Herb Kohn Electric Co

HERB KOHN ELECTRIC CO 815 Herb Kohn Electric Co and International Brother hood of Electrical Workers, Local No 292, AFL-CIO Case 18-CA-7054 15 October 1984 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND HUNTER On 16 September 1982 Administrative Law Judge Mary Ellen R Benard 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, 1 and conclusions only to the extent consistent with this Decision and Order and to adopt the recommended Order as modified Contrary to the judge we do not find that Super visor LeRoy Bosak's alleged interrogation of em ployee John Deg about a union meeting constituted a violation of Section 8(a)(1) of the Act On 13 January 1981 Deg contacted some of the Respond ent s employees to see if they were interested in at tending a union meeting the evening of the next day Deg called Bosak and asked him if he wanted to go to the meeting Bosak told Deg that he could not attend but wanted to know what happened At work on 14 January Bosak asked Deg why the men wanted a union shop Deg replied that no commitments were being made and that they simply wanted information When Deg told Bosak the union wage scale Bosak replied that the Union would not do him much good because he would have to take a cut in pay The next day Bosak asked Deg what happened at the meeting Deg told him but did not specify who attended He also told Bosak that he felt good about the Union and that it would be good for the apprentices to have a union apprenticeship pro gram Bosak said that it would not do him much good and that the Union had never helped him We note that the judge s decision was rendered prior to Tour decision in Rossmore House, 269 NLRB 1176 (1984), where we held that similar questioning by an employer, in the absence of threats or promises, does not necessarily interfere with, restrain, or coerce employees in violation of Section 8(a)(1) Here Deg initiated the discussion concerning the meeting by asking Bosak—whom the employees apparently did not view as a super visor—to attend Bosak made a couple of bland comments 2 concerning the interest in the Union among the Respondent's employees The following day Bosak asked Deg what happened at the union meeting We find that these inquiries were isolated, spontaneous, and devoid of coercive intent and no violation of Section 8(a)(1) 3 Accordingly, we dis miss that portion of the complaint which alleges such a violation 4 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re spondent, Herb Kohn Electric Co St Louis Park, Minnesota, its officers, agents, successors, and as signs shall take the action set forth in the Order as modified Substitute the following for paragraph 1(a) (a) Interrogating employees about what they think of the Union 2 Although the judge found that the incidents occurred on two consec unve days and could not be considered Isolated she did note that the questions may appear relatively innocuous 3 For the reason set forth by the judge Member Zimmerman would find that Bosak s questions to Deg about why the employees were inter ested in a union and about what occurred at the union meeting were co ercive and therefore violated Sec 8(a)(1) of the Act 4 Chairman Dotson would also dismiss the portion of the complaint on the grounds that the judge Improperly permitted the General Counsel to amend the complaint at the hearing to include this allegation The Re spondent was not apprised of the fact that the issue of a coercive interro gallon would have to be litigated When the judge granted the General Counsel s motion to amend the complaint she asked counsel for the Re spondent how much time he would require to prepare a defense After consultation with Bosak and Kohn during the lunchbreak counsel deter mined that it would be impossible to prepare a defense to a complaint containing entirely new allegations which had been amended near the conclusion of the heanng Although granting the amendment under these circumstances did not deny the Respondent the barest minimum of due process it did not treat the Respondent in a just manner as our regula tions require Requiring the Respondent to defend against a new allega fion near the close of its case may have deprived the Respondent of the protection afforded by the Board s sequestration rule In addition permit ting the General Counsel to introduce a new allegation after the close of his case near the end of the hearing does not serve the interests of Judi cial economy or orderly adjudication See Seaward International 270 NLRB 1034 (1984) DECISION STATEMENT OF THE CASE ' 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 Cu- 1951) We have carefully examined the record and find no basis for reversing the findings MARY ELLEN R BENARD Administrative Law Judge The original charge in this case was filed on January 27 1981 1 as amended on January 30 by International 'All dates herein are 1981 unless otherwise indicated 272 NLRB No 122 816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Brotherhood of Electrical Workers Local No 292 AFL-CIO (the Union) against Herb Kohn Electric Co (Respondent) On March 25 the complaint issued alleg ing in substance that Respondent committed various acts which interfered with restrained or coerced em ployees in the exercise of rights guaranteed in Section 7 of the National Labor Relations Act thereby violating Section 8(a)(1) of the Act 2 and that Respondent dis charged employees John Deg and Eugene Harp because of their union and/or other protected concerted activi ties thereby violating Section 8(a)(3) and (1) of the Act Respondent filed an answer in which it denied the com mission of any unfair labor practices A hearing was held before me in Minneapolis Minne sota on November 30 and December 1 Thereafter the General Counsel and Respondent filed briefs which have been considered On the entire record in this case and from my observa tion of the witnesses and their demeanor I make the fol lowing FINDINGS AND CONCLUSIONS I THE BUSINESS OF RESPONDENT