Unga Painting Corp.

National Labor Relations Board - Board Decisions

May 11, 1977

229 N.L.R.B. 567 (N.L.R.B. 1977)

UNGA PAINTING CORP.
Unga Painting Corporation and International Brother-
hood of Painters and Allied Trades, Local 1791,
AFL-CIO, Henry Murata, James H. Miyamoto,
Leroy Rosa, Inoke Palepale, and John Badiali.
Cases 37-CA-1241, 37-CA-1243, 37-CA-1247,
37-CA-1252, 37-CA-1255, and 37-CA-1258
May 11, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On January 10, 1977, Administrative Law Judge
Bernard J. Seff issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief and the General Counsel filed
limited exceptions and refiled its posthearing brief in
opposition to Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision' in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,2 and conclusions of the Administrative Law
Judge to the extent consistent herewith and to adopt
his recommended Order, as modified.
1. The Administrative Law Judge found, and we
agree, that Respondent violated Section 8(a)(l) and
(3) of the Act by discharging Frank Silva on April 15,
1976; 3 Leroy Rosa on May 5, 1976; Inoke Palepale
on May 10, 1976; Henry Murata on May 19, 1976;
and John Badiali on May 19, 1976, for engaging in
union activities. We find merit in the General
Counsel's exceptions to the Administrative Law
Judge's apparent inadvertent error in failing to
include in his conclusions of law that Respondent
violated Section 8(a)(l) of the Act by interrogating
employees about their union activities on or about
April 7 and 13 and May 10, 1976, and that
Respondent violated Section 8(a)(1) by threatening
to terminate employees because of their union
activities on or about May 7, 1976. Such findings are
I We grant the General Counsel's motion that the Decision of the
Administrative Law Judge be corrected at III, A, par. I, to reflect that the
collective-bargaining agreement referred to was executed on June 26, 1975,
as indicated in G.C. Exh. 3, rather than on June 26, 1976.
2 The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dr, Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
Nor do we find merit in Respondent's contention that it was prejudiced by
the Administrative Law Judge's denial of its request to sequester the alleged
229 NLRB No. 93
amply supported by the Administrative Law Judge's
findings of fact.
2. In his findings of fact the Administrative Law
Judge found that "Respondent clearly refused to hire
Miyamoto because of his union membership, which
is a clear violation of Section 8(a)(3) of the Act."
Respondent excepted to this finding. The General
Counsel agreed with the finding and took a limited
exception to the Administrative Law Judge's appar-
ent inadvertent error to include this finding in his
conclusions of law, to the inclusion of James H.
Miyamoto in paragraph 2(a) of his recommended
Order, and to the omission from the recommended
Order of appropriate relief for Miyamoto.
Directing our attention to the merits of this alleged
8(a)(3) violation, we agree with the Administrative
Law Judge that Respondent violated Section 8(a)(3)
of the Act by refusing to hire James H. Miyamoto on
April 17, 1976. The landmark case of Phelps Dodge
Corporation v. N.LR.B., 313 U.S. 177 (1941), clearly
established that Section 8(a)(3) extends to applicants
for employment. Here, Respondent ran a newspaper
ad for a first class painter, which did not specify
nonunion help. Miyamoto, a painter for 35 years and
a union member, answered with a phone call, was
questioned by Respondent's secretary-treasurer
about his experience and union affiliation, and was
told, "We don't hire no union members." After being
rebuffed by a company officer and told that union
members are not hired, Miyamoto could hardly be
expected to further pursue employment possibilities
with Respondent by filling out an application or
requesting an interview. We note also that the record
is replete with union animus and that refusing to hire
union adherents was just one facet of Respondent's
pattern of discrimination.
THE REMEDY
Having found that Respondent violated Section
8(a)(1) of the Act by interrogating employees and
applicants about their union activities and by
threatening to terminate employees because of their
union activities, we shall order that Respondent
cease and desist therefrom.
discriminatees. It is long established that employees involved in discrimina-
tory discharges are entitled to remain in the hearing room. Jaques Power
Saw Company, 85 NLRB 440, 443 (1949). Similarly, Respondent's conten-
tion that the testimony of Frank Silva was improperly allowed is without
merit since Silva is a complainant in Case 37-CA-1241 herein. Id
3 We thus find merit in the General Counsel's exception to the
Administrative Law Judge's apparently inadvertent omission in his
recommended Order that Respondent offer Frank Silva immediate and full
reinstatement to his former job or, if that job no longer exists, to a
substantially equivalent position, without prejudice to his seniority or other
rights and privileges and make him whole for any earnings he lost, plus
interest, as a result of his discharge on April 15, 1976. Accordingly, the
recommended Order shall be modified.
