Machinery Distribution Co.

756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Machinery Distribution Company and Gaylord W. Slaysor, Garland L. Morgan, Lonnie Phipps, and Thomas L. Russell. Cases 21-CA-12052-1, 21-CA-12052-2, 21-CA-12052-3, and 21- CA-12052-4 June 19, 1974 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On February 5, 1974, Administrative Law Judge Richard D. Taplitz issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief. 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 brief and has decided to affirm the rulings , findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. 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 and hereby orders that the Respondent, Machinery Distribution Company, Baldwin Park, California, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. DECISION STATEMENT OF THE CASE RICHARD D . TAPLITZ, Administrative Law Judge: This case was tried at Los Angeles, California, on December 20, 1973.1 The complaint, which issued on October 19, was based on charges filed by Gaylord W. Slaysor, Garland L. Morgan, Lonnie Phipps and Thomas L. Russell on August 22. The complaint alleges that Machinery Distribution Company, herein called Respondent, violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended. Issues The primary issues are: I All dates are in 1973 , unless otherwise specified. Y The business was first begun in 1968 when a group of individuals, including Ray G. O'Marah , the president of Respondent, formed a company under the name of Machinery Distribution Company. O'Marah was vice president and treasurer of that company . The original company had financial difficulties and its name and part of its business was taken (1) Whether Respondent violated Section 8(aX3) and (1) of the Act by laying off Slaysor, Morgan, Phipps, and Russell on August 10 because those employees engaged in activities on behalf of International Union of Operating Engineers, Local Union No. 12, AFL-CIO, herein called the Union, and because its employees voted to have the Union represent them. (2) Whether Respondent violated Section 8(a)(1) of the Act by promising employees benefits if they abandoned the Union and by interrogating employees about Union activities. All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-examine witnesses, to argue orally, and to file briefs. A brief, which has been carefully considered, was filed on behalf of the General Counsel. Upon the entire record of the case, and from my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent, a California corporation engaged in the sale and servicing of heavy construction equipment, has its principal place of business at 1155 Baldwin Park Boule- vard, Baldwin Park, California. Respondent annually purchases and receives goods valued in excess of $50,000 directly from suppliers located outside of California. The complaint alleges, the answer admits , and I find that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer as amended admits, and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Events 1. The setting Respondent has been in the business of selling and servicing heavy construction equipment since July 26, 1971.2 Respondent has four departments: a service department with approximately 14 employees; a parts department with approximately 6; a sales department with approximately 7; and an office with about 4. The service department works on repairs, maintenance, and warranty work for much of the equipment that Respondent sells. On August 3, 1973, a Board-conducted election was held among the service department employees .3 The employees voted 11 to 0 in favor of representation by the Union, and on August 13, 1973, a Board certification issued. over by Respondent. Respondent continued the employment of all of the original company's employees with no break in service. 3 The bargaining unit was "all leadmen, mechanics , mechanics appren- tices, and mechanics helpers employed by the Employer at its facility located at 1155 Baldwin Park Boulevard, Baldwin Park, California, excluding all other employees, outside salesmen , office clerical employees, 211 NLRB No. 126 MACHINERY DISTRIBUTION CO. On August 10, 1973, 7 days after the election, Respon- dent laid off Slaysor, Morgan, Phipps, and Russell, all of whom were employees in the service department. The General Counsel contends that the layoffs were causally connected to the union activity while Respondent contends that they were solely motivated by legitimate, economic considerations. 