Respondent is a Minnesota corporation with an office and place of business in St Louis Park Minnesota where it is engaged in electrical maintenance work in eluding the repair and maintenance of electrical signs and lighting for commercial businesses During the calen dar year ending December 31 1980 Respondent in the course and conduct of its business operations purchased and received at its St Louis Park facility products goods and mateials valued in excess of $50 000 either di rectly from points outside the State of Minnesota or from other enterprises located within the State of Minnesota each of which other enterprises had received said prod ucts goods and materials directly from points outside the State of Minnesota The answer admits and I find that Respondent is an employer engaged in commerce within the meaning of the Act and I find that it will ef fectuate the policies of the Act to assert jurisdiction herein II THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of the Act III THE ALLEGED UNFAIR LABOR PRACTICES A The Union Organizing Campaign Respondent a corporation owned by its president Herbert A Kohn and his wife is in the business of sign and lighting maintenance and electrical repairs and main tenance About 80 to 90 percent of Respondent s business is repairs and maintenance of lighting and signs and the remaining 10 to 20 percent is electrical work such as wiring and the installation of electrical outlets for both residential and commercial buildings As of early January Respondent employed two licensed electricians John 'As discussed below the complaint was amended at the hearing to allege additional violations of Sec 8(a)(1) Deg and Gregory McKeever a licensed maintenance electrician LeRoy Bosak who the General Counsel al leges is a supervisor and approximately seven mainte nance employees Employee John Deg one of the two electricians cre dibly testified that he telephoned the Union s office on January 6 and spoke to Representative John Williams about organizing Respondent s employees Deg and Wil hams arranged to have a meeting for the employees with union representatives on January 14 and Deg contacted some of Respondent s employees told them about the meeting and asked them if they would be interested in the Union Among those contacted by Deg was Bosak whom Deg called on January 13 and asked if he wanted to go to the meeting Bosak replied that he could not attend but according to Deg further said he wanted to know what happened According to Deg s credible and uncontradicted testi mony the next morning while he was in Kohn s office with Bosak and Kohn s father in law Bosak asked him why the men wanted a union shop Deg ^ephed that they simply wanted information and that no commitments were being made and he also told Bosak the union wage scale Bosak responded that the Union would not do him much good because under that scale he would have to take a cut in wages Deg McKeever and maintenance employees Sidney Simonson and Henry Shaffer attended the union meeting that evening Toward the end of the meeting the union representatives passed out authorization cards and all four employees signed them Deg also took additional cards which he later gave to other employees to sign During the morning of January 15 Bosak asked Deg what had happened at the meeting and Deg told him but did not specify who had been present Deg told Bosak that he felt good about the Union and that it would be good for the apprentices to have a union apprenticeship program Bosak said that it would not do him much good and that the Union had never helped him 3 On January 27 the Union filed a petition in Case 18- RC-12894 and a hearing on that petition was conducted on February 9 Pursuant to a Decision and Direction of Election issued by the Regional Director for Region 18 of the National Labor Relations Board an election was conducted on March 18 The election did not result in a certification of the Union and the parties stipulated that as of the time of the hearing in the instant case there were no further proceedings in the representation case 3 My findings as to Deg s conversations with Bosak on January 13 14 and 15 are based on the credible testimony of Deg who impressed me as a candid witness who testified forthnghtly and exhibited good recollec ton Bosak substantially corroborated Deg s testimony that on January 13 Deg invited him to the union meeting and that he said he would be unable to go However Bosak did not testify about the January 14 con versation and Kohn s father in law was not called as a witness With re spect to the discussion on January 15 Bosak testified that Deg told him about the meeting and said that there was a lot of things the union could do for us and that he replied that he did not think the union could do anything for us Thus Bosak s version of the January 15 con versation is not substantially inconsistent with Deg s testimony HERB KOHN ELECTRIC CO 817 B The Alleged Violations of Section 8(a)(1) of the Act 1 Supervisory status of Bosak In his Decision and Direction of Election in Case 18- RC-12894 the Regional Director found that Bosak was not a supervisor within the meaning of the Act At the hearing in that proceeding Kohn testified that Bosak did not have the authority to hire fire transfer suspend lay off recall or promote any other employees and that Kohn would not follow without further investigation a recommendation made by Bosak that an employee be hired or fired Kohn further testified that Bosak did not supervise the job performance of other employees but worked along with them that Bosak did not interview job applicants give any recommendations or make eval uations of other employees performance make decisions to transfer employees from one job to another without Kohn s knowledge or consulting with him and that he had no authority greater than that of other employees or any privileges or preference in terms of his employment conditions that were not enjoyed by other employees Kohn also