Fixtures Mfg. Corp.

77X DECISIONS OF NATIONAL LABOR RELATIONS BOARD Fixtures Manufacturing Corporation and United Steelworkers of America, AFL-CIO-CLC. Case 17-CA-8171 August 27, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND TRUESDALIE On June 12, 1979, Administrative Law Judge James M. Fitzpatrick issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief, a and counsel for the General Counsel filed cross-exceptions and sup- porting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions of the Administrative Law Judge, as modified herein, and to adopt his recom- mended Order, as modified herein. The General Counsel excepts to the failure of the Administrative Law Judge to find that Estel Jay Halterman, Jr., was unlawfully discharged. We find merit in this exception. The Administrative Law Judge found that, be- cause of his union activities, Halterman was given a polygraph test on March 3, 1978. We agree. The Administrative Law Judge then found, however, that the polygraph test implicated Halterman in the thefts which had been taking place at Respondent's Kansas City facility, and, thus, that Respondent lawfully discharged Halterman on March 6, 1978, as a result of the polygraph findings. In doing so the Administrative Law Judge has failed to consid- er that the discharge was the direct product of Re- spondent's unlawfully motivated actions in subject- ing Halterman to the polygraph examination. The grounds upon which Respondent relied in discharging Halterman were obtained by Respond- ent during a polygraph examination which was un- dertaken because of Halterman's union activities. Thus, if Respondent had not unlawfully subjected Halterman to the test, it would not have had a basis for discharging him, and, we must assume, he would have continued in Respondent's employ. i Respondent has excepted to ce rlan credihility finidinlgs made h tIhe Admillistrat'c I aw Judge. It is he Board's established policy not to overrule all aidlnaiiistrative law judge's reolutlil, wilt respect I t redi- bilily unless he clear prepltnderance o all 1of the relesant citlenice coil- vinces us hat the rsolulinls are inciorrect Standard Drv Wiull Prlduwlls, /n.., 9 N RB 544 (1950)). erd. 5 18 2d tI2 (3d Cir 1951I We hase carefully examined the record and find n ba h;li flor retsCI. t g its flidings 251 NLRB No. 107 Failure to find the violation here would permit Re- spondent to act unlawfully and then avoid remedial measures merely because it learned somthing which under other circumstances might constitute cause for discharge. Therefore, since the discharge of Halterman is a direct product of Respondent's un- lawful action of subjecting Halterman to a poly- graph test because of his union activities, we find the discharge violated Section 8(a)(3) and (1) of the Act. AMENI)II) RI MIlI)Y2 We have found the discharge of employee Hal- terman violative of Section 8(a)(3) and (1) of the Act. The appropriate remedy for such a violation ordinarily would include restoration of the saturu quo ante in the form of reinstatement and backpay for the unlawfully discharged employee. At the hearing, however, Respondent argued that, if Hal- terman's discharge is found to be violative of the Act, Halterman has forfeited his right to reinstate- ment because a polygraph operator's report impli- cated him in the theft of Respondent's property. To be sure, an employee can be deemed to lose the right he might otherwise have to reinstatement because of some misconduct rendering that em- ployee unsuitable for rehire.: The burden of sub- stantiating the facts rendering such employee unfit for reinstatement is on the party seeking to block reinstatement. Thus, while the Board does not con- done theft or other serious misconduct on the part of employees, it requires actual proof of such mis- conduct before it will consider deny'ing reilstate- ment to an employee who has been unlaw'fully dis- charged. In asserting that Halterman should not be rein- stated, Respondent relies essentially on the results of polygraph tests. 4 Without deciding whether in other contexts an employer may rely on the results of polygraph tests, we are unwilling to find here C(oulsel fir te Geincral Cowuscl has xcplctd t Ibe aisece l t ill tel I)cision's tI(ltiet a prosistlMI for literest t o he bactpa5 If Williinl l.inddse, as well as the resloratlion of eniorit or itlicr rights ad pri% leges upionl his rsinstatencril Wve as e icluded such prrtl,,inri ill the amended notice Il accordanlce s ih Ilh{IAtit 1'1id. Ir., 242 N Rl) 1357 (1979). ure ha'e also substituted lie narro injutictC llanguage, "ifl any like ior related maniner," for the hrtader "il any ltller mannier lan- guage recomnicnded by the AdmTitisratise l.ass Judge in his Order : See. e g Southern itrws ( i.puntl. 124 NRI 749 (11959) Rt/r lstlre Milh,. /it., 122 NI R 929 (1959): Johin 1- ( us(/ (/tpanvtr. 