567
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Having found that Respondent violated Section
8(a)(3) of the Act by refusing to hire James H.
Miyamoto, we shall require Respondent to offer
Miyamoto employment and make him whole for any
earnings he lost as a result of Respondent's refusal to
hire him on April 17, 1976.
AMENDED CONCLUSIONS OF LAW
Renumber paragraph 4 as paragraph 7 and insert
the following new paragraphs:
"4. By refusing to hire James H. Miyamoto on
April 17, 1976, because of his union membership,
Respondent violated Section 8(a)(3) of the Act.
"5. By interrogating employees and applicants
about their union activities on or about April 7 and
13 and May 10, 1976, Respondent violated Section
8(a)(l) of the Act.
"6. By threatening to terminate employees be-
cause of their union activities on or about May 7,
1976, Respondent violated Section 8(a)(1) of the
Act."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as
modified below and hereby orders that the Respon-
dent, Unga Painting Corporation, Laie, Hawaii, its
officers, agents, successors, and assigns, shall take the
action set forth in said recommended Order with the
following modifications:
1. Substitute the following for paragraphs l(a)
and (b):
"(a) Discharging employees for engaging in union
activities and refusing to hire because of union
membership.
"(b) Interrogating employees about their union
activity and threatening to discharge because of it."
2. Substitute the following for paragraphs 2(a)
and (b) and reletter the following paragraphs
accordingly:
"(a) Offer Henry Murata, Frank Silva, Leroy Rosa,
Inoke Palepale, and John Badiali 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 and make them whole for any earnings
they lost, plus interest, as a result of their discharges
on the dates indicated below.
"(b) Offer James H. Miyamoto immediate employ-
ment, and make him whole for any earnings he lost,
plus interest, as a result of Respondent's refusal to
hire him on April 17, 1976."
3. Substitute the attached notice for that of the
Administrative Law Judge.
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, having found
after a hearing that we violated Federal law by
discharging employees who engage in union activi-
ties, has ordered us to post this notice. We hereby
notify you that:
The National Labor Relations Act gives all
employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a repre-
sentative of their own choosing
To act together for collective bargaining
or other aid or protection
To refrain from any or all of these things.
WE WILL NOT discharge or threaten to dis-
charge you for engaging in union activities.
WE WILL NOT refuse to hire because of union
membership.
WE WILL NOT interrogate you about your union
activities.
WE WILL NOT interrogate applicants about their
union sympathies.
WE WILL NOT in any other manner interfere
with, restrain, or coerce you in the exercise of the
above rights.
WE WILL offer Frank Silva, Leroy Rosa, Inoke
Palepale, Henry Murata, and John Badiali imme-
diate 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, and we
will make them whole for any earnings they lost,
plus interest, as a result of their discharges.
WE WILL offer James H. Miyamoto immediate
employment, and WE WILL make him whole for
any earnings he lost, plus interest, as a result of
our refusal to hire him.
UNGA PAINTING
CORPORATION
568
UNGA PAINTING CORP.
DECISION
STATEMENT OF THE CASE
BERNARD J. SEFF, Administrative Law Judge: This case
came on for hearing on November 9 and 11, 1976, in
Honolulu, Hawaii. The cases were consolidated and the
complaint issued by the Regional Director for Region 20
on June 18, 1976, based on the following: The charge in
Case 37-CA-1241 was filed by the Union on April 7, 1976;
the charge in Case 37-CA-1243 was filed by Henry Murata
on April 15, 1976: the charge in Case 37-CA 1247 was
filed by James Miyamoto on May 3; the charge in Case 37
CA-1252 was filed by Leroy Rosa on May 6; the charge in
Case 37-CA-1255 was filed by Inoke Palepale on May I I;
the charge in Case 37-CA-1258 was filed by John Badiali
on May 25. All of the above named were discharged by
Unga Painting Corporation, hereinafter known as the
Respondent. Respondent admits and I find that it is at all
times material herein an employer as defined in Section
2(2) of the Act engaged in commerce and operations
affecting commerce as defined in Section 2(6) and (7) of
the Act. Respondent admits jurisdictional information and
the fact that the Union is a labor organization within the
meaning of the Act but denies the commission of any
unfair labor practices.
Briefs were filed by the General Counsel and by the
Respondent which have been carefully considered.
Upon the entire record in the case and from my
observation of the demeanor of the witnesses, I make the
following:
FINDINGS OF FACT
I. JURISDICTION
Respondent is a corporation of Hawaii with offices in
Honolulu, Hawaii, and is engaged as a painting contractor
in the building and construction industry. During the past
calendar year Respondent furnished services valued in
excess of $50,000 for agencies of the United States
Department of Defense and for the Hawaiian National
Guard. Respondent admits and I find that it is engaged in
interstate commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is, and at all times material herein has been, a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Willis Unga has been the president of Respondent and
an agent of Respondent acting in its behalf within the
meaning of Section 2(13) of the Act, and a supervisor of
Respondent within the meaning of Section 2(11) of the Act.