testified that sometimes Bosak was in charge of a job on which two or three other men were working but that he had also put other employees in charge of some jobs that he and Bosak went over the jobs each morning and made the assignments together although Bosak might hand them out to the men that Bosak was not generally authorized to change work assignments on his own (although there had been exceptions when Kohn was unavailable) and that there were times when em ployees might finish a job early and would take it on themselves to return to the shop Bosak did not testify in that proceeding At the hearing in the instant case in contrast Kohn testified that Bosak may authorize employees to work overtime and grant time off other than for vacations that Bosak assigns work although Bosak consults Kohn a couple of times per week about the assignments that Bosak warns employees if they are not performing their job adequately and he does not have to consult Kohn before such warnings although he generally does and that Bosak trains new employees on his own and has on occasion suggested a bonus or a wage increase In an ap parent attempt to explain the inconsistency between his testimony in the representation hearing that Bosak does not give evaluations of other employees performance and his testimony at the instant hearing that Bosak had the power to warn employees that they were not per forming adequately Kohn testified that Respondent has no written warning system and that when there are prob lems with a job Kohn relies on Bosak to ascertain if there was something that an employee did not do or did wrong Kohn further conceded that his statement in the representation hearing that Bosak had no more powers than other employees may be inconsistent with his testi mony that Bosak schedules the work and attempted to explain his inconsistent testimony with regard to Bosak s authority to make work assignments by saying that Bosak makes assignments of service calls for sign and lighting maintenance and small electrical repairs while Kohn assigns the electrical work However Kohn con ceded that he did not make that distinction in his earlier testimony I find Kohn s attempts to explain the incon sistencies between his testimony in the representation proceeding and his testimony in the instant case uncon vincing and further find that the discrepancies between his testimony at the two hearings are indicative of his overall lack of candor as a witness Bosak testified in the instant hearing that he has the authority to warn employees that their job performance is inadequate that he has given such warnings and that he can recommend that employees receive a raise in salary Bosak further testified that although he cannot grant vacation time and has not hired employees he as signs work4 and grants time off trains new employees by working with them and showing them the work and that he authorizes overtime without checking with Kohn beforehand \ Bosak also testified that he has recommend ed that certain employees be discharged including as discussed below Eugene Harp although it is not clear how much weight was given to these recommendations Bosak further testified that as of January he could warn employees about problems with their work on his own but that as of the time of the hearing he had to talk to Kohn before giving such warnings At the heanng the General Counsel moved to amend the complaint to allege that Bosak is a supervisor within the meaning of the Act and that he had committed cer tam violations of Section 8(a)(1) of the Act Respondent objected to the proposed amendment on grounds that the Board had previously determined that Bosak was not a supervisor and that Respondent had no advance notice that Bosak s status would become an issue in the case I granted the motion to amend the complaint 5 but offered Respondent an opportunity to prepare a defense to the new allegations In light of Bosak s testimony which I credit that he has authority to warn employees about poor perform ance grants time off and assigns work for the mamte nance employees I conclude that he is a supervisor within the meaning of Section 2(11) of the Act 2 The alleged interrogations by Bosak As described above Deg invited Bosak to the January 14 meeting and Bosak said that he was unable to attend The amendments to the complaint allege that Bosak s 4 It appears clear from the record that Bosak assigns work only to the maintenance employees not to the electricians 5 It is well established that even where an individual has been found in a representation proceeding to be an employee the question of his or her status may be litigated in a subsequent unfair labor practice proceeding particularly where as here there is a specific allegation that the individ ual is a supervisor and the individual is alleged to have committed unfair labor practices Hechson Mfg Co 249 NLRB 791 (1980) I recognize that in Herkson the complaint specifically alleged that an individual pre viously found to be an employee was a supervisor while in the instant case this allegation was not made until the General Counsel moved to amend the complaint However the General Counsel s motion to amend the complaint was based on Bosak s testimony and on Kohn s testimony regarding Bosak s duties which as noted above was somewhat at vani ance from Kohn s testimony in the prior representation proceeding I thus find no merit to Respondent s contention that the amendment should not have been allowed because Respondent had not previously been put on notice that Bosak s status would become an Issue where a new corn plaint allegation is prompted by changed testimony of Respondent s agent and witness Respondent should not be permitted to claim surprise 818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD questions of Deg on January 14 as to why the men wanted to have a union shop and on January 15 as to what happened at the meeting the previous evening vio lated Section 8(a)(1) of the Act 6 Respondent contends