152 NJ-RI) 929 (196sq); and Quei .,luo Spplice. Inc, 2t), NI R13 527 19731 I4 in the course o f Ihe so-called pretest ihlelsltes Collducted prior to hii, pol?gr;aph cianllllatiln, Ilalicrrllall adlitttd appripriailng sonlt nriin)or itctins rolt Respidclt ai returned table top/colrer di ider ad lie damlaged base tIat llatched. scress, Iltts, hI,. ptCCils. ailltd smllall piece if upholstery nlalcrial Ilovs, r. enlpliosee NMlder adnmitcd siiilar coitlucl ill it liretest ilersic e ad lMoulder ;as rlno discharged b Re sptonde Il. hit,t t is ot clear hat lalteritatii vI lid Ia c beell unflit toII Ci(ittrlt It Respolldt, lt's etlplos ilhstl lte additll iollal lpillliti ;1s ItI 1Hal1 terilli 's terniCI1 otf'ereld Ie plsgraphl lcratlir _ _.. FIXtURt-S MANI.FACTtRIN(G C()R()ORATION 77Q') that such polygraph tests constitute sufficiently probative evidence of theft or other misconduct for the Board to rely on them in determining whether an employee has lost his right to reinstatement.' Moreover, Respondent has not demonstrated that it would have discharged Halterman without the re- sults of the unlawfully administered polygraph test. In these circumstances, we shall order that Halter- man be reinstated with backpay. Therefore, in ad- dition to the remedial actions recommended by the Administrative Law Judge, we shall order that Re- spondent offer Estel Jay Halterman, Jr., immediate and full reinstatement to his former job or, if his job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights and privileges previously enjoyed, and make him whole for any loss of pay which he may have suffered by payment to him of a sum of money equal to that which he normally would have earned as wages from March 6, 1978, to the date of such offer of reinstatement, less his net earnings during said period, said backpay and inter- est thereon to be computed in the manner pre- scribed in F. W Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977). a ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied below, and hereby orders that the Respondent, Fixtures Manufacturing Corporation, Kansas City, Missouri, its officers, agents, successors, and as- signs, shall take the action set forth in the said rec- ommended Order, as so modified: 1. Substitute the following for paragraph l(d): "(d) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed them by Section 7 of the Act." 2. Substitute the following for paragraph 2(a): "(a) Offer to William Lindsey and Estel Jay Hal- terman, Jr., immediate and full reinstatement to their former positions or, if those positions 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 in the manner set forth in the section of this Decision entitled 'The Remedy,' as amended by the Board's Decision and Order." : See Rig ";" (rorpiorut i. 22 NL. Ri 1349 ( I976 ii Scc gerncrlly . rI P/l,,umh,,bm d Ilcou g (C,. 1 N.RB 7lr 106,2) 3. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX Noric. TO EMPI OYt.S POSITE) BY ORDER OI: THE NATIONAI. LABOR REI.ATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. The Act gives employees the following rights: To engage in self-organization To form, join, or assist any union To bargain collectively through repre- sentatives of their own choice To engage in activities together for the purpose of collective bargaining or other mutual aid or protection To refrain from the exercise of any' or all such activities. WE Wvli.. Nor discharge employees for en- gaging in union activities. WE Wll I. NOT threaten to lay off employees if they select a union to represent them, nor will we carry out such a threat. WF. Wll.l NOT interrogate employees about union activities. WIE WI.Ll NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL offer William Linsey and Estel Jay Halterman, Jr., immediate and full rein- statement to their former jobs or, if those jobs no longer exist, to substantially equivalent po- sitions, without prejudice to their seniority or other rights and privileges previously enjoyed, and make then whole for any loss of earnings they may have suffered because of the discrim- ination practiced against them, plus interest. FIXTURES MANUFACTURING CORPO- RATION DECISION JANMES M. FITZPArRICK, Administrative Law Judge: This proceeding began with unfair labor practice charges filed March 13, 178,L by United Steelworkers of Amer- ica, AFL-CIO-CLC (the Union), against Fixtures Manu- A I ll daie, hercin are In 1978 untle.s oltherkile indicated 780 DECISIONS OF NATIONAL LAB()OR RELATIONS BOARD facturing Corporation 2 (Respondent). A complaint based on these charges issued April 21 alleging that Respond- ent had engaged in unfair labor practices proscribed by Section 8(a)(l) and (3) of the National Labor Relations Act, as amended (the Act). More specifically, the com- plaint alleges that Respondent committed independent violations of Section 8(a)(1) of the Act by interrogating an employee respecting union activities on February 21 and on March 3, and by threatening employees on March 10 that they would be laid off if they selected the Union to represent them. 3 The complaint also alleges that Respondent unlawfully discriminated