Similarly, Lola Unga has been an agent of Respondent
acting on its behalf within the meaning of Section 2(13) of
the Act. On June 26, 1976, Unga executed a collective-
bargaining agreement with the Union, effective from July
1, 1975, through December 31, 1977. Respondent complied
with that agreement for a period of time and then on
November 19, 1975, repudiated it. Before he repudiated
that contract Unga told each of the men that:
I am going to withdraw from the Union, and I advise
them that if they liked to stay with the company, they
are welcome to stay; if they liked to go with the Union,
they may do so.
Subsequent to the repudiation of the contract, the Union
filed suit in the state court for enforcement of the contract,
and for other relief. As a result of this litigation Unga
considered the Union to be his enemy and so informed
Murata, Frank Silva, and Badiali at various times. It is
clear from the record that Unga bore great animosity
towards the Union.
B. The Refusal To Hire James Miyamoto
Miyamoto saw an advertisement in the Honolulu
newspaper in April 1976 advertising for a first-class painter
for Unga Painting Corporation. On or about April 17 he
called Respondent and spoke to a woman who identified
herself as Lola. She asked him how many years' experience
he had and then asked him if he was a member of the
Union. When he replied in the affirmative she told him,
"We don't hire no union members" and that was the end of
the conversation. Miyamoto never did go to work for
Respondent. Lola Unga is secretary-treasurer of Respon-
dent and is admitted to be an agent of Respondent. The
General Counsel points out that her general and vague
denial of this conversation cannot be credited in the face of
Miyamoto's specific testimony. Lola Unga testified that
she had many conversations with job applicants. She
admitted that she did not remember what she told each
caller and that she specifically did not remember her
conversation with Miyamoto. She testified only as to her
general practice of informing callers that Respondent was
nonunion and taking names and numbers to have her
husband return calls. She did admit that she knew that her
husband, Respondent's president, was not hiring union
men because he was out of the Union. Her testimony
indicates that based on her own knowledge of Respon-
dent's position it is likely that she would inform callers that
Respondent was not hiring union men. By contrast with
Miyamoto's clear and forthright testimony it appears
certain that she did in fact tell him that Respondent was
not hiring union men. I credit Miyamoto.
C. The Interrogation and Discharge of Frank Silva
After initially refusing to hire Silva and subsequently
interrogating him about his contacts with the Union, Unga
finally terminated Silva because of his demands that he be
paid according to the union contract. Before he applied for
a job at Respondent and as a painter, Silva contacted the
Union to get a work clearance. He was informed by the
Union that Respondent was still "a member of the Union,"
and that there was litigation in progress but Respondent
was still in the Union. He was cleared for work there. Silva
understood that the Union considered Respondent to still
569
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be a "member" of the Union or covered by the collective-
bargaining agreement referred to supra.
Silva testified, and Unga admitted, that on or about
April 7, 1976, when Silva was applying for a job, the
Respondent asked him if he was a union member. Unga
testified that it was his policy to ask job applicants if they
belonged to the Union.
Initially Unga refused to hire Silva because of his union
membership, but the record shows that Silva did start work
for Unga a day or two after he was interviewed. On April 7,
the Union filed a charge on Silva's behalf alleging that
Respondent had refused to hire him in violation of Section
8(a)(3). About a week later, on or about April 13, Unga
called Silva at his home to ask if he was going to report to
work the next day. During the course of this conversation,
Unga asked if Silva had said anything to the Union when
he had come down to apply for a job. When Silva replied in
the affirmative that he had gotten a work clearance from
the Union, Unga asked him if he had said anything else.
Silva replied, "No. Why?" And Unga said, "I just hope that
you are not a spy for the Union." Silva testified that Unga's
conversations with him regarding his union activities
finally culminated in a conversation on April 14 in which
Unga told Silva that he was laid off. When Silva applied at
Respondent he indicated on his application form under
wage rate, "union scale." When he spoke to Unga on April
14, Silva asked if he would be paid time and a half for the
following day which happened to be a holiday, Good
Friday. Unga stated that he did not pay time and a half.