that Bosak s comments were casual questions which do not rise to the level of coer cive interrogation The Board has held that where inter rogation is isolated and the atmosphere is free of coer cive conduct such questions as those posed by Bosak to Deg are not per se unlawful 7 I also note that the initial conversation between Deg and Bosak relating to the Union was prompted by Deg s inquiry of Bosak on Janu ary 13 as to whether the latter would like to attend the union meeting scheduled for the next day Nonetheless I conclude that Bosak s questions of Deg on January 14 and 15 violated the Act Bosak did not articulate any le gitimate reasons for his questions nor did he provide any assurances that Deg or other employees would suffer no reprisals for their union activity In addition although the questions may appear relatively innocuous it is note worthy that the incidents occurred on 2 consecutive days and thus cannot be considered isolated Further Deg did not initiate the conversation on January 14 and 15 and in any event the Board has held that the facts that a conversation is initiated by an employee and occurs in a casual and relaxed atmosphere provide no legal basis for a finding that the conversation is not coer cive 8 In these circumstances I conclude that Bosak s questions to Deg about why the employees were inter ested in a union and about what occurred at the union meeting were coercive and therefore violated Section 8(a)(1) of the Act 9 3 Alleged unlawful statements and questions by Kohn Employee Gregory McKeever credibly testified that on January 27 he was working on a job at a firm called Vic Manufacturing when Kohn took him into the lunch room and asked him how the job was going and what he thought of the Union According to McKeever Kohn said that he did not think he couldilive under union rules and mentioned that there would be one or two layoffs but that McKeeve'r s job was not in jeopardy Kohn did not deny the comments and questions attributed to him by McKeever but testified that the conversation oc curred on January 28 rather than on January 27 " How 6 On cross examination Bosak was asked whether in the January 15 discussion he had asked Deg who attended the meeting and he said that he may have Bosak also conceded that he might have told Deg that he felt the employees had gone behind his back by contacting the Union and may have expressed his opposition to the Union However Bosak did not expressly state that he had made these comments and Deg in his recitation of this conversation did not testify that Bosak had made any such statements I therefore find that although the record establishes that Bosak asked Deg what happened at the meeting and that he said that the Union could not do much for the employees it is not established that he asked who was at the meeting or indicated that he felt the men had gone behind his back In any event the General Counsel has not alleged any unfair labor practices based on Bosak s testimony in this regard 7 Mark I Tune up Centers 256 NLRB 898 905 (1981) 6 Hanes Hosiery Inc 219 NLRB 338 (1975) 9 Midwest Electric Mfg Corp 260 NLRB 174 (1982) is As discussed below the date of this conversation is of significance with respect to the discharges of Deg and Harp because Kohn contends ever McKeever testified that he was sure the conversa lion occurred on January 27 because on the previous evening another employee had telephoned him and told him that Deg had been laid off that day it is undisputed that Deg was discharged on January 26 I credit McKe ever who was a candid and forthright witness and ex hibited good recall of events and therefore find that the conversation occurred as he testified and that it occurred on January 27 I further find that Kohn s comment that he did not think he could live under union rules and that there would be one or two men laid off was a threat of reprisal for employees union activity and that his ques tion of McKeever as to what the latter thought of the Union was in this context coercive I therefore find that Kohn coercively interrogated an employee about his union sympathies and threatened employees with adverse consequences of unionization and that this conduct vio lated Section 8(a)(1) of the Act Employee Henry Shaffer an apprentice electrician testified that on January 27 at the Vic Manufacturing plant Kohn said that he had heard that a few of the em ployees had been to a union meeting and that if Shaffer was interested in joining the Union it would be in his in terest to try to join a union shop because Kohn would not work the shop under union conditions Kohn did not deny that this conversation occurred but testified that the date was January 28 rather than January 27 I credit Shaffer who like McKeever and Deg appeared to be a truthful witness and I find that Kohn made the state ments Shaffer attributed to him and that the conversation occurred on January 27 I further find that Kohn s state ments that if Shaffer wanted to join the Union he should find a union shop and that Kohn would not work his shop under union rules were in effect a threat of reprisal against employees for engaging in union activity and therefore violated Section 8(a)(1) of the Act 11 McKeever testified that 2 or 3 weeks after the January 27 conversation with Kohn he was again working at the Vic Manufacturing plant when he and Kohn had a second conversation about the Union On that occasion according to McKeever Kohn asked him what he thought of the Union and McKeever replied that he thought the benefits were good especially the pension plan Kohn stated that he did not think the Union would be that good for the men because under the Union s wage structure some of the maintenance men would have to be classified at the top rate of pay and he did not think there was any sense in paying top wages to a man who was not licensed so he might as well let those em ployees go Kohn did not testify about this incident and thus did not deny the statements attributed to him