Jeffries Truck Parts and Equipment, Inc.

JEFFRIES TRUCK PARTS AND EQUIPMENT, INC. Jeffries Truck Parts and Equipment, Inc. and Roadway Equipment Sales, Inc. and Teamsters Automotive Workers, Local 495, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America. Cases 21-CA-12103 and 21-RC-13359 January 15, 1975 DECISION, ORDER, DIRECTION, AND DIRECTION OF SECOND ELECTION BY ACTING CHAIRMAN FANNING AND MEMBERS KENNEDY AND PENELLO On March 8, 1974, Administrative Law Judge Herman Corenman issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief, and the General Counsel filed cross-exceptions and an answering 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 briefs, and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein. The Administrative Law Judge found that Respon- dent violated Section 8(a)(1) when Ed Jeffries remarked to William F. Matters, 2 weeks after the election, that he was willing to spend $20,000 to keep the Union out. Respondent contends that the remark was not coercive, nor was it considered coercive of employees' Section 7 rights, and it is protected free speech under Section 8(c). Member Penello joins Member Kennedy in finding merit in Respondent's contention that such remark was not violative of Section 8(a)(1). Neither the General Counsel nor the Administra- tive Law Judge cites precedent for finding such statement unlawful. An employer may oppose his employees' union activity and may spend whatever sums he deems advisable in doing so. We fail to see how the announcement, unaccompanied by threats that the expenditures will be used to finance unlawful activities, infringes upon employees' Sec- I Acting Chairman Fanning finds , in agreement with the Administrative Law Judge, that Respondent's announcement of its willingness to spend $20,000 to keep the Union out violated Sec. 8(aX1). In doing so, he notes that such remark was not isolated , and must be weighed in the context of Respondent's other conduct, found unlawful herein, including interroga- tion, and threats of layoff if the Union came in. Considered in the light of these unlawful statements , Acting Chairman Fanning finds that the announcement that Respondent was ready and willing to spend the substantial sum of $20,000 to keep the Union out tended to demonstrate to 147 tion 7 rights. Accordingly, we find contrary to the Administrative Law Judge that the remark in question did not violate Section 8(a)(1).1 However, unlike our dissenting colleague, we affirm the Administrative Law Judge's findings that Respondent violated Section 8(a)(1) of the Act when Ed Jeffries interrogated Roger Price in the Bell Pines Restaurant as to Price's knowledge of the Union's organizational activities and his attitudes with respect thereto, and threatened that if the Union came in there would be layoffs with Price, the newest man, being the first to go, and when Ed Jeffries later remarked to Price, subsequent to Price's filing of unfair labor practice charges, that, had he known Price felt like that, Price would never have been working that long. Though Jeffries denied the first conversation with Price, the Administrative Law Judge credited Price because he had placed the conversation as of the time the Union had filed a petition for an election with the Board. We perceive nothing in the record to warrant reversal of that credibility finding.2 Thus, Jeffries' remarks, as related by Price, revealed a degree of knowledge of union organizational activi- ties such as would have been obtained through receipt of a copy of the petition (filed on August 14) and the Union's bargaining demand 1 day earlier. In these circumstances, we perceive no error in the Administrative Law Judge's finding that the state- ments made, according to Price in mid-August, occurred during the critical period prior to the election, and together with Jeffries' later statement to Price on September 6 constituted objectionable conduct affecting the election. Thus, Jeffries' interrogation of Price as to his union activities, his knowledge of the union activities of other employees, and the threat that if the Union came in there would be layoffs, with Price the newest man being the first to go, could have no other effect than to tend to restrain and coerce Price from supporting the Union thus interfering generally with employees exercise of Section 7 rights. Clearly, such conduct violated Section 8(a)(1) of the Act. Nor was that Jeffries' only statement of a willing- ness to discriminate against employees for their union activity. He later commented to Price on September 6, upon learning that Price believed he had been laid off for union activity, "Well, I'll be employees that their organizational activities would be met by whatever action Respondent deemed necessary to thwart their desires . So viewed, the remark in question was an open attempt to discourage union activity. Cf. Charlena Lobtanco, an Individual, d/b/a Lob/'s Cafeteria, 187 NLRB 420 (1970). 2 Indeed Respondent has not taken express exception to the Administra- tive Law Judge's finding of fact that the conversation occurred as testified to by Price, though it does take exception to the Administrative Law Judge's analysis and conclusions with respect thereto. 