Silva responded that it was his understanding that he was
to be paid union scale. Unga then stated that: "I don't
belong to the Union. I told you that before, the Union is
our enemy and I don't have to pay these fringe benefits
that you say I have." Silva then asked to be paid showup
time and travel time for 3 or 4 days when the men had been
rained out. He stated that under union regulations he was
entitled to showup and travel time pay and that as a union
member he was entitled to that pay. Unga reiterated that
he is not a member of the Union and that the Union was
his enemy. He told Silva that he was nonunion and if Silva
worked for him he would have to work according to his
rules and not the union rules. Unga finally told Silva, "If
you cannot follow my regulations I cannot have you in my
company." Silva asked if he was laid off and Unga replied,
"If you can't follow my regulations you are laid off." It is
clear Unga laid off Silva because of his association, in
Unga's mind, with the Union and because Silva asked that
he be paid the union rates under the contract which Unga
had repudiated.
At this point it is appropriate to make some observations
about the credibility of Unga. Unga's testimony with
regard to the layoff of Silva demonstrates that he was
evasive, contradictory, and not altogether trustworthy.
These characterizations of his testimony applied through-
out the hearing. For example, when first questioned with
regard to Silva's layoff Unga responded, "I really didn't tell
him to go. It was his decision that he don't want to work if
I don't pay him the union wages." Unga then acknowl-
edged that in a sworn affidavit given to an agent of the
Board he admitted that "On April 15, 1976, 1 laid off Silva
because he came to me and told me I had to pay union
rates and follow union rules." Later in his testimony Unga
confirmed the substance of that conversation with Silva.
Unga then admits, "I may say I lay him off' and finally
admits telling Silva, "if you cannot follow my regulations,
you are laid off." Such contradictory statements appear
throughout Unga's testimony. He did not make a good
impression on me by his demeanor while testifying and I
therefore do not credit his testimony. On the other hand
Silva appeared entirely trustworthy in what he was saying
and appeared to be telling the truth. I credit Silva's
testimony.
D. The Discharge of Leroy Rosa
Rosa was hired by Respondent as a painter on or about
April 22, 1976. Unga knew Rosa was a union member. On
or about May 5 Rosa received his first paycheck. The wage
rate reflected on that check was less than the union rate
and Rosa began arguing with Unga regarding the wage
rate and told him that he was entitled to union scale and
the fringe benefits under the union agreement. The
conversation ended when Rosa told Unga that he had
gotten John Badiali and Inoke Palepale, two other
employees, to join the Union. Whereupon Unga immedi-
ately left, spoke to Palepale, and then returned to Rosa to
tell him that he was laid off. As Rosa was leaving, he
testified he heard Unga tell Palepale that if he didn't quit
the Union they would be terminated.
E. The Interrogation and Threat To Terminate
Palepale and Badiali
Murata, Rosa, Badiali, and Palepale all testified as to
what occurred in a conversation with Unga on or about
May 5 or 7 at the Respondent's shop. The conversation
started with Rosa arguing about his wage rate and then
telling Unga that he had Badiali and Palepale join the
Union as described above. Unga admits this was the first
time he learned that Palepale and Badiali had joined the
Union. When Rosa told him this, Unga turned and spoke
in Tongan to Palepale. Unga asked Palepale if he had in
fact applied to the Union and Palepale told him yes. He
then told Palepale:
He told me to go to the Union and tell them to cross off
my application. Should I do that, I would come back
and resume my job; or otherwise he will terminate my
job.
Unga then approached Badiali and asked him if he had
applied to the Union. When Badiali responded in the
affirmative Unga told him:
Well, you will have to go down tomorrow and find out
if the Union can give you a job. Resolve your union
intentions or else you don't have a job here . . . I
cannot use union men here.
Murata confirmed that he heard Unga tell Badiali and
Palepale that they should get out of the Union because if
they didn't he would terminate them. Rosa also confirms
that he heard Unga tell Badiali that if they didn't quit the
Union they would be fired.
570
UNGA PAINTING CORP.
F. The Further Interrogation and Discharge of
Inoke Palepale
Palepale next spoke to Unga about the Union the
following Tuesday, May 11. Unga questioned Palepale to
find out if he had gone to the Union. Palepale made a
noncommittal response and Unga told him to go and wait
to be called back to work. He stated that he did not want
Palepale to work with Murata and Badiali. Palepale
returned that Friday, May 14, to collect his paycheck. At
that time Unga was told Murata had said he had gone to
the Union and the Labor Board. Palepale denied this and
Unga then told them to go home and wait until the job they
were working on was completed. Unga said that he would
then fire the two men who were working and call Palepale
to come back to work and that he didn't like union men.
Palepale was never called back to work at Respondent's
place of business and was not told that he was being laid
off for lack of work. In fact, Palepale knew that the job that
he had worked on May 10 was not completed and that
there was more work to be done on that job.