I credit McKeever and conclude that in this conversation Kohn threatened that if the Union represented the em ployees some of the maintenance men would be terminat that at the time they were discharged on January 26 and 27 respective ly he had no knowledge of any union activity by his employees " The complaint does not allege and the General Counsel does not contend that Kohn s comment that he had heard that some employees had been to a union meeting gave an impression of surveillance of em ployees union activity or was otherwise coercive and I therefore make no finding as to whether this statement violated Sec 8(a)(1) of the Act HERB KOHN ELECTRIC CO 819 ed and that in the context of this statement his question to McKeever about what the latter thought about the Union was also coercive I therefore find that both the threat and the question violated Section 8(a)(1) of the Act 12 C The Alleged Violations of Section 8(a)(3) and (1) of the Act 1 The discharge of John Deg Deg began working for Respondent in April 1980 as a licensed electncian As descnbed above Deg initiated the organizing campaign by contacting the Union ar ranged the January 14 union meeting and talked to other employees about the Union and asked them to sign au thonzation cards On Monday January 26 Deg worked with Shaffer at the Vic Manufacturing job installing light fixtures Ac cording to the credible testimony of Deg and McKeever the work basically consisted of taking down the cover on the old fixtures and putting in new fixtures and covers although the plant had originally been wired for incandescent lighting and the new fixtures were for fluo rescent lighting most of the wiring was already in place and the work was not particularly difficult However the job required use of a mechanical lift truck which Deg had used before but not at that job Shaffer was the maintenance helper assisting Deg on the job and used the truck 13 According to Deg about 3 30 that afternoon Kohn came to the Vic Manufacturing plant and asked Deg to come to the shop between 4 30 and 5 p m When Deg arrived at the plant about 5 o clock Kohn asked him about the progress on an office building job and Deg said that he had about five outlets left to put in Kohn then asked what Deg had done on that job the previous Friday and Deg told him At that point Kohn told Deg that work was slow and that he would have to let two or three people go Deg replied that Respondent could not pay people if they were not doing anything and Kohn handed him his check and said he was sorry Deg then got his tools and left the shop 2 The discharge of Eugene Harp Harp began working for Respondent in 1979 as a maintenance employee having previously worked for Kohn when the latter owned another company in 1961 Harp signed an authorization card for the Union on Jan uary 19 but did not otherwise participate in the Union s organizing campaign 12 The complaint in pars 5(c) and (e) alleges that Kohn made addi bona] coercive statements on other occasions However no evidence was adduced at the hearing in support of these allegations and I shall there fore recommend that they be dismissed t 13 McKeever normally worked on the Vic Manufacturing job but was not working that day The employees worked four 10 hour days and then had 4 days off every other weekend thus an employee would work a sequence of Monday through Thursday have Friday through Monday off work Tuesday through Friday take off Saturday and Sunday and then begin the cycle again Thus Monday January 26 was the last day of a long weekend for McKeever Kohn discharged Harp on the morning of January 27 telling him that he was discharged for lack of work 3 The parties contentions The General Counsel contends that Deg and Harp were discharged in reprisal for their union activity Re spondent contends however that Kohn was not aware of any union activity at the time of the discharges and that the two employees were discharged solely because of a lack of work and because there had been complaints about their work For the reasons discussed below I find no merit to Respondent s contentions 4 Discussion a Respondent s knowledge of union activity Respondent contends that Kohn was not aware of any union activity among the employees until January 28 when he received a letter from the Board s Regional Office apparently notifying him that the Union had filed the petition in Case 18-RC-12894 In light of my find mgs above that Kohn spoke with Shaffer and McKeever about the Union on January 27 I do not credit his testi mony that he knew nothing about any union activity among his employees until January 28 As discussed above I have found that Bosak was a supervisor and it is undisputed that he was aware of the union activity as early as January 13 when Deg told him about the union meeting to be held the next evening Further Bosak has known Kohn for over 20 years and has worked for him for most of that period In these circumstances I con dude that it is appropriate to impute Bosak s knowledge of the union activity to Respondent 14 Indeed in light of Bosak s long association with Kohn I find it most unlike ly that he would not have advised Kohn of the Union s organizing campaign and of Deg s role in that campaign shortly after he himself became aware of it I therefore conclude that by January 26 Kohn was aware of the union activity among his employees in general and of Deg s activity in particular b Respondent s asserted reasons for the discharges (1) John Deg In support of the contention that Deg was discharged because of a lack of work Kohn testified that in April or May 1980 electrical work started to decline considerably and that consequently Respondent employed only one electrician Deg until December In early December 1980 Respondent obtained the Vic Manufacturing job Because Kohn calculated that that job would require 3 or 3 1/2 months for an electrician and a helper he hired 14 Interestingly Bosak was called twice as a witness on behalf of Re spondent and as noted