2. The union activity, the layoffs and the alleged violations of Section 8(a)(1) Thomas L. Russell is a heavy equipment repairman. He was employed by Respondent's predecessor from Novem- ber 11, 1968, through June 1971, at which time he quit. He was rehired by Respondent on August 23, 1971, and remained until August 10, 1973, when he was laid off. At the time of the layoff, there were nine mechanics of whom seven were senior to him and one less senior .4 In February 1973, Russell called Frank Todd, a representative of the Union, and asked about unionization. Todd told him to set up a meeting for the Union to speak to the employees. Russell then contacted Garland Morgan, a fellow employee, and asked him to help organize. Morgan agreed. Russell and Morgan arranged to have the meeting at the union headquarters on May 6, 1973. In addition to a number of union representatives, eight mechanics from Respondent attended. A second meeting took place at the union office on May 20, at which time employees signed union authorization cards. Between the two meetings, both Russell and Morgan spoke to employ- ees about the Union on Respondent's premises during lunch hour and after work. Morgan was a welder and mechanic. He was employed from December 16, 1968, to July 1972 when he left because of an injury. He was reemployed from October 1972 until August 10, 1973, when he was laid off. Respondent's records show five employees who were hired before Morgan's December 16, 1968, seniority date. Lonnie Phipps is a mechanic who was employed by Respondent from July 16, 1968, until he was laid off on August 10, 1973. There were four employees hired prior to his seniority date. Phipps talked in favor of the Union to other employees in the shop on many occasions. The fourth employee who was laid off on August 10, 1973, was Gaylord Slaysor. He had been hired as a mechanic trainee on May 21, 1973, and was the least senior employee in the department. He did not take the stand during the trial and there is no evidence in the record (other than the fact that all the employees voted for the Union) that he engaged in union activity. Respondent knew that Russell, Morgan and Phipps were active on behalf of the Union. Stanley H. Roberts, Respondent's service manager,5 acknowledged on the stand that Russell told him on August 3, 1973, in the evening after the election, that Russell and Morgan had excluding all other employees , outside salesmen, office clerical employees, professional employees, guards and supervisors as defined in the Act." 4 G. C. Exh. 5 shows Respondent's employee complement and the dates of hire . There are nine typed names on the list and in addition three handwritten names. These three names include Gaylord Slaysor, who was a mechanic trainee . Based on Russell's testimony that there were nine mechanics, it appears likely that the three handwritten names, all of whom 757 been active in getting the Union in the shop. Roberts also acknowledged that he had heard about Russell and Morgan's union activities around the shop even before August 3, 1973. Phipps had talked in favor of the Union very openly in the shop. While doing so on August 3, 1973, before the election, Roberts was standing 8 or 10 feet away and was in a position to hear him. In addition, Roberts knew of Phipps' union sympathies from a conversation he had with him on May 15 or 16, 1973. At that time, Phipps and Roberts were driving together in a truck. Roberts said: "I hear you guys are going union." Phipps replied: "Yes, we are going union." Roberts asked "why" and Phipps replied that the Union would not only help the employees but would help the Company because it would be allowed to work on union jobs. Roberts then said that if the Union came in, there would be some changes made. Roberts also said: "if the Union don't come in, why you guys will get your trucks back." At the time Phipps began working for Respondent, he was allowed to keep a company truck in his possession 24 hours a day. Other employees had the same privilege. In April 1973, the situation changed and the employees were told that they had to return the trucks to the company yard every evening unless the employee had to leave early in the morning and go directly to a job or other situations existed where there was special justification for the employee taking the truck home. At the time of this conversation, the employees still had only limited use of the trucks .6 Morgan, Russell, Phipps, and Slaysor were all laid off on August 10 without prior notice. Neither Respondent nor its predecessor had ever laid off any employees in the past. Morgan was offered his job back on October 4, 1973. Russell, Slaysor, and Phipps were offered their jobs back on October 26, 1973, to report to work on November 5, 1973. None of them returned to work. However, Phipps was on an injury-related disability both at the time of the layoff and the time he received the letter offering him his job back. He replied to that letter by notifying Respondent that he would return to work as soon as his doctor told him he was able to.7 3. Respondent's response to the union activity On July 25, 1973, Ray G. O'Marah, president of the Company, made a speech to the assembled employees in the office of Art Clauss, the vice president of the Company. Other officials- of Respondent were also present. O'Marah told the employees that he was opposed to the Union and wanted them to vote "No." He detailed a number of benefits the employees had and compared different union plans with company plans. During the talk, he said that the Steelworkers had worked 1,000 hours a year and compared that to his employees who worked the entire year. He pointed out that since the organization of the original Company in 1968 there had never been a layoff and that were recent hires, were trainees. 5 The complaint alleges, the answer admits, and I find that Roberts is a supervisor within the meaning of the Act. 6 The findings with regard to the conversation between Roberts and Phipps are based on the credited and uncontradicted testimony of Phipps. 