against em- ployees because of union activities by discharging Wil- liam Lindsey on March 3 and Estel Jay Halterman, Jr., on March 6. On May 5 Respondent answered, admitting jurisdictional allegations but denying the interrogations and the threat and denying that the terminations were unlawful. The issues were heard before me at Kansas City, Kansas, on August 31 and September 1. Based on the entire record, including my observation of the witnesses and consideration of the briefs filed by the General Counsel 4 and Respondent, I make the fol- lowing: FINDINGS OF FACT I. THE EMPLOYER Respondent, a Missouri corporation, is engaged ill Kansas City, Missouri, in the manufacture and distribu- tion of commercial furniture. It annually purchases di- rectly from sources outside Missouri goods and services valued in excess of $50,000. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. Respondent's principal officers are Norman Polsky, president, Bobbie Snyder, plant manager, and Max Point- er, controller. It employs about 100 employees in three locations. One building contains the corporate offices and the ship- ping and assembly department where about 20 employees work. An adjoining building houses the production de- partment. The warehouse is in a third building farther away. II. THE UNION The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE AI.LEGED UNFAIR l.ABOR PRACTICES A. The Theft Problem For about a year prior to the events involved in this case incidents of theft of company and employee proper- ty occurred with increased frequency. Finally, when a woman employee had $30 stolen from her purse, man- 2 Respondent's name appears as corrected at the hearing An additional allegation of unlawful inlerrogation of an employee's father was deleted from the complaint by amendment at the hearing. 4 No consideration has been given to a copy of a ubpenu duc(s teurnm appended to the General Counsel's brief The original subpenla as nei- ther offered nor received as part of the record in this case. See Rules arid Regulations and Statements of Procedure, Series 8. Sec 102.38. agement decided something had to be done to stem the tide. On February 17 Polsky, Snyder, and Pointer jointly decided to require suspect employees to take polygraph tests. The three most suspected, based on rumors and their opportunity to steal, were Branson, Ralph Moulder, and William Lindsey. Each of the three was asked to agree to the tests as an alternative to immediate dis- charge. Branson resigned rather than take the tests. The other two agreed. Pointer arranged with Paul Gearhart of Central Security Co. of America, Inc., to administer the tests. B. Polygraph Tests otn February 21 On Tuesday, February 21, Gearhart administered poly- graph tests to Lindsey, Moulder, and Billie Wiley, ' for the purpose of testing their veracity respecting thefts. Gearhart, whom I credit, testified that his questions re- lated only to those topics and did not involve union ac- tivities. Lindsey testified that, in addition to asking him ques- tions about thefts, Gearhart asked whether he knew of any union trying to get into the company, and that he (Lindsey) denied such knowledge. Between Gearhart and Lindsey, I credit Gearhart. The February 21 tests predated any of the union activities. The record as a whole indicates that Gearhart's independent company was engaged in connection with the theft problem and only for that problem. Gearhart, an experienced profes- sional in security work, testified that his notes respecting each test were complete and did not reflect any question regarding union activities. Finally, he testified credibly that he would not have asked a question as to union ac- tivities because he knew it would have been improper. Following the tests Gearhart on February 21 reported orally to Pointer on the results. He told Pointer that Lindsey did not appear to be involved in the stealing. The following day, Wednesday, February 22, he pre- pared written reports on each of the subject employees which were mailed to Pointer at his home. Pointer ad- mitted he received the Lindsey report as early as the evening of Friday, February 24, but not later than Monday, February 27. He read the report when he re- ceived it. The following morning at the plant he showed it to Snyder and they then conferred with Polsky regard- ing it. The report on Lindsey confirmed that he was not in- volved in the thefts but indicated he had knowledge of others stealing which he did not disclose. The report concluded: After reviewing all charts, it is the opinion of this examiner that Mr. William Lindsey was not truthful on General Series Relevant Question 5. The report gave that question and answer as follows: I Allhough Respondent', presidClit. Norman Polsky. testified that the third employee suspccted of theflt ais ralnlsorl. he did not lake thce test, and Io explanlation appears i the record ais to h by Wilty * as substlituted as the third subject for tests FIXTURES MANUFACTURING CORPORATION 