Unga's records show that the week ending May 15 two
new employees, Chul Soo Yoo and Hasin Sakim, started
working for Respondent as painters. These two painters
were still employed by Respondent as of the date of the
hearing in the instant case. In addition to those two
employees, Unga hired two other painters, Johnson and
Morrissey, on a temporary basis during the week ending
May 15. He had also hired two painters, Golenberg and
Cruz, the week ending April 24. Unga had started a job at
the Iroquois Elementary School in Ewa in early May 1976.
That job continued into July 1976. These instances are
cited as examples of the fact that even from Respondent's
own records there was ample work available for Palepale
after May 10. Unga admitted in a sworn statement to a
Board agent that he was going to fire Palepale because he
had gone to the Union. It is clear that Palepale was in fact
terminated in accordance with Unga's statement to the
Board agent, because he went to the Union.
G. Additional 8(a)(1) as it Relates to the Discharge
of Badiali
Badiali reported to work on or about May 10 at which
time he was asked by Unga if he had dissolved his union
membership. An argument then took place between Badiali
and Unga in the course of which Unga told him to just go
to work. About a week later Murata informed Badiali that
he had been terminated. He phoned Unga to find out why
he had been terminated. Unga told Badiali: "I have got to
fire the union men . . . the Union is my enemy . . . I
would have liked to have kept you there but my lawyer
advised me to throw out the union men."
H. The Termination and Interrogation of Henry
Murata
Murata was hired by Respondent in March 1975. He was
employed as a working foreman. He was discharged on
May 18, 1976. In April 1976, Unga and Murata had a
difference of opinion as to what employees should tell a
Federal Inspector investigating wage rates paid to employ-
ees by Respondent on a Federal project. As a result of that
dispute Murata did not report to work one day in April
1976. Unga called Murata at his home to discuss the matter
and during their conversation Unga learned that Murata
had gone to the Union. He admitted asking Murata what
had happened when he went to the Union. Murata told
him he could not find a job through the Union and Unga
told him he was welcome to come back and "work as long
as you like." Murata then returned to work.
Unga told Murata that his attorney had advised him to
get rid of all union men. This conversation took place on
May 18 pursuant to this alleged advice from his attorney
and Unga told Badiali that he had to get rid of all union
men. It is to be noted that this was the same thing that
Unga had told Badiali at the same time. Murata was then
terminated and has not worked for Respondent since that
date.
I. Violations of Section 8(a)(1)
The General Counsel contends in her brief that the
record evidence shows classic and extensive violations of
Section 8(aX)() of the Act. Unga made it a practice to ask
employees and prospective employees about their member-
ship in, and their contacts with, the Union. On or about
April 7, 1976, Unga asked employee Silva, when Silva was
applying for a job, if he belonged to the Union. About a
week later on April 13, 1976, in a telephone conversation
Unga asked Silva if he said anything to the Union when he
had applied for the job. When Silva replied in the
affirmative Unga interrogated him further as to what he
said when he contacted the Union. I find this interrogation
violative of Section 8(aX I).
On or about May 7, 1976, Unga learned from Rosa that
employees Badiali and Palepale had joined the Union. At
this point Unga immediately went to Palepale and asked
him if he had joined the Union. When Palepale told him
that he had, Unga told Palepale that if he went to the
Union and "crossed off" his application, he could come
back and resume his job, otherwise he would be terminat-
ed. Unga then interrogated Badiali further and asked him
if he had joined the Union. When Badiali told him he had,
Unga told him that he couldn't use union men, and that
Badiali should get out of the Union or else he didn't have a
job with Respondent.
Unga testified that he did not tell Palepale and Badiali
that if they did not withdraw from the Union they could
not work for Respondent. However, he admitted telling all
his employees at the time he repudiated the contract, that
they could go with the Union or stay with him. In the
deposition attached to Respondent's answer (G.C. Exh.
I(o)), Unga testified that at the time he repudiated the
contract he told his men:
Fellows, I am not in the Union anymore for the next
week. So I want to let you know I still want to keep you
that we - if you like to stay with me, stay with me. It's
your choice. If you want to go with the Union, you can
do so. I'll miss you guys.
From this testimony and other of like nature with which
the record is replete, it can be clearly seen that Unga set up
571
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an either/or choice for his employees. He was still
following this policy in the spring of 1976 when he told
Henry Murata:
I told him, Henry, I cannot use you if you still belong to
the Union ... if you still belong to the Union I cannot
use you. I told him, Henry, I still can keep you if you
are not Union. If you belong to the Union, you can go
back to the Union and get a job from them. I don't
mean to have you withdraw from the Union. So he
decided to just come back for the Union, he can get
jobs. Then I say, O.K., you can go if you like to. I tell
Henry, all my good men, they belong from the Union.
They are welcome to come back for the Company if
they are not union ....
