single, integrated enterprise and a single em- ployer, herein collectively referred to as Respondent After resuming on January 11, 1982, the hearing closed on January 12 The parties were given full opportunity to participate, to produce evidence, to examine and cross-examine wit- nesses, to argue orally, and to file briefs Briefs were filed by the General Counsel and Respondent On the entire record of the case, including my obser- vation of the witnesses, I make the following FINDINGS OF FACT I THE BUSINESS OF RESPONDENT Allied, a New York corporation, with its sole office and place of business in New York City, is engaged in the nonretail operation of a printing and direct mail busi- ness During the 12 months preceding the issuance of the complaint, Allied sold and shipped from its New York City facility goods valued in excess of $50,000 directly to purchasers located outside the State of New York Allied admits that it is engaged in commerce within the mean- ing of Section 2(2), (6), and (7) of the Act, and I so find Becht is a corporation engaged in printing Christmas cards, sharing with Allied the eighth floor of Allied's New York facility II THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act III THE ALLEGED UNFAIR LABOR PRACTICES A The Issues The amended complaint alleges that Respondent vio- lated Section 8(a)(1) and (3) of the Act by interrogating employees concerning their union membership and ac- tivities, by searching the lockers and personal belongings of its employees for the purpose of engaging in surveil- lance of their union activities, by granting wage increases to three employees in order to discourage their engaging in union activities, and by laying off five employees in retaliation for their union activities Respondent denied the allegations The issues are (1) Did Respondent interrogate employees concerning their union membership and activities? (2) Did Respondent search the lockers and personal belongings of its employees for the purpose of engaging in surveillance of their union activities? (3) Did Respondent grant wage increases to three em- ployees to discourage them from engaging in union ac- tivities? (4) Did Respondent lay off five employees in retalia- tion for their union activities? 616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B The Facts 1 Background During the latter part of October 1980, 1 Allied print department employee Paul Giaime contacted Union Business Agent George Cambria to discuss the possibility of having the members of that department become repre- sented by the Union The print department was located on the seventh floor of Allied's New York City facility and consisted of approximately 20 employees &aline then spoke about the Union to two other press depart- ment employees, Victor Ramos and David Calandra, and he gave their names to Cambria Cambria subsequently wrote to Ramos and Calandra to set up a meeting In mid-November Ramos and Calandra met with Cambria at the Union's office, at which time they discussed their problems at Allied, and Cambria explained the organiz- ing procedure Giaime and Ramos then spoke to other employees about the Union and arranged for a group of employees to meet with Cambria during lunch at a nearby restaurant The meeting took place approximately November 18, at which time, in addition to Giaime, Ramos, and Calandra, six other employees attended, viz, William Hawkins, James Roberts, Luis Gonzalez, Joseph DiMarco, Terrance Banks, and Richard Prentice There- after, Ramos and Giaime once again spoke to various employees in the shop about the Union, urging them to attend a second union meeting That meeting occurred on the evening of December 1 and was attended by Giaime, Ramos, Banks, Roberts, DiMarco, Calandra, and Hawkins Each of those present signed union authoriza- tion cards Cambria gave Giaime four additional cards to distribute and Giaime subsequently returned these cards to Cambria by mail bearing the names of Prentice, Gon- zales, Rogelio Best, and Richard Jenkins At the hearing, Gonzales and Prentice testified that they signed their re- spective cards in the shop on December 2 2 Interrogation Hawkins, a pressman in the print department, credibly testified that on December 8, a week after he signed a union authorization card, he approached Oliver Gordon, assistant to the vice president and stipulated by Respond- ent to be a supervisor within the meaning of the Act, and told Gordon, "We had organized, we had talked about it and we had been down to a meeting and we was on our way" Approximately 2 hours later, Raymond Conroy, vice president of Allied, called Hawkins to his office Hawkins credibly testified that the following dis- cussion took place Q Can you tell us what he said to you and what you said to him? A He asked me what I knew about Local One, and I told him I didn't know, and he asked me, well, did I want a Union, and I told him that if any- body else was down, I was down with the rest of them Q Did he say anything else? 1 All dates refer to 1980 unless otherwise specified A And he asked me was Paul Giaime happy with his job and I told him I didn't know Q Was there any discussion about any of the other employees involved with the Union? A He asked me did the rest of the employees sign cards and I told him I didn't know Q Was there any discussion about the meeting that Monday night? A Yes Q What was said? A He