4 These findings are based on a stipulation of all the parties and the credited testimony of O'Marah. 758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent had gone out of its way to furnish work even during the slow periods so that everyone would have work. He referred to the building of stands and work benches in the shop which had been done to give employees something to do.8 The following day, July 26, 1973, Respondent sent a letter to all of its employees reiterating much of what was said at the meeting. The letter said that an election would be held on August 3, 1973; referred to many benefits received by employees from the Company; pointed out the costs of belonging to a union and the possibility of strikes; and urged the employees to vote "No." In addition, the letter included the following paragraph: Because it is so very, very important, I would like to mention again the year round employment that you people have had. Some of you go back to 1968 and you have yet to miss a day's work. This spring I instructed Stan to bring three or four of you in to work on various Saturdays so that you would have the opportunity to earn some overtime. We didn't have a rush job but it was out of our desire to be fair with you. During several of the past winters, we have sat down and made a list of make-shift work that you could do in the shop so that we would not have to lay you off. On more than one occasion we have done this even though the company was losing money. I hope you will remember the newspaper clipping I read which was written by the Sheetmetal Workers Union in which they stated that 'they average about 1,000 hours of work per year because of all the strikes and layoffs'. That is six months work per year. We have provided you with year round employment for six years. On July 30, 1973, Respondent sent a second letter to all of its employees urging them to vote "No" at the election.9 On August 2, 1973, O'Marah held a second meeting with all of the employees. He went over much of what he had said at the first meeting. He said the employees didn't need the Union because they could work out their problems. He also urged them to vote "No" at the election which was to be held the next day. As set forth above, the election was conducted on August 3, 1973, and the employees voted for the Union 11-0. B. Respondent's Defense Respondent asserts that it was compelled to lay off the four employees mentioned above because of economic circumstances . According to Respondent, a number of bids for major sales had been rejected about that time; its franchise area for some of the equipment it sold had been reduced ; it was showing record losses ; and economic survival required the layoff. Respondent does not contend that the four laid-off employees were unsatisfactory. 10 " These findings are based on the credited and uncontradicted testimony of Russell and Morgan. a This letter contained a number of questions and answers. None of them are alleged to be violative of the Act. 10 Russell was never criticized and was often complimented for his work by both his supervisor and customers. He received a 45-cent-an-hour raise on May 1, 1973. He, along with other employees, had been sent to a Respondent does not contend that there was a lack of work for the employees to do in the shop. Shop Foreman Jerry Slapper credibly testified that in the beginning of August 1973 there was a lot of rental equipment to work on in the shop and that they were busy. He also credibly testified that before the layoff there was much work going on in the shop. In a similar manner, Morgan credibly testified that at the time he was laid off there were two pieces of equipment that he was working on and there was much work to be done. With regard to the selection of the four employees to be laid off, O'Marah testified that he left that to the service manager with the understanding that the eight people who remained had to have enough skills to cover the entire product line that Respondent handled. O'Marah averred that they decided that they could reduce one welder, one mechanic, and one helper with the fourth man to be selected by the service manager. According to O'Marah, within this framework of the skills that were needed, the choice of who was to be laid off was made strictly on the basis of the men's ability. In the months preceding the layoff, Respondent's financial situation was depressed by its failure to receive awards on a number of major bids that it made . In late spring 1973, two of Respondent's major accounts, Komat- sti,America and Westinghouse Air Brake notified Respon- dent that because of a lack of sales volume they were going to seek other distribution outlets." Respondent's records established that in the 5 months ending December 31, 1971, Respondent lost $7,076.47 on total sales of $110,496.28 ; for the 12 months ending December 31, 1972 Respondent showed profits (before taxes) of $64,237.42 on total sales of $2,749,759.98, with a loss of $5,801.63 in July and a loss of $19,609.66 in August; for the 8 months ending August 31, 1973, Respondent lost $200,690.75 on total sales of $1 ,061,209.83, with a loss of $39,497.65 in