The record evidence makes it clear that Unga informed
his employees on numerous occasions that they could work
for him or belong to the Union. It would therefore appear
reasonable to conclude that he told Badiali and Palepale
the same thing when he learned they had joined the Union.
The evasive and contradictory testimony of Unga cannot
be credited over the clear and direct testimony of the four
employees who witnessed this conversation. Unga directly
told Badiali and Palepale that unless they withdrew from
the Union they could not continue to work for Respon-
dent. Unga further admitted telling Murata the same thing
during the spring of 1976. The General Counsel concludes
that these threats, to terminate employees unless they
withdrew from the Union, constitute clear violations of
Section 8(a)(1) of the Act. I agree.
Unga followed up on this threat by questioning Badiali
and Palepale the following week as to whether they had
gone to the Union. Unga further asked Palepale if he had
gone to the Labor Board. This extensive questioning of
employees about their union membership and their contact
and communication with the Union constitutes interroga-
tion of employees in violation of Section 8(a)(1) of the Act.
I so find. The General Counsel also points out that it is a
violation of Section 8(a)(1) of the Act to accuse an
employee of being a spy for the Union, as Unga accused
Silva.
In attempting to evaluate the motivation for the
extensive interrogation of employees, the question comes
up as to whether Unga is concerned that union employees
might be fined for working for a nonunion employer. In
view of Unga's conviction that the Union was his enemy,
which has been stated many times during the course of the
hearing, and his concern that employees might be spies for
the Union, it is highly doubtful that he had employees'
interests in mind when he engaged in the above interroga-
tion. However, it is unnecessary to make a determination
as to his motives. The law is clear that the finding of a
violation does not rest on a subjective state of mind of the
employer or the employee but on the coercive character of
the actual statements made.
J. Respondent's Refusal To Hire Miyamoto
The Act makes it unlawful to refuse to hire an employee
because of that employee's membership in a union. This
too constitutes a violation of Section 8(a)(3) and I so find.
Lola Unga, secretary-treasurer of Respondent, told Mi-
yamoto that Respondent did not hire union members. She
was well aware that this was her husband's policy. Unga
himself told another employee, Silva, that he could not hire
union men, and on many occasions informed other
employees that he could not use union men. Respondent
clearly refused to hire Miyamoto because of his union
membership, which is a clear violation of Section 8(aX3) of
the Act. I so find.
K. Frank Silva's Termination
At the time Silva initially was interviewed for a job, he
was questioned by Unga who learned from this interroga-
tion that he was a member of the Union. At that point
Unga refused to hire Silva. A few days later he had a
change of heart and Silva began to work for Respondent as
a painter. In subsequent questioning, on or about April 13,
Unga learned that Silva had contacted the Union about
Unga's refusal to hire him. At that point Unga said that he
hoped Silva was not a spy for the Union. The next day,
April 14, Silva asked Unga if he would be paid time and a
half for the upcoming holiday. When Unga replied that he
did not pay time and a half, Silva said that it was his
understanding that he was to be paid union scale. Silva
then further insisted that under union regulations he was
entitled to showup time and travel time for several days
when work had been rained out. Unga told Silva that he
was nonunion and that if Silva worked for him he would
have to work according to his rules and not the union rules.
Unga finally told Silva that if he could not follow these
regulations, he was laid off. Unga candidly admitted to a
Board agent that, "On April 15, or thereabouts, I laid off
Silva because he came to me and told me I had to pay
union rates and follow union rules." By this time Respon-
dent had repudiated its contract with the Union. Silva
knew that there was a dispute between Unga and the
Union as to Respondent's union status and that the matter
was then in litigation. Silva came to work for Respondent
with Respondent's knowledge that he was a union member
and Silva's understanding that he was to be paid union
scale according to the contract. In his final conversations,
Silva insisted that he be paid according to the contract.
Such activity has been held to be protected concerted
activity and it is a violation of Section 8(aX I) of the Act to
terminate an employee for engaging in such activity. The
General Counsel cites as her authority for the above
proposition Interboro Contractors, Inc., 157 NLRB 1295
(1966); New York Trap Rock Corporation, Nytralete
Aggregate Division, 148 NLRB 374 (1964); Merlyn Bunney
and Clarence Bunney, partners, d/b/a Bunney Bros. Con-
struction Company, 139 NLRB 1516 (1962).
It appears that Silva was also terminated because of his
contact with the Union in violation of Section 8(a)(3) of the
Act. Unga had knowledge that Silva was a union member.