above it is undisputed that he knew of the union activity as early as January 13 but he was not asked whether he advised Kohn of the organizing campaign Consequently I find inapposite those cases which hold that supervisory knowledge should not be imputed to the employer where the supervisor is not Involved in the allegedly dis cnminatory activity and credibly denies communicating his knowledge of the union activity to higher management Cf Kimball Tire Co 240 NLRB 343 344 (1979) 820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD McKeever who worked part time in December 1980 and began working full time the beginning of January It is undisputed that most of the work on the Vic Manufac tunng Job was performed by McKeever although it is also undisputed that Deg worked on that job occasional ly 15 Kohn testified that on January 20 Respondent was to have received a second shipment of light fixtures for the Vic Manufacturing Job but there was a mistake in the order and the fixtures received were not usable thus Respondent had to wait for a new shipment which did not arrive until the end of February In consequence electrical work which is normally 10 to 20 percent of Respondent s business fell to less than 10 percent and therefore according to Kohn he decided that he would have to lay off one electrician Kohn s testimony as to the decline in work for the electricians is not contradict ed but it is also not substantiated 16 Deg testified that the Jobs he was working on were all incomplete as of the time of his discharge Kohn in con trast testified that there were no other Jobs at that time which would take more than a day or two at most to finish Kohn further testified that he chose to terminate Deg rather than McKeever because McKeever was a better electrician and he had had complaints about Deg s work I find unconvincing Respondent s contention that Deg s discharge was prompted by a lack of work for although presumably Respondent had in its possession business records such as bills and orders for electrical work which would have shown how much electrical work had been performed on a monthly basis prior to Deg s discharge and how much remained to be done at the time of the discharge no such documents were intro duced Indeed the only evidence of the alleged decline in the amount of work available for the electricians is Kohn s uncontradicted testimony that a shipment of fix tures to be used in the Vic Manufactunng job had to be sent back On the other hand Deg credibly testified that as of the time of his discharge he had not completed the work at the office building and that in addition to that Job and the work at Vic Manufacturing there was work left to be done at a firm called the Mail House Inc a Job for Rabbi Grossbaum and a remodeling Job for Rabbi Ben ditt Deg further credibly testified that prior to his dis charge Kohn had not said anything about work being slow or needing to lay off employees and that he had never been advised of any complaints about his work Although Kohn could have decided to retain McKe ever who had been working on the Vic Manufacturing " However when Deg worked on that job he Installed fans and did not work on the lighting rewiring which was performed by McKeever 16 Both the General Counsel and Respondent Introduced documents which purport to show the number of service calls made by Respondent during 1980 and 1981 However these documents list total number of calls without breaking them down into calls that were made by electri clans versus those made by maintenance employees Thus although these documents demonstrate that there were fewer calls made in Respondent s business as a whole in January 1981 than there were in December 1980 they do not show if there was a decline specifically in electrical work Further it appears from the evidence that much of the work performed by the electricians was on jobs which continued for several days and apparently those jobs are not reflected in these documents Job to perform the other Jobs which Deg had started but had not completed at the time of his discharge with a view to putting McKeever back at Vic Manufacturing when the parts came in I do not credit Kohn s assertion that he kept McKeever and discharged Deg because McKeever was a better electrician Although Kohn con tended that he had received complaints about Deg s work his testimony in this regard was vague and uncon vincing and there was no other evidence documentary or otherwise that Deg s work had been unsatisfactory Further as indicated above Kohn was not a credible witness His testimony lacked candor and he appeared to tailor his testimony to serve Respondent s—and his own—interest Deg however impressed me as a credible witness and I believe his testimony that he had not re ceived any complaints about his work from Kohn or anyone else Also I note that in a letter which Kohn sent to a Board agent after receiving notice of the instant unfair labor practice charge he stated that both Deg and Harp were discharged for lack of work and made no mention of any complaints about the work of either man (2) Eugene Harp As noted earlier when Harp was discharged Kohn told him that he was being laid off for lack of work Kohn expressed this same reason to the Board agent in vestigating the unfair labor practice charges At the hear mg however Respondent contended that Harp like Deg was laid off for two reasons lack of work and un satisfactory job performance In support of the contention that there was not enough work for all the maintenance employees Respondent relies on the documentary evidence of the number of service calls which indicates the following 17 Avg Calls per Day 6/80 216 21 10 29 7/80 189 22 8 59 8/80 207 21 9 86 9/80 258 21 12 29 10/80 258 23 11 22 11/80 230 19 12 11 12/80 273 1821 13 00 1/81 225 21 10 71 Review of the table demonstrates that there were fewer service calls in January than there had been in any month since August 1980 However it is undisputed that in the summer of 1980 