asked me did the fellows go down that Monday night to the meeting, I told him I didn't know Later that day, after his conversation with Conroy, Hawkins had a second conversation with Gordon During this conversation Gordon asked Hawkins, "Who was down with Paul Giaime and myself for the Union?" Hawkins refused to answer 3 Wage increases Hawkins credibly testified that approximately 4 or 5 days after his initial conversation with Conroy on De- cember 8, Conroy again called him into his office Conroy told him that he would receive his annual raise in January and that he would get a "merit" increase of $40 Hawkins credibly testified that he had never re- ceived a "merit" raise in the past Prentice similarly testi- fied that in the beginning of December, Conroy advised him that he had received a merit increase and that he would be getting his annual increase in January Conroy further advised Prentice that two other employees had received merit increases Prentice credibly testified that he had never previously received a merit increase It was stipulated that Hawkins, Prentice, and Richard Bartnik received wage increases for the pay period ending De- cember 7 4 Surveillance The complaint alleges that, about December 5, Re- spondent searched the lockers and personal belongings of its employees, for the purpose of engaging in surveillance of their union activities The parties stipulated that about December 5 Daniel Cantelmo, Allied's president, searched the open locker near Paul Giaime's printing press Roberts testified that at approximately 5 p m on December 5 he saw Cantelmo and Conroy look in Giaime's locker, which was located near his press Rob- erts further testified that they then went into the main locker room and closed the door and "I heard lockers opening and closing in there" Roberts credibly testified that Giaime kept a union pamphlet in his locker, that Giaime did not keep his locker locked, and that Giaime usually took the union literature home with him at night 5 Layoffs of Banks, Gonzalez, and Roberts The complaint alleges that on December 5, Respond- ent laid off Banks and Gonzalez and on December 8 it laid off Roberts, in retaliation for their union activities The record indicates that Banks, Gonzalez, and Roberts attended the November 18 union meeting Banks and ALLIED LETTERCRAFT CO 617 Roberts also attended the meeting on December 1, at which time they signed union authorization cards Gon- zalez did not attend the December 1 meeting, but on De- cember 2 he was handed the authorization card by Gianne at which time he signed it The record contains no other evidence of union activities by Banks, Gonza- lez, or Roberts As discussed earlier, the first direct evidence of Re- spondent's knowledge of the union organizing activity occurred on December 8, when Hawkins informed Gordon of the December 1 meeting It was that day also that ,Conroy questioned Hawkins concerning his union activities Accordingly, the layoffs of Banks and Gonza- lez occurred prior thereto In addition, the union activity of Banks, Gonzalez, and Roberts was minimal It consist- ed merely of each of them having signed union authori- zation cards and, in the case of Banks and Roberts, having attended two union meetings and, in the case of Gonzalez, having attended only one meeting Other em- ployees whose union activities were of the same magni- tude were not laid off or otherwise discharged Thus, Hawkins and DiMarco attended both meetings and signed union authorization cards Prentice attended one of the meetings and signed a union authorization card No disciplinary action was taken against them Based on the above, I find that the General Counsel has not estab- lished, by a preponderance of the evidence, that Banks, Gonzalez, and Roberts were laid off in retaliation for their union activities Accordingly, the allegation is dis- missed 6 Layoffs of Giaime and Ramos The complaint alleges that on December 12 Respond- ent laid off Giaime and Ramos in retaliation for their union activities The record makes clear that the two leaders of the union organizing effort were Giaime and Ramos It was Giaime who made the initial contact with Cambria Hawkins credibly testified that both &aline and Ramos approached him, discussed with him the pos- sibility of becoming unionized, and invited him to attend the November 18 meeting Ramos credibly testified that, in November, he was approached by Giaime, with re- spect to organizing a union After meeting with Cambria, Ramos spoke to five or six Allied employees in an at- tempt to get them to attend the November 18 meeting Gonzalez corroborated this testimony and credibly testi- fied that he found out about the November 18 meeting through &mime and Ramos Similarly, Roberts testified that he was informed of the meeting by Giaime and Ramos At the December 1 meeting, Cambria gave Giaime four additional cards to distribute Gonzalez and Prentice both credibly testified that they were given the authorization cards by Giaime Based on the above, I find that Giaime and Ramos were the two leaders of the union organizing campaign As discussed above, it is clear that, by December 8, when Conroy questioned Hawkins concerning his union activities, Respondent was aware of the union organizing campaign 7 Failure to recall The complaint alleges that Respondent failed to recall the five laid-off employees The record indicates, and