216 NLRB No. 26 148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD goddammed. I never would have believed that in my life. If I had known that, you never would have been working here this long." That statement carried the clear implication that it was only his lack of knowledge of union activities by Price that enabled Price to work as long as he had. Although, as our dissenting colleague finds, the remark may well have been "impelled by his anger at Price for accusing him of unlawful discrimination," in circumstances where the charge was not true, it can hardly be said to have been "no more than an expression of disbelief that Price could believe that Respondent would discrimi- nate against Price."3 [Emphasis supplied.] In effect, Jeffries, while denying discrimination in fact, reem- phasized his earlier stated readiness to discriminate in the right circumstances. Considering this remark in the light of Jeffries' earlier unlawful interrogation of Price and his threats to retaliate against employees if the Union were successful, we are satisfied that the Administrative Law Judge properly found that Jeffries' statement on September 6 violated Section 8(a)(1). As the record shows that Respondent engaged in conduct violative of Section 8(a)(1) during the critical preelection period, and that such conduct was not isolated or remote and could reasonably have an impact on the outcome of the election, particularly here, where there was a close election in which eight employees voted-three votes were cast for the Petitioner, three votes were cast against the Petition- er, and two votes were challenged-we find that Respondent's conduct interfered with the election and thus may warrant our setting such election aside. However, the record also shows that, with respect to the two challenged ballots, the Board agent's challenge of the ballot of Price was sustained because Price was not an employee and therefore not eligible to vote on the date of the election, and the Petitioner withdrew its challenge to the ballot of Smithgall. Thus, the revised tally of ballots in the election now shows that only the challenged ballot of Smithgall remains to be opened and counted. In order that Petitioner not be penalized as a result of Respon- dent's wrongdoing, we shall direct a new election only if the ballot of Smithgall, upon being opened and counted, is a vote against the Petitioner. On the other hand, if Smithgall's ballot indicates that he voted for the Petitioner, the result would be 7 votes for the Petitioner and 6 against, and the Petitioner should be certified as the representative of the employees. Accordingly, we shall direct that the challenged ballot of Smithgall be opened and counted and, if the Petitioner then has a majority of the valid votes cast, 3 There is no inconsistency in the General Counsel's refusal to issue a complaint on the basis of Price's charge of unlawful discrimination, and his that the Petitioner be certified as the bargaining representative for the employees in the appropriate unit. However, if the revised tally of ballots shows that the Petitioner has not received a majority of the valid votes cast we shall order that the election be set aside and direct that a new election be conducted. AMENDED CONCLUSION OF LAW Substitute the following for the Administrative Law Judge's Conclusion of Law 3: "3. By interrogating employees concerning the identity of union activists and by threatening employees with layoffs and other reprisals in connec- tion with their union activities, the Respondent has interfered with, restrained, and coerced employees in the exercise of rights guaranteed them in Section 7 of the Act and has thereby engaged in, and is engaging in, unfair labor practices within the meaning of 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 Respondent, Jeffries Truck Parts and Equipment, Inc., and Roadway Equipment Sales, Inc., Bell, California, its officers, agents, successors, and assigns, shall take the action set forth in the Administrative Law Judge's recommended Order, as modified herein: Delete from paragraph 1 the following words: "or threatening to expend large sums of money to prevent unionization of their employees." DIRECTION It is hereby directed that the Regional Director for Region 21 shall, pursuant to the Board's Rules and Regulations, within 10 days from the date of this Order, open and count the ballot of Herman Loyd Smithgall and thereafter prepare and cause to be served on the parties a revised tally of ballots, including therein the count of said ballot. In the event that the revised tally of ballots shows that the Petitioner has received a majority of the valid ballots cast, the Regional Director shall issue the appropri- ate certification of representative. However, in the event the revised tally of ballots shows that the Petitioner has not received a majority of the valid ballots cast, the following shall be applicable. IT IS FURTHER DIRECTED that the election conduct- alleging that Jeffries' statement was an independent 8(aXl) violation. JEFFRIES TRUCK PARTS AND EQUIPMENT, INC. ed herein on October 26, 1973, be, and it hereby is, set aside. DIRECTION OF SECOND ELECTION A second election by secret ballot shall be conducted among the employees in the unit found appropriate, at such time as the Regional Director deems appropriate. The Regional Director for Region 21 shall direct and supervise the election, subject to the National Labor Relations Board Rules and Regulations, Series 8, as amended. Eligible to vote are those in the unit who were employed during the payroll period immediately preceding the date of issuance of the Notice of Second Election, including employees who did not work during that period because they were ill, on vacation, or temporarily laid off. Also eligible are employees engaged in an economic strike which commenced less than 12 months before the election date and who retained their status as such during the eligibility period and their replacements. Those in the military services of the United States may vote if they appear in person at the polls. Ineligible to vote are employees who have quit or been discharged for cause since the designated payroll period and employees engaged in a strike who have been discharged for