781 Other than what you have already told me, do you know for sure of other employees stealing? ANSWER: NO-DECEPTIO IVDICA. TED. C. Union Activities Respondent has always operated nonunion. Manage- ment admittedly is opposed to having a union represent its employees. From time to time various unions have at- tempted to organize the employees but none has been successful. Respondent's supervisors are under instructions to report to higher management any information they re- ceive respecting union activities among the employees. Respondent's union animus, however, is considerably stronger than such instructions alone would indicate. Thus, subsequent to the discharge of Lindsey, Polsky, in a discussion with Lindsey's father, expressed the hope that the son would not be so foolish as to go to the Labor Board respecting his discharge. In addition, as found hereinafter, Respondent engaged in independent violations of Section 8(a)( ) which indicate significant union animus. On March 3 in terminating Lindsey, I'olsky interrogated him respecting his union activities, and in the course of a speech to all employees on March 10, the tone of which was antiunion, Polsky threatened to lay off junior employees if the Union were chosen. Organizing by the Union began in the following manner. In a meeting in mid-February at Armco Steel, Union Staff Representative Glenn Obermeier asked those present whether any smaller concerns in the area would be likely subjects for organizing. One Jesse Vasquez, an ex-employee of Respondent, having learned of Ober- meier's interest in smaller companies, suggested to Hal- terman on February 25 that they arrange a meeting with Obermeier. Halterman agreed. Vasquez then arranged for Obermeier to call Halterman the following day and set up a meeting for March I at a motel. Obermeier asked him to contact as many fellow employees as he felt he could trust to act as an organizing committee. Between the time he spoke with Vasquez and Ober- meier and the March I date, Halterman spoke with a number of employees in the plant, including employees in the shipping and assembly department where he worked, in an effort to develop an organizing committee. Among others, he spoke with Gary Griddine at his work station telling him he had talked with a union representa- tive and asking him if he would be on the committee and attend the March I meeting. Griddine expressed interest but said he would be unable to attend the meeting. During this conversation other employees were in the area, including Supervisor Mike Ziehmer and employee Gary Pointer, son of Max Pointer. Halterman also asked Ralph Moulder, Jr., to be on the committee and to attend the meeting. Gary Pointer and Ziehmer were also in the vicinity during this conversa- lion. Moulder then talked with other employees in ship- ping and assembly. During the day of March 1 Halterman spoke with Lindsey in the production building, asking him to attend the meeting that evening. Lindsey agreed to go. During this conversation a supervisor named Dixon stood a few feet away. That same day Moulder also spoke to Lindsey respecting the Union. Lindsey himself spoke with Dennis Street in the production building. That evening Halterman, Lindsey and Vasquez met with Obermeier at the Ramada Inn. They generally dis- cussed the subject of organizing Respondent's employees. Both Halterman and Lindsey signed union authorization cards for Obermeier. The following day, March 2, while at the plant, Hal- terman reported to Moulder about the meeting. Moulder continued to talk with other employees, including a lead- man named McHugh, about the advantage of organizing a union. According to Moulder, there was constant talk about the Union among the employees generally. D. Company Knowledge of Union Activity It is undisputed that responsible company officials knew there was union activity among the employees on March I. Respondent's night supervisor, Capehart, wrote a note dated March 1, which apparently referred to a union meeting, and left the note for Plant Manager Snyder. Snyder saw it on the morning of March 2 and delivered it to Pointer or to Polsky. The note itself was not produced. In testifying about it, none of the three officials satisfactorily explained what happened to it. Snyder testified the note indicated there was union activity in the plant. Polsky testified that Ca- pehart told him an employee had informed him of the union activity. Polsky also testified that he learned of the union meeting as of March I but then refused to reveal the identity of his informant. He admitted, however, that supervisors were directed to report union activity and that management had a good grapevine. The question here is the extent of company knowledge of union activity, more particularly, whether manage- ment knew the two alleged discriminatees were in- volved. In the circumstances failure to produce or to ex- plain satisfactorily the fate of the mysterious note which was in the control of company officials