Respondent did not lay off any employees due to the lack of work but instead went to a shorter workweek for all employees Respondent has 17 This table is based on Respondent s exhibit which Kohn testified was probably more accurate than a General Counsel exhibit which also purported to show the number of service calls Respondent made during various months According to Kohn he prepared the General Counsel s exhibit while Respondent s exhibit was prepared by clerical personnel in his office and it is undisputed that certain calls were apparently mad vertently not reflected in the General Counsel s exhibit ' 8 Apparently the employees were off on December 26 a Friday Month Total Calls Days Working 1 HERB KOHN ELECTRIC CO 821 not offered an explanation why a similar procedure was not followed when work declined in January Kohn testified that he selected Harp for discharge rather than one of the other maintenance men because Harp s work performance was not satisfactory Specifi cally Kohn testified that he had conversations with Bosak between August and October 1980 in which Bosak said that he wanted Kohn to discharge Harp because they were short one truck" and his performance was poor According to Kohn he told Bosak that he wanted to wait and see if the number of service calls increased On cross examination Kohn testified that he had discus mons with Bosak about Harp s allegedly poor work during all of 1980 Bosak however testified that starting the latter part of August or the first part of September he talked to Kohn and complained about Harp s work and recommended in September that Harp be discharged because they were short one vehicle and he felt that Harp was doing the poorest work Both Bosak and Kohn testified that Kohn decided to let Harp stay until after the December holidays Harp testified that a couple of times in the spring and summer of 1980 Kohn told him that he was taking too long on his jobs and on one occasion said I don t know what I am going to do with you but never threatened to fire him I credit Harp s testimony that the complaints about his work were in the summer of 1980 Thus although it appears that there were complaints from Bosak about Harp s work at that time and that Harp was told about these complaints neitlier Kohn nor Bosak specifically warned Harp that a failure to improve his performance could lead to his discharge and there is no evidence of poor work by Harp in January which might have precipitated Kohn s determination to dis charge him In this regard I specifically do not credit Kohn s and Bosak s testimony that Kohn made a decision to keep Harp on until after Christmas As noted I do not find Kohn to be a credible witness on many issues and although I have credited Bosak s testimony on some mat ters his testimony in this regard struck me as less than candid 2° 5 Analysis and conclusions r Inasmuch as I have found that Respondent was aware of the union organizing campaign and of Deg s specific activities on behalf of the Union by January 26 and in view of the timing of the discharges and the animosity toward the Union expressed by Kohn in his late January conversations with McKeever and Shaffer I conclude that the General Counsel has made a prima facie show ing that Deg s and Harp s union activity was a motivat mg factor in Respondent s decision to discharge them 21 Having discredited the testimony of Respond 12 One of the service trucks had been damaged and was not replaced 22 It is worth repeating here the often quoted maxim that [lit is no reason for refusing to accept everything that a witness says because you do not believe all of It nothing is more common in all kinds of judicial decisions than to believe some and not all NLRB v Universal Camera Corp 179 F 2d 749 754 (2d Cir 1950) 21 Wright Line 251 NLRB 1083 1089 (1980) enfd 662 F 2d 899 (1st Cir 1981) Limestone Apparel Corp 255 NLRB 722 (1981) ent s witnesses as to the reasons for and circumstances surrounding the discharges of Deg and Harp I further conclude that the reason Respondent discharged the two employees was not a lack of work or dissatisfaction with their job performance but a desire to frustrate the Union s organizing campaign I therefore find that Re spondent has not come forward with credible evidence to rebut the General Counsel s prima facie case and that by discharging Deg and Harp Respondent violated Sec ton 8(a)(3) and (1) of the Act 22 On the basis of the above findings of fact and the entire record in this case I make the following CONCLUSIONS OF LAW 1 _ 1 Herb Kohn Electric Co is an employer engaged in commerce within the meaning of Section 2(2) (6) and (7) of the Act 2 International Brotherhood of Electrical Workers Local No 292 AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act 3 By interrogating employees about what happened at union meetings why they wanted to be represented by a union and what they thought about the Union and by telling employees that Respondent could not operate under union rules threatening employees with layoff and telling employees that if they were interested in join ing the Union they should go to work in a union shop Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act 4 By discharging employees John Deg and Eugene Harp and refusing to reinstate them because of their union activity Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) and Section 2(6) and (7) of the Act 5 A preponderance of the credible evidence does not establish that Respondent has otherwise violated the Act THE REMEDY Having found that Respondent has engaged in certain unfair labor practices I shall recommend that it be or dered to cease and desist therefrom and take certain af firmative action designed to effectuate the purposes of the Act As I have found that Respondent unlawfully dis charged John Deg and Eugene Harp I shall recommend that Respondent be ordered to offer them immediate and full reinstatement to their former jobs or if those jobs no longer exist to substantially equivalent