He learned the day before Silva's termination that Silva
had been in contact with the Union regarding working for
Respondent and accused Silva of being a spy for the
Union. When Silva then insisted on his rights under the
contract, Unga apparently viewed Silva as siding with his
enemy, the Union, and fired him. Unga's statements to
Silva parallel other statements to other employees to the
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UNGA PAINTING CORP.
effect that they can belong to the Union and have the
Union find them jobs or they could work for him. At the
point where Silva revealed himself to be a strong union
supporter, Unga no longer had employment for him.
Respondent's pattern of discrimination against union
employees is borne out by the frequently mentioned fact
that Unga considered the Union his enemy. He further
repeatedly stated that he could not have union men
working for him. He terminated Silva, Rosa, Palepale,
Badiali, and Murata because of their membership in or
activities on behalf of the Union. As a consequence of his
deeply held view that the Union was his enemy, Silva was
clearly caught up in the same pattern and was discharged
for his support of the Union in violation of Section 8(a)(3)
of the Act. I so find.
L. The Termination of Leroy Rosa
Rosa was another victim of Respondent's determination
to eliminate from his work force people who were not only
members of the Union but continued to remain members
despite numerous statements by this Respondent that he
would not tolerate union members who retained their
membership and followed union regulations instead of
agreeing to work according to Unga's requirements. Rosa
started work with Respondent with Unga's knowledge that
he was a union member. About a week after he was hired,
Rosa and Unga had a dispute over Rosa's rate of pay.
During that discussion, Rosa announced that he had "a
surprise" for Unga, that he had gotten Badiali and Palepale
to join the Union. Unga immediately asked Badiali and
Palepale if they had, in fact, joined the Union, and upon
learning that this statement was true, turned and told Rosa
that he was laid off.
Unga admitted that he had fired Rosa but stated that his
reasons were:
Came drunk on the job and he argued me for his wages.
Then he ended by bringing up something that he was
hiding. He says, do you know what I did for your
company? I said what? I gave you two men in the
Union. I said so what.
Unga admitted that he had the above-described conver-
sation with Rosa and it was at this time that he first learned
that Badiali and Palepale had joined the Union. In his
sworn affidavit given to an agent of the Board, Unga stated
that Rosa was a spy for the Union and was stirring his men
up. While Unga takes the position that Rosa was drunk,
Rosa denied that he came to work drunk. It appears that
this alleged drunkenness was an afterthought on the part of
Unga and was not the reason why he terminated Rosa. It is
apparent from Unga's own testimony that he fired Rosa
because Rosa asked for the union wage scale and for fringe
benefits as provided in the contract, and because Rosa had
helped Badiali and Palepale to join the Union. The timing
of Rosa's termination, immediately after Unga learned that
he had helped Badiali and Palepale join the Union, taken
together with Unga's own admission, show that Rosa was
terminated because of his union activities, in clear violation
of Section 8(a)(3) of the Act. I so find.
M. The Discharge of Inoke Palepale, John Badiali,
and Henry Murata
Palepale, Badiali, and Murata were all terminated
because of their union membership and activities. Unga
first learned, on or about May 7, from Leroy Rosa that
Palepale and Badiali had joined the Union. As discussed
supra, he questioned each of them, told them they could
either be in the Union or could work for him and then later
questioned them further as to whether they had resigned
from the Union. After learning that Palepale had not
withdrawn from the Union, Unga told him to go home and
wait to be called back to work. When Palepale returned on
May 14 to collect his paycheck, Unga said that he should
go home and wait because he was going to fire two men
when the current job was completed. He also told Palepale
that he did not like union men and did not want Palepale
to work with Badiali and Murata. Palepale was never
called back to work for Respondent.
The record makes it clear that Palepale was terminated
because he joined the Union. Unga admitted in his
affidavit, given to an agent of the Board, that he was going
to fire Palepale because he had gone to the Union.
Palepale's timecard for that week indicated that he had
been fired. The final proof of the unlawful motivation is the
complete pretextual nature of the reason advanced at the
hearing for that determination. During the hearing Unga
testified that Palepale had been laid off for lack of work.
He testified:
If we go back to the records, the particular day that he
was laid off according to the amount of jobs that I had,
it was correct. I laid him off because of lack of work. I
don't have enough jobs for the men.
The record evidence shows that Unga started a new job,
the Ewa School job, in early May and that the said job was
still in progress in July 1976. Through the week ending
April 14, 2 weeks before he fired Palepale, Unga hired two
new painters, Golenberg and Cruz. The week ending May
15, the week Palepale was fired, Unga hired two temporary
painters, Johnson and Morrissey, and had two permanent
full-time painters start work; Chul Soo Yoo and Hasin
Sakim.
This hiring pattern not only shows that Unga had
enough work so that he didn't have to lay off Palepale, it
also shows his intent to terminate Badiali and Murata.