July and $13,428.04 in August. In comparing the first 8 months of 1972 with the first 8 months of 1973, the records show that for the first 8 months of 1972 Respondent lost $104,825.87 and in spite of this ended the year with a profit of $64,237.42. For the first 8 months of 1973, Respondent lost $200,690.75. The figures for the last 4 months of 1973 are not in the record. O'Marah testified that he had a number of conversations with his two partners, Jess Evrard and Art Clauss, beginning as early as March or April 1973 with regard to the possibility of laying off employees if the business situation did not improve. O'Marah further testified that some time in July before he left for vacation they again discussed the financial picture with a view toward trimming the organization in line with their sales volume through a company-wide curtailment of personnel. He further averred that they decided to wait until they received the July figures before making the final decision on the cutback and that if July turned out to be a good company-paid training school. Morgan was told by Roberts at the time of the layoff that Respondent was well satisfied with his work as a welder and that the layoff was caused by a slowness of work . Jerry Slapper, Respondent's shop foreman, credibly testified that Russell was a good mechanic who was better than the other employees with regard to some of the equipment and that Morgan was an excellent welder. 11 These findings are based on the credited testimony of O'Marah. MACHINERY DISTRIBUTION CO. month in terms of profits, they would reevaluate the situation and defer the decision to layoff. According to O'Marah, while he was away on vacation during the week preceding August 10, he spoke on the telephone to Clauss and Evrard; they discussed the July figures which showed an operating loss of almost $40,000 on total sales of about $159,000; and they decided to reduce the number in the service department by four effective Friday, August 10. The only other layoff about that time was that of a salesman on August 15. In addition, the staff was somewhat reduced through attrition. One salesman re- signed in late May and was not replaced. The two territories of those salesmen were cut out of the sales department. In mid-August, one employee in the parts department left to take another job. In addition, O'Marah's secretary took maternity leave and some additional time off without pay at her own request. O'Marah testified that, in the past, Respondent had found work to keep employees busy and avoid layoffs but that the financial picture was worse in July 1973 than it had ever been before and that the severity of the economic problem was such as to require layoffs. In a letter to all employees dated June 6, 1973, Respondent stated that it had hired two new employees,,; Richard Smith and Gaylord Slaysor. Both were in the service department. The letter said "We are still very; confident that we will have a busy summer and fall. We appreciate your efforts." Between February 1 and June 1, 1973, at a time when Respondent alleges that it was suffering from a financial crisis, it granted wage increases to nine employees in the service department. As indicated above, at the time of the layoff, there was still a substantial amount of work to be done in the service department. O'Marah testified that in October 1973 there was an influx of business and, on the dates set forth above, the four laid-off employees were offered their jobs back. C. Analysis and Conclusions 1. The interrogation and promise of benefit As set forth in detail above, Respondent's service manager, Roberts, spoke to Phipps about the Union on May 15 or 16, 1973. Though Roberts used the phrase, "I hear you guys are going union,." he was not making a declaratory statement but was asking for a response from Phipps. Roberts was interrogating Phipps, and Phipps so understood it when he replied that they were going union. Roberts' statement to Phipps that if the Union did not come in the employees would get their trucks back, was a direct promise of benefit to induce the employees to refrain from union activity. By making such a promise, Respon- dent interfered with the rights of employees guaranteed by Section 7 and thereby violated Section 8(a)(1) of the Act. Roberts interrogated Phipps about the union activity of the employees in the same conversation that he made the unlawful promise. As became apparent at a later date from O'Marah's speeches and letters, Respondent was hostile toward the Union. No assurance was given to Phipps that the employees would be free from reprisal. Under those circumstances , the interrogation also violated Section 759 8(a)(1) of the Act. Struksnes Construction Co., Inc., 165 NLRB 1062; Big Three Industries, Inc., 192 NLRB 370. 