I so find, that Banks was recalled on December 31, 1980, Gonzalez was recalled in January 1981, and Roberts was incarcerated from December 19, 1980, until September 15, 1981 The record shows, however, and I so find, that Respondent did not recall Giaime and Ramos C Discussion and Analysis 1 Interrogation I have credited Hawkins' testimony and find that on December 8 2 Conroy asked him what he knew about the Union, if he wanted a union, and which employees signed authorization cards On the same day, Gordon asked Hawkins who, besides Giaime and himself, were for the Union While Conroy conceded that a conversa- tion with Hawkins took place, he denied that there was any mention of union activity I credit Hawkins' version of the events Conroy appeared to be evasive in his an- swers Thus, when asked whether anyone who works for Allied would be familiar with the contents of the em- ployee personnel files, Conroy, who was vice president and director of production, answered, "Not to my knowledge" When questioned concerning Gordon's su- pervisory status, Conroy initially denied that Gordon su- pervised the direct mail operation However, after having been shown an affidavit in which he stated to the contrary, Conroy changed his testimony to state that Gordon in fact did supervise the direct mail operation Interrogation concerning an employee's union activi- ties, "even when addressed to employees who have openly declared their union adherence," reasonably tends to coerce employees in the exercise of their Section 7 rights PPG Industries, 251 NLRB 1146, 1147 (1980) With respect to Gordon's interrogation of Hawkins, Re- spondent argues that the questioning should not be found unlawful because Gordon was a personal friend of Haw- kins However, it was stipulated by Respondent that Gordon was a supervisor within the meaning of the Act 3 As was stated in Mayfield's Dairy Farms, 225 NLRB 1017, 1019 (1976) Nor does the existence of a personal friendship be- tween the interrogator and the employee being in- terrogated legalize conduct which is otherwise un- lawful On the contrary, an interrogation by a friendly supervisor may have a far more coercive impact than an interrogation by a hostile agent of management 2 G C Exh 32, which is the statement given to the Board by Hawkins on December 29, 1980, also places the date of the meeting with Conroy approximately a week after I signed my union card,' viz, December 8 3 That Gordon's interrogation was perceived by Hawkins as coercive and potentially threatening is borne out by the fact that, while Hawkins readily admitted to Gordon that he supported the Union, he refused to answer Gordon's question as to who, besides amine and himself, sup ported the Union 618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Accordingly, I conclude that the interrogation of Hawkins by Conroy and Gordon constitutes a violation of Section 8(a)(1) of the Act 2 Wage increases I have credited Hawkins' testimony that about Decem- ber 12 Conroy advised Hawkins that he was receiving a "merit" increase of $40 in addition to an annual raise which he would receive in January Prentice's raise was approved on December 8 and Bartnik's raise was dated December 8 Based on the record, I find that the in- creases were made effective December 8 for the week of December 1-7 While Conroy testified that the conversation with Hawkins concerning the raises took place around Thanksgiving, I credit Hawkins' version of the events As stated earlier, I found Conroy to be evasive in his an- swers In addition, Hawkins specifically testified that the conversation concerning the raise took place 4 or 5 days after his conversation with Conroy concerning the Union Inasmuch as the prior conversation took place on December 8, the conversation concerning the merit in- crease would have taken place about December 12 It is well settled that a grant of benefits to employees after the commencement of union organizing raises the inference that the granting of such a benefit is designed to influence employees to withhold their support for the union NLRB v Exchange Parts Co, 375 U S 405 (1964) Where an employer grants a benefit during a period of union activity, the legality of such an act depends on whether the benefit conforms to a past practice or had been determined prior to the employees' union activity Pace Oldsmobile, 256 NLRB 1001, 1009-10 (1981) Respondent contends, and Conroy so testified, that be- ginning in 1979 it changed its policy so that employees were to receive wage increases every 6 months, and that the December increases were the regular 6-month raises However, both Hawkins and Prentice credibly testified that the December raises were described as "merit" in- creases which were to be in addition to the regularly scheduled raise which was to be given in January Haw- kins and Prentice both credibly testified that they had never previously received a merit increase Furthermore, the evidence in the record does not substantiate Conroy's testimony with respect to regular 6-month raises Thus, Bartnik received a raise in April 1979, received his next raise 11 months later in March ,1980, and the merit in- crease on December 8, 9 months after the previous in- crease Prentice received a raise in March 1980 and his next raise was the merit increase of December, approxi- mately 9 months later Ira Ishkhanian, another print de- partment