Unga told Palepale that he was going to fire two men and
that he didn't like union men. That same week he hired
several new painters. The next week, on May 19, Unga
terminated Badiali and Murata. Less than 2 weeks after he
learned Badiali had joined the Union, Unga told Badiali
that he had to terminate his union men, that the Union was
his enemy and that he was advised to throw out the Union
by his attorney. Badiali was then terminated. At the same
time, Unga told Murata that he had to terminate him, that
he had to get rid of all union men because his attorney had
so advised him. Murata was then also terminated. It is clear
that the new painters were hired as replacements for
Palepale, Badiali, and Murata who were terminated
because of their union membership and activities. Palepale
and Badiali were terminated shortly after Unga learned
573
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they had joined the Union. Palepale had worked for
Respondent since November 1975 and Badiali had been
employed since January 1976. Murata had worked for
Respondent since March 1975. The General Counsel
argues that these three employees constituted an experi-
enced, capable workcrew. They were laid off while
employees who had worked for Respondent less than a
week were kept on. It is clear from the record that Palepale,
Badiali, and Murata were not laid off because of lack of
work as Unga testified, but were laid off because they
belonged to the Union. This in particular is clearly
demonstrated with regard to Murata. Unga testified that he
laid off Murata for lack of work but that was not the
"only" reason. In his sworn deposition, incorporated into
Respondent's answer, Unga admitted the real reason for
Murata's termination. He admitted that, after Murata
returned to work in April 1976, he discovered that Murata
was still a member of the Union and that he then
terminated him.
From the evidence in the record and from Unga's own
deposition, it is clear beyond doubt that Murata was
terminated because of his membership in the Union.
Unga's own admissions and conflicting testimony, the
clear and direct testimony of the employee witnesses, and
the incredible nature of the contention that these employ-
ees were laid off for lack of work show that Palepale,
Badiali, Murata, Silva, and Rosa were in fact terminated
because of their union membership and activities in
violation of Section 8(a)(3) of the Act. I so find.
Threaded throughout the record there are repeated
statements by the witnesses and admissions by Unga that
he had to get rid of all union members because the Union
was his enemy. Respondent's union animus is overwhelm-
ingly demonstrated in this record. I so find.
Upon the foregoing findings of fact, upon the entire
record in this proceeding, I make the following:
CONCLUSIONS OF LAW
1. Unga Painting Corporation is an employer engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.
2. International Brotherhood of Painters and Allied
Trades, Local 1791, AFL-CIO, is the labor organization
within the meaning of Section 2(5) of the Act.
3. By discharging Frank Silva on April 15, 1976; Leroy
Rosa on May 5, 1976; and Inoke Palepale on May 10,
1976; Henry Murata on May 19, 1976; and John Badiali
on May 19, 1976, for engaging in union activities,
Respondent thereby violated Section 8(a)(3) and (1) of the
Act. I so find.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
I In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
THE REMEDY
In order to effectuate the policies of the Act, it is
necessary that Respondent be ordered to cease and desist
from the unfair labor practices found. I will therefore
recommend Respondent reinstate all of the above employ-
ees and make them whole for any earnings they may have
lost as a result of their discharge on the dates indicated
above, by the payment of backpay computed on a
quarterly basis, plus interest of 6 percent per annum, as
prescribed in F. W. Woolworth Company, 90 NLRB 289
(1950), and Isis Plumbing & Heating Co., 138 NLRB 716
(1962).
Upon the basis of the foregoing findings of fact,
conclusions of law, and the entire record in this proceed-
ing, and pursuant to Section 10(c) of the National Labor
Relations Act, I hereby issue the following recommended:
ORDER 1
The Respondent, Unga Painting Corporation, Laie,
Hawaii, its officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Discharging employees for engaging in union activi-
ties.
(b) Interrogating employees about their union activities.
(c) In any other manner interfering with, restraining, or
coercing employees in their exercise of rights guaranteed in
Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer Henry Murata, James H. Miyamoto, Leroy
Rosa, Inoke Palepale, and John Badiali immediate and full
reinstatement to their former jobs or, if those jobs no
longer exist, to substantial equivalent positions, without
prejudice to their seniority or other rights and privileges,
and make them whole for any earnings they lost, plus
interest, as a result of their discharge on the dates indicated
above.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, 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 recommended Order.
(c) Post copies of the attached notice marked "Appen-
dix." 2 Copies of said notice, on forms provided by the
Regional Director for Region 20, after being duly signed by
Respondent's authorized representative, shall be posted by
Respondent 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 ensure that said notices are not
altered, defaced, or covered by any other material.
2 In the event that the Board's Order is enforced by a Judgment of the
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
574
UNGA PAINTING CORP. 575
(d) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.