on March 2 war- rants the inference it would have been unfavorable to Respondent. International Union, United Automobile. Aerospace and Agricultural Implement Workers of America [Gyrodyne Co. of America] v. .L.R.B., 459 F.2d 1329 (D.C. Cir. 1972). Polsky testified he gave no significance to the note. But this does not square with his antiunion policy. Moreover, neither he nor Snyder was credible with respect to other pertinent aspects of the case. I simply do not believe intelligent witnesses who swear to tell the whole truth then deliberately do not. Relying on the inference noted above and my assessment of the credibility of Polsky and Snyder, I find that as of March 2 top management knew that Lindsey and Halterman met with Obermeier the night of March I and were ac- tively organizing for the Union. The finding of company knowledge of their involvement is further supported by the circumstances including the active organizing in the shops from February 27 through March 1, the proximity of the controller's son and of supervisors during the number of such employee discussions, the small number of employees (about 20) in the assembly and shipping de- partment where Halterman worked and which is close to the management offices, and the fact that Lindsey and 782 DECISIONS OF NATIONAL I. LABOR REI.A'IONS BOARI) Halterman (as well as Ralph Moulder) spoke to other employees about organizing. Wiese Plow Welding Co., Inc., 123 NLRB 616, 618 (1959). E. Termination of Lindsey Respondent terminated Lindsey on March 3. The Gen- eral Counsel and the Union contend he was terminated because of his union activities. Polsky testified he was discharged because the polygraph tests indicated he knew of others who were implicated in thefts and re- fused to cooperate in the investigation. On Friday, March 3, Snyder gave Lindsey an ultima- tum to either resign or be fired because of what was re- ported about his polygraph tests. Lindsey, pursuant to the Company's open door policy, asked to talk to Polsky. Polsky told him that he was being terminated be- cause he would not cooperate in the investigation re- specting the thefts, that he could resign and receive a good reference plus his vacation pay, or he could be fired and receive a poor recommendation, no vacation pay, and Respondent's opposition if he applied for an un- employment compensation. Polsky then asked him if he knew of other employees who were implicated in the thefts. Lindsey admitted that he did. Polsky also asked him if he knew about the Union, and he admitted he did. Polsky did not offer to let him stay if he cooperated. Thus, he was being terminated whether or not he then cooperated because he had already failed to cooperate during the tests. Snyder testified that in a conversation with Lindsey after his termination Lindsey told him he could not rat on his fellow employees. At the time he terminated him Polsky also asked Lind- sey if he knew about the Union. Lindsey admitted that he did. Polsky denied this interrogation. I do not credit his denial because, as noted earlier herein, I do not con- sider him an honest witness. I find the interrogation vio- lated Section 8(a)(l) of the Act. F. The Polygraph Tests of Halterman on March 6 Halterman, who was hired November 29, 1976, worked as a chair assembler and did other work includ- ing the boxing of chairs. According to Polsky he was im- plicated in the thefts by another employee (whom Polsky refused to identify) and he was also suspect because for several months prior to Christmas 1977 he had had access to the premises at night. On March 2 Polsky de- cided to require him to take the polygraph tests. Polsky's refusal to identify the employee who fingered Halterman is suspicious. Also, absent some believable explanation as to why the decision was made on March 2, the inference is compelling that but for his union activities he would not have been given the test. Even so, if the tests were valid, which they apparently were, then cause existed for his termination. Following Polsky's decision to require the tests Snyder sent Halterman to see Polsky who gave him an ultima- tum to either take the test or resign. Halterman protested that the tests were not being given to all employees, but he then decided to submit to the tests rather than resign. Gearhart administered the tests to him on Friday, March 3. Following the tests, the results were reported orally by Gearhart to Pointer. Gearhart later sent Pointer a written report of the results on Monday, March 6. Both the oral and written reports indicated that Halterman was implicated in the thefts. I do not credit the testimo- ny of Halterman that at the conclusion of the tests Gear- hart told him they showed he was innocent. On the morning of March 6, Plant Manager Snyder, together with Pointer, discharged Halterman for being implicated in the thefts. Later that afternoon in response to the appeals of Halterman's parents, Polsky rescinded the discharge and allowed him to resign. G. Company