jobs without prejudice to their seniority or other rights and privileges previously enjoyed I shall further recommend that Re spondent be ordered to make them whole for any loss of earnings they may have suffered as a result of the dis crimination against them by payment to them of ,the amount they normally would have earned from the date 22 Although Harp s union activity was limited to signing an authonza lion card in light of the timing of his discharge I conclude that it was nonetheless motivated by Respondent s desire to diminish its employees support for the Union See Wright Plastic Products 247 NLRB 635 642 (1980) 822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of their terminations until the dates of Respondent s offers of reinstatement less net earnings in accordance with F W Woolworth Co 90 NLRB 289 (1950) to which shall be added interest to be computed in the manner prescribed in Florida Steel Corp 231 NLRB 651 (1977) 23 I shall also recommend in accordance with the Board s recent Decision in Sterling Sugars 261 NLRB 472 (1982) that Respondent be ordered to expunge from its records any references to Deg s and Harp s unlawful discharges and to provide wntten notice to them of that expunction and to inform them that Respondent s unlaw ful conduct will not be used as a basis for further person nel actions concerning them On these findings of fact and conclusions of law and on the entire record I issue the following recommend ed24 ORDER The Respondent Herb Kohn Electric Co Mmneapo us Minnesota its officers agents successors and assigns shall I Cease and desist from (a) Interrogating employees about what occurred at union meetings or what they think of the Union (b) Threatening employees with reprisal for their union activity (c) Discharging or otherwise discriminating against employees in regard to hire or tenure of employment be cause they engaged in union activities (d) In any like or related manner interfering with re straining or coercing employees in the exercise of their right to engage in or refrain from engaging in any or all of the activities specified in Section 7 of the Act 2 Take the following affirmative action which is nec essary to effectuate the policies of the Act (a) Offer John Deg and Eugene Harp immediate and full reinstatement to their former jobs or if those jobs no longer exist to substantially equivalent positions without prejudice to their seniority or other rights and privileges previously enjoyed and make them whole for any loss of earnings they may have suffered as a result of the Re spondent s discrimination against them in the manner set forth in the section of this Decision entitled The Remedy (b) Expunge from its files any reference to the dis charges of John Deg on January 26 1981 and Eugene Harp on January 27 1981 and notify them in writing that this has been done and that evidence of these unlaw ful discharges will not be used as a basis for future per sonnel actions against them (c) Preserve and on request make available to the Board or its agents for examination and copying all pay roll records social security payment records timecards personnel records and reports and all other records nec essary to analyze the amount of backpay due under the terms of this Order " See Isis Plumbing Co 138 NLRB 716 (1962) 24 If no exceptions are filed as provided by Sec 102 46 of the Board s Rules and Regulations the findings conclusions and recommended Order shall as provided in Sec 102 48 of the Rules be adopted by the Board and all objections to them shall be deemed waived for all pur poses (d) Post at its St Louis Park Minnesota facility copies of the attached notice marked Appendix 25 Copies of the notice on forms provided by the Regional Director for Region 18 after being signed by the Re spondent s representative shall be posted it immediately upon receipt and maintained by it for 60 consecutive days in conspicuous places including all places where no tices 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 (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re spondent has taken to comply IT IS FURTHER ORDERED that the complaint allegations not specifically found herein be dismissed 25 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 of the United States Court of Appeals Enforcing an Order of the Nation al Labor Relations Board APPENDIX — NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT interrogate employees about their sym pathies for or activities on behalf of International Broth erhood of Electrical Workers Local No 292 AFL- CIO or any other labor organization WE WILL NOT threaten employees with reprisal for union activity WE WILL NOT discharge or otherwise discriminate against employees in regard to hire or tenure of employ ment or any term or condition of employment because they engage in union or other protected concerted activi ties WE WILL NOT in any like or related manner interfere with restrain or coerce employees in the exercise of the rights guaranteed in Section 7 of the Act to self organi zation to form join or assist labor organizations to bar gain collectively through representatives of their own choosing and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection or to refrain from any or all such activity WE WILL offer John Deg and Eugene Harp immediate and full reinstatement to their former jobs or if those jobs no longer exist to substantially equivalent jobs without prejudice to their seniority or other rights or privileges previously enjoyed and WE WILL make them whole for any loss of earnings they may have suffered as a result of our discrimination against them with interest WE iWILL expunge from our files any references to the discharges of John Deg and Eugene Harp on January 26 1981 and January 27 1981 respectively and WE WILL notify them thgt this has been done and that evidence of HERB KOHN ELECTRIC CO 823 these unlawful discharges will not be used as a basis for future personnel actions against them HERB KOHN ELECTRIC CO