employee, received a raise in January 1979 His next increase was in January 1980, and the subsequent raise was given in January 1981, each raise at yearly in- tervals 4 Inasmuch as I have found that Hawkins was informed of his raise on December 12 and that the raises were ef- fective as of December 8, and since I have further found 4 Similarly, Longo, also a print department employee, received a raise in January 1979, his next raise 8 months later, in September, and the sub sequent raise a year later, in September 1980 that there was no past practice of granting "merit" in- creases, Respondent has not been able to demonstrate a lack of unlawful motive While Respondent argues that it had a past practice of granting increases at 6-month in- tervals, the evidence in the record shows no discernible pattern of when increases were granted Accordingly, I find that the granting of the December wage increases to Bartnik, Prentice, and Hawkins constitutes a violation of Section 8(a)(1) and (3) of the Act See Alexander's Res- taurant & Lounge, 228 NLRB 165, 171 (1977), enfd 586 F 2d 1300 (9th Cir 1978) 3 Surveillance The complaint alleges that on December 5 Cantelmo and Conroy searched the lockers of Allied's employees for the purpose of engaging in surveillance of their union activities Respondent has conceded, and I have found, that at approximately 5 p m on December 5, Cantelmo and Conroy looked into the locker of Giaime Immedi- ately thereafter they went into the locker room, closed the door, and the opening and closing of lockers could be heard There is no evidence in the record which shows that the lockers contained union material In fact, Roberts credibly testified that Giaime usually took the union literature with him at the end of the day In addi- tion, as discussed above, there is no direct evidence that prior to December 8 Respondent had knowledge of the union activities of the employees The record supports only a finding that a search was conducted There is no support for a finding that the purpose of the search was to engage in surveillance of union activities There is no greater reason to suspect that as a motive than a number of other possibilities In this connection, it is noteworthy that Calandra testified that on December 10 he was discharged for theft of serv- ices The record contains ample evidence that Respond- ent had reason to believe that such theft of services was taking place It is not unreasonable to conjecture that 5 days prior to Calandra's discharge, Respondent may have wished to examine the employees' lockers to aid in the investigation of the possible theft of services While the record does not contain sufficient evidence on which to base a finding as to the motive for searching the lock- ers, there is as much likelihood, if not more, that the lockers were searched in connection with the alleged theft of services, rather than to closely watch union ac- tivities Accordingly, the General Counsel has not shown by a preponderance of the evidence that the search was conducted for the purpose of engaging in the surveil- lance of union activities The allegation is therefore dis- missed 5 5 In addition, par 9(b) of the complaint alleges that Respondent cre sled the impression of surveillance among its employees The General Counsel argued that Conroy spent considerably more time in the print shop during December than he had previously I find, however, that on November 14 John Cabeza, who had been manager of the print shop, left the Company At that point, in addition to his other duties, Conroy took over management of the print shop This required that he spend about 80 percent of his time in the print shop It was for this reason that he spent more time in the print shop in the latter part of November and Decem- ber Accordingly, the allegation in par 9(b) is dismissed ALLIED LETTERCRAFT CO 619 4. Layoffs I have found that the layoffs of Banks, Gonzalez, and Roberts were not motivated by their union activities. On the other hand, with respect to Giaime and Ramos I have found that they were the leaders of the union cam- paign The record indicates that Respondent was in- formed of the employees' union activities on December 8. During Hawkins' second conversation with Gordon on December 8 Gordon asked Hawkins who, besides Giaime, was active in organizing the Union. It is obvi- ous, therefore, that Respondent already knew of Giaime's activities Since there were only 20 employees in the print department and in view of the fact that Conroy was spending 80 percent on his time in that de- partment, it is reasonable to infer that either on Decem- ber 8 or within the next several days Respondent also found out about the organizing activities of Ramos. See Tom's Ford, Inc , 233 NLRB 23, 24, 27 (1977), enfd. in part 582 F.2d 1276 (3d Cir. 1978), cert. denied 440 U.S. 190 (1979).6 Concerning timing, on December 12, 4 days after the disclosure of the employees' union activities, Giaime and Ramos were laid off. With respect to animus, the interro- gation and the wage increases demonstrate Respondent's atttiude towards the Union. In any event, however, the law is clear that direct evidence of union animus is not required to establish that a discharge or layoff was un- lawful. As stated in Westinghouse Electric Corp., 235 NLRB 356, 358 fn. 8 (1978): It is well settled that the element of animus can be established on the