Meetings With Employees Respondent follows the practice of holding monthly meetings of employees. On March 6 Polsky called a reg- ular monthly meeting and addressed the employees for approximately 45 minutes on the subject of stealing. On March 10 Polsky called a special meeting of the employees and addressed them chiefly on the sub- ject of a union. He testified concerning this speech as follows: I said that there were rumors that there is union ac- tivity and I still didn't know if they were positive, if they were true or false, but it does give us an op- portunity to refresh the advantages of Fixtures and the advantages and disadvantages of a union. Then I went into the supposed advantages of a union, and the only one they have, really, is seniority. Then I went on to say, "If we were union, and if we had to lay off 20 percent of the people here, then I would have to, under seniority, lay off these people," and I turned the sheet over and I read off the names, going backward, of about a dozen people.... He also referred to the polygraph tests and to rumors re- specting the circumstances of the separation of those em- ployees who recently had left. More specifically, in his discussion of unionism Polsky listed things that a union could do and things a union could not do. He alluded to the possibility of bombings. He suggested that, if the employees did not know what was on the authorization cards they had signed, they should ask for their return. Ralph Moulder testified cre- dibly that Polsky flatly stated that if the Union came in he would have to layoff 20 percent of the employees and he then read the seniority list of the least senior people. Moulder testified he offered no reason why a layoff would be necessary. I find that the employees could reasonably understand that Polsky was threatening a layoff of 20 percent of the staff if a union came in. In not spelling out any nondiscri- minatory reason for such a layoff and considering the overall antiunion context of the speech, his statement could only be understood by the employees as a threat of layoff if they exercised their rights to select a union. This was coercion within the meaning of Section 8(a)(1) of the Act. FIXTURES MANUFACTURING CORPORATION 783 H. Discussion of the Issues of Discrimination This is a case in which if no cause were shown for the discharges findings of unlawful discrimination would be amply supported by the record. The circumstance of timing is very substantial evidence. Union animus is plain. Company knowledge of the organizing activity of Lindsey and Halterman is properly inferrable in the cir- cumstances. Respondent, however, had cause for the discharges, and in fact discharged others for the same asserted reason. It had been experiencing a serious theft problem for a year and had taken various steps to control the problem including special fencing, a guard service, and, beginning in February 1978, the administering of poly- graph tests to suspected employees and the mailing of strongly worded letters to the homes of all employees. The polygraph tests, which I find were honestly and professionally administered, seriously implicated Halter- man and Respondent had adequate grounds for his dis- charge. It is obvious that Halterman would have been discharged even if there had been no union activity. Where cause of this substance is shown, a finding of dis- crimination is not warranted even if the employer is looking for an excuse to rid itself of union supporters. Klate Holt Co., 161 NLRB 1606, 1612 (1966); Rosso and Mastracco, Inc., d/b/a Giant Open Air Market, 231 NLRB 945 (1977); Fikse Bros., Inc., 236 NLRB 1351 (1978). Accordingly, I find the discharge of Halterman was not a violation of Section 8(a)(3) of the Act. Lindsey was also implicated by the polygraph tests in that he appeared to have knowledge relating to the thefts which he was unwilling to divulge. This posed for him a dilemma of loyalty to his fellow employees on the one hand or to his employer on the other. In the matter of thefts his employer was entitled to his unconditional loy- alty and was entitled to terminate him for withholding it. The question is whether that was the reason Lindsey was terminated. I find it was not because there is no be- lievable explanation in the record for the delay in dis- charging him once Gearhart delivered his written report. Only after Polsky learned on March 2 that the union meeting was held the night before was action taken. Lindsey was fired the next day. Thus, although cause ex- isted for the discharge of Lindsey as with Halterman, in the case of Lindsey it does not appear to be a "but for" cause in view of the delay. See The Princeton Inn Compa- ny, d/b/a Princeton Inn, 174 NLRB 1193, 1198 (1969). Rather, the union activity appears to be the circumstance which triggered his termination. The Youngstown Osteo- pathic Hospital Association, 224 NLRB 574, 575 (1976). This was unlawful discrimination which necessarily dis- couraged membership in