2. The layoffs Respondent's employees had the right under the Act to select the Union to represent them. They exercised that right through the activities of some of the employees in organizing on behalf of the Union, and by voting for the Union in a Board-conducted election. During the organizational drive, Respondent, through Roberts, manifested its animus against the Union by engaging in unlawful interrogation and an unlawful promise of benefit. On July 25, in his speech to the assembled employees, O'Marah also expressed his opposi- tion to the Union and urged the employees to vote "No" at the election. During that speech, O'Marah pointed out that the Company had never laid off any employees during slow periods and had gone out of its way to furnish work. In the same speech, he said that union employees only worked an average of a thousand hours a year. The same theme was repeated in O'Marah's letter of July 26, in which he reminded employees that they had year-round work, and that sheet metal union employees averaged 1,000 hours of work per year, because of strikes and layoffs. O'Marah reminded employees that on more than one occasion the Company had followed its no-layoff policy even though it was losing money. The last two sentences of that letter make it clear that O'Marah was comparing the union situation with a nonunion situation. In referring to the 1,000 hours work per year of the average sheet metal union worker, he said, "That is six months work per year. We have provided you with year round employment for six years." On August 3, the employees unanimously voted for the Union and 7 days later, on August 10, Respondent broke with its past policies and laid off four employees in the bargaining unit. By proving the facts set forth above, the General Counsel has established aprimafacie case that the four layoffs were motivated by Respondent's desire to retaliate against its employees for selecting the Union to represent them. Respondent's defense must be weighed in the light of that evidence. I have credited Respondent's assertion that it had been unsuccessful in a number of important bids, and that it anticipated losing some of its sales territory. I have also credited Respondent's assertion that at the time of the layoff, it was suffering even more serious economic difficulties than it had in prior years. However, Respon- dent's contention that the layoffs were motivated solely by economic considerations, is put in doubt by a number of circumstances. During the time that Respondent was suffering those losses, it still hired two new employees in the service department. Also during that time, Respondent raised the pay of a large number of the service department employees. When the layoff occurred, there was a substantial amount of work to be done. Respondent's experience in 1972 indicated that economic losses in July and August could be compensated for by good business during the remainder of the year. There are indications that the same pattern was being repeated in 1973 in that an 760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD influx in business in October required Respondent to hire more mechanics in the service department. The strongest reason for questioning Respondent's economic defense flows directly from O'Marah's own speeches and letters. O'Marah told the employees that they had been provided with year-round employment since the Company went into business, even though the Company was losing money, and contrasted that with union employees who only work 6 months a year . The question of the layoff was thereby related to union or nonunion status, and not to the economic condition of Respondent. Under all of these circumstances, I am persuaded that Respondent was using its economic condition as a pretext to disguise the real reason for layoffs .12 I find that the layoffs would not have occurred but for the fact that the employees voted for the Union ; that Respondent laid off the four employees to retaliate against employees for selecting the Union to represent them; and that Respon- dent thereby violated Section 8(aX3) and (1) of the Act.13 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations of Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent laid off Morgan, Russell, Slaysor, and Phipps on August 10, 1973, and did not offer reinstatement to Morgan until October 4, 1973, or to Russell, Slaysor and Phipps until November 5, 1973,14 thereby violating Section 8(aX3) and (1) of the Act, I shall recommend that Respondent be ordered to make those four employees whole for any loss of pay resulting from those layoffs by payment to each of them of a sum of money equal to the amount each normally would have earned as wages from Respondent between August 10 and 12 1 do not credit O'Marah's assertion that he decided along with his partners to lay off employees when the business situation did not improve. i3 The General Counsel argues as an alternative theory that Respondent violated Section 8(axl) and (3) of the Act by choosing the laid-off employees because of their individual activities in spearheading the union drive. I do not believe that such a finding would be warranted . Though two of the laid-off employees were keymen for the Union, the third did no more than speak on behalf of the Union to other employees, and there is no evidence that the fourth engaged in any activity other than voting for the Union in a secret election. Respondent knew that all eleven employees voted in favor of the Union . There is no evidence that Respondent had any particular hostility toward the four employees selected for layoff. O'Marah's explanation, that he was concerned with having enough skills to cover his product line, was plausible. 