basis of circumstantial evi- dence. Ri-Del Tool Mfg. Co., Inc., 199 NLRB 969 (1972). And the timing of a discharge or separation abruptly after an employer has learned of an em- ployee's union activities, as here, is one instance of such probative circumstantial evidence. NL.R.B. v. Montgomery Ward & Co., 242 F.2d 497, 502 (C.A. 2, 1957), cert. denied 355 U S. 829. Under Wright Line, 251 NLRB 1083, 1089 (1980), the Board requires that the General Counsel makes a prima facie showing sufficient to support the inference that protected conduct was a motivating factor in the em- ployer's decision. Once this is established, the burden shifts to the employer to demonstrate that the "same action would have taken place even in the absence of the protected conduct" Respondent argues that December is usually a slow period in the Allied press department due to the comple- tion of Christmas card work performed by Allied's multi- lith operators on loan to Becht. Conroy testified that a seasonal slowdown occurs every December. He further testified that the number of layoffs in 1980 was "more or less" consistent with the layoffs in past years and that Allied increases its personnel during the summer and lays off employees in December. In this regard, Hawkins cre- 6 The likelihood of Respondent having been able to quickly ascertain the identity of the leaders of the organizing campaign is buttressed by the fact that the president's son was a print shop employee See Eastern Steel Co., 253 NLRB 1230, 1238 (1981) dibly testified that every year "one or two persons will get laid off." He testified that in December 1979 two em- ployees were laid off.7 Respondent produced no records to show how many employees were laid off in preceding years. The record does not demonstrate the economic necessity to lay off five employees in December 1980. On the contrary, Re- spondent's Exhibit 15 shows the following decline in De- cember printing sales over those of November: 197825 percent; 1979-29 percent; and 1980-16 percent. s If only two employees were laid off in December 1979, when there was a decline in printing sales of 29 percent from the previous month, there appears to be no eco- nomic justification for laying off five employees in De- cember 1980, when printing sales were only 16 percent less than the previous month's. Inasmuch as I have found no discriminatory motive for the layoffs of Banks, Gonzales, and Roberts, it would appear that their layoffs in fact were relatively consistent with the number of layoffs which traditionally occur in the winter months. However, with respect to Giaime and Ramos I believe that Respondent has not satisified its burden of demonstrating that the layoffs "would have taken place even in the absence of the protected con- duct." Accordingly, I find that Respondent laid off Giaime and Ramos because of their union activities, in violation of Section 8(a)(3) and (1) of the Act. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By interrogating Hawkins concerning his union ac- tivities, Respondent has engaged in an unfair labor prac- tice within the meaning of Section 8(a)(1) of the Act. 4. By granting wage increases to Bartruk, Prentice, and Hawkins, Respondent has engaged in unfair labor prac- tices within the meaning of Section 8(a)(1) and (3) of the Act. 5. By laying off and refusing to recall Paul Giaime and Victor Ramos, for activities protected by the Act, Re- spondent has engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 6. The aforesaid unfair labor practices constitute unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 7. Respondent did not violate the Act in any other manner alleged in the complaint. 7 Prentice's testimony on this point is unclear While he testified that six employees were laid off in the print shop, he further testified "when I say six, I don't actually mean—I've seen a lot of people laid off, this is what I'm trying to say" In addition, he testified that while he initially stated that the layoffs occurred in the printing department, he in fact meant that the layoffs occurred in the Company as a whole. 8 December 1978 printing sales were 37,000 less than the November sales of $146,000, December 1979 sales were $44,000 less than the No- vember sales of $153,000, and December 1980 sales were $23,000 less than the November sales of $143,000 620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD THE REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, I find it necessary to order Respondent to cease and desist therefrom and to take further action to effectuate the policies of the Act. Respondent having laid off Paul Giaime and Victor Ramos in violation of the Act, I find it necessary to order Respondent to offer them full reinstatement to their former positions or, if such positions no longer exist, to substantially equivalent positions, without preju- dice to their seniority or other rights and privileges, and make them whole for any loss of earnings that they may have suffered from the time of their layoffs to the date of Respondent's offers of reinstatement. Backpay shall be computed in accordance with the formula approved in F. W. Woolworth Co, 90 NLRB 289 (1950), with interest computed in the manner prescnbed in Florida Steel Corp., 231 NLRB 651 (1977).9 [Recommended Order omitted from publication.] 9 See generally Isis Plumbing Co, 138 NLRB 716, 717-721 (1962)