the Union. Accordingly, I find the discharge of Lindsey violated Section 8(a)(3) of the Act. IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The unfair labor practices of Respondent set forth in section 111, above, occurring in connection with the op- erations described in section 1, above, have a close and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor dis- putes burdening and obstructing commerce and the free flow of commerce. CONCI USIONS 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. Respondent interfered with, restrained, and coerced employees in the exercise of their rights guaranteed in Section 7 of the Act and committed unfair labor prac- tices within the meaning of Section 8(a)( ) of the Act by: (a) On March 3, 1978, interrogating employee William Lindsey about union activities. (b) On March 10, 1978, threatening the assembled em- ployees with a layoff of the dozen employees with the least seniority if the employees selected the Union to rep- resent them. 4. By discharging William Lindsey on March 3, 1978, and thereafter failing and refusing to reinstate him, Re- spondent discriminated against him in regard to his tenure of employment to discourage membership in the Union, thereby committing unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 5. These unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent engaged in unfair labor practices I recommend that it cease and desist therefrom and take certain affirmative action to effectuate the poli- cies of the Act. Respondent's unfair labor practices include a threat of layoff if employees select a union to represent them, which threat, if carried out, would also be an unfair labor practice. There is some risk, in view of Respond- ent's other unfair labor practices and its union animus, that it might make good on that threat. In order to pre- vent such further unfair labor practice and pursuant to Section 10(a) of the Act, the recommended Order will be broad enough to forestall the act as well as the threat. I further recommend that Respondent be ordered to offer William Lindsey immediate and full reinstatement to his former position or, if that position is not available, to a substantially equivalent position, without prejudice to his seniority or other benefits and privileges, and that he be made whole for any loss of earnings incurred as a result of being discharged on March 3, 1978, with back- pay to be computed in the manner prescribed in F W. Woolworth Company, 90 NLRB 289 (1950), and with in- terest as prescribed in Florida Steel Corporation, 231 NLRB 651 (1977).6 further recommend that Respond- ent be required to preserve and make available to Board agents, upon request, all pertinent records and data nec- essary in analyzing and determining whatever backpay may be due. h See. generally. Ii Plunmbing & Iauing Co. 118 NI RB 71h, (1t 62) 784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I also recommend that Respondent be required to post appropriate notices at its facilities in Kansas City, Mis- souri. Upon the foregoing findings of fact, conclusions of law, and the entire record in this case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER7 The Respondent, Fixtures Manufacturing Corporation, Kansas City, Missouri, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Dischargiug employees for engaging in union activ- ities. (b) Threatening employees with layoff, or laying them off, if they select a union to represent them. (c) Interrogating employees about union activities. (d) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist a labor organization, to bargain 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 as guaranteed in Section 7 of the Act, or to refrain from any or all such activities. 7 n he event no execeptions are filed as provided by Sec. 10246 Iof the Rules and Regulations of ihe National Labor Relations Hoard, the findings, conclusions, arid recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, he adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Offer to William Lindsey immediate and full rein- statement to his former position or, if that position is not available, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings in the manner set forth in the section entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other re- cords necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its premises in Kansas City, Missouri, copies of the attached notice marked "Appendix." 8 Copies of said notice, on forms provided by the Regional Director for Region 17, after being duly signed by Re- spondent's authorized representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 17, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. IT IS FURTHER ORD)ERED that allegations in the com- plaint of unfair labor practices not specifically found herein are hereby dismissed. 8 In the event that 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 National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."