14 Though Russell, Slaysor, and Phipps were offered their jobs back on October 26, 1973, that offer was for them to return to work on November 5, 1973. The effective date of the offer was therefore November 5. With regard to Morgan, Russell, and Slaysor, as the Board held in American October 4, 1973, for Morgan, and between August 10 and November 5, 1973, for Russell, Slaysor, and Phipps,15 less net earnings during those periods . Such backpay shall be computed on a quarterly basis in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289, and shall include interest at 6 percent, as provided in Isis Plumbing & Heating Co., 138 NLRB 716. It is further recommended that Respondent be ordered to preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, per- sonnel records and reports, and all other records necessary to analyze the amount of backpay due. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By laying off Garland L. Morgan, Thomas L. Russell, Lonnie Phipps, and Gaylord W. Slaysor, on August 10, 1973, because its employees selected the Union to represent them, Respondent violated Section 8(a)(3) of the Act. 4. By the foregoing conduct, by interrogating an employee concerning union activity, and by promising benefits to employees to induce them to refrain from union activity, Respondent interfered with, restrained, and coerced employees in the exercise of their rights guaran- teed to them by Section 7 in violation of Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact , and conclusions of law, and upon the entire record , and pursuant to Section 10(c) of the Act, I hereby issue the following recommend- ed: ORDER 1s Respondent, Machinery Distribution Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Laying off or otherwise discriminating against any employee because its employees selected the International Manufacturing Company of Texas, 167 NLRB 520, the backpay period is tolled as to discriminatees who do not reply to an offer of reinstatement, on the date of the last opportunity to accept the offer of reinstatement. Phipps did reply by accepting the November 5, 1973, reinstatement offer which in effect put him on an injury-related leave-of-absence status after that date 15 The parties stipulated and I have therefore found that Phipps was on an injury-related disability at the time he was laid off and at the time he received the letter offering him reinstatement . To the extent that he was unavailable for work during the backpay period due to injuries he incurred before the unlawful layoff , he is not entitled to backpay. Cf. American Manufacturing Company of Texas, supra. 16 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. MACHINERY DISTRIBUTION CO. Union of Operating Engineers, Local Union No. 12, AFL-CIO, to represent them. (b) Interrogating employees concerning union activity. (c) Promising benefits to employees to induce them to refrain from union activity. (d) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed to them in Section 7 of the Act. 2. Take the following affirmative action to effectuate the policies of the Act: (a) Make Garland L. Morgan, Thomas L. Russell, Lonnie Phipps, and Gaylord W. Slaysor whole for any loss of earnings they may have suffered, in the manner set forth in the section of this Decision 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, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due. (c) Post at its place of business at 1155 Baldwin Park Boulevard, Baldwin Park, California, copies of the atta- ched notice marked "Appendix." 17 Copies of the notice on forms provided by the Regional Director for Region 21, 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, includ- ing 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 21, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 17 In the event that the Board's 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 be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an order of the National Labor Relations Board." 761 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The Act gives all employees these rights: To engage in self-organization; To form, join, or help unions; To bargain collectively through a representative of their own choosing; To act together for collective bargaining or other mutual aid or protection; To refrain from any or all these things except to the extent that membership in a union may be required pursuant to a lawful union-security clause. WE WILL NOT do anything that interferes with, restrains or coerces employees with respect to these rights. More specifically, WE WILL NOT lay off or otherwise discriminate against any employee because our employees selected International Union of Operating Engineers, Local Union No. 12, AFL-CIO, to represent them. WE WILL NOT interrogate employees concerning union activity. WE WILL NOT promise benefits to employees to induce them to refrain from union activity. WE WILL make Garland L. Morgan, Thomas L. Russell, Lonnie Phipps, and Gaylord W. Slaysor whole by paying them backpay with interest at 6 percent. MACHINERY DISTRIBUTION COMPANY (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, Eastern Columbia Building, 849 South Broadway, Los Angeles, California 90014, Telephone 213-688-5229.