cause since the commencement thereof, and who have not been rehired or reinstated before the election date, and employees engaged in an economic strike which commenced more than 12 months before the election date and who have been permanently replaced.4 Those eligible shall vote whether or not they desire to be represented for collective-bargaining purposes by Teamsters Automotive Workers, Local 495, Interna- tional Brotherhood of Teamsters, Chauffeurs, Ware- housemen & Helpers of America. MEMBER KENNEDY, concurring in part and dissenting in part: I concur with Member Penello in dismissing the allegation that Respondent violated Section 8(a)(1) of the Act when Respondent's vice president, Ed Jeffries, told an employee that Respondent was willing to spend $20,000 to keep the Union out. Unlike the majority, however, I find that the Administrative Law Judge's conclusion that Respon- dent's other conduct herein is grounds for setting aside the election is unsupported by the evidence. The representation petition in this case was filed on August 14. The election was held October 26. The 4 In order to assure that all eligible voters may have the opportunity to be informed of the issues in the exercise of their statutory right to vote, all parties to the election should have access to a list of voters and their addresses which may be used to communicate with them . Excelsior Underwear Inc., 156 NLRB 1236 (1966); N.LRB. v. Wyman-Gordon Co., 394 U.S. 759 ( 1969). Accordingly, it is hereby directed that an election eligibility list, containing the names and addresses of all the eligible voters, 149 Administrative Law Judge found that Respondent's vice president, Ed Jeffries, interrogated employee Price about his union activities in a restaurant in mid-August. Because Price testified that Jeffries said at this time that "you got a letter from the Union today or in the last day or so, that the Union wanted to come in," the Administrative Law Judge conclud- ed that this interrogation occurred during the critical preelection period. Price makes no claim that Jeffries referred to a letter being sent to the Employer. There is absolutely no evidence whatsoever in this record as to when Respondent received the petition. The Administrative Law Judge's inference is unsupported by the record. The majority adopts the Administrative Law Judge's inference because Jeffries' mid-August re- marks "revealed a degree of knowledge of union organizational activities such as would have been obtained through receipt of a copy of the petition .. . and the Union's bargaining demand one day earlier." The majority fails to say what "degree" Jeffries' knowledge had reached. The fallacy is self- evident, since that general knowledge evident here could have been obtained in any number of ways which would warrant an equally valid inference that the remarks occurred outside the critical period. Furthermore, the election was not held until October 26 and, in view of the isolated nature of the conversation in a social setting, I find it too remote for it to be reasonably expected to have had an impact sufficient to warrant setting aside the elec- tion. The majority also relies on Ed Jeffries' later remark to Price as a basis for setting aside the election. That remark is the basis of the remaining 8(a)(1) violation found by the Administrative Law Judge, and the majority finds that it interfered with the election. I do not agree. This finding by the Administrative Law Judge and the majority is contrary to the preponderance of the evidence. Respondent's president, Ray Jeffries, and employee Price were good social friends. Price was laid off on September 4. On September 5, the Union filed a charge with the Board alleging that Price was discriminatorily discharged. That charge was served on September 6. Later that day Price came to the plant. When Ray Jeffries asked Price if Price thought he had been laid off for his union activities, Price answered yes. Ray Jeffries replied, "Well, I never would believe that in my life." As the Administrative must be filed by the Employer with the Regional Director for Region 21 within 7 days after the date of issuance of the Notice of Second Election by the Regional Director. The Regional Director shall make the list available to all parties to the election . No extension of time to file this list shall be granted by the Regional Director except in extraordinary circumstances. Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed. 150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Law Judge also found, when Ed Jeffries heard Price's statement he also expressed disbelief , and added that "If I had known that you never would have been working here this long." The General Counsel, as the Administrative Law Judge found, subsequently dismissed the Union's charge that Price's layoff violated Section 8(aX3). The remark itself is clearly no more than an expression of disbelief that Price could believe that Respondent would discriminate against Price. The General Counsel obviously did not construe the remark as evidence that the discharge of Price was discriminatorily motivated. I find it clear that Respondent's remarks to Price were precisely what they appear to be on their face-an expression of disbelief in Price's assertion that he had been discriminated against. The majority, in its analysis of the impact of Ed Jeffries' statement, lifts it completely out of its context. Ray Jeffries was "surprised" that his supposed friend, Price, would file a charge against Jeffries alleging that Jeffries had laid off Price in violation of Federal law. In this connection, Ray Jeffries' testimony was that when he walked into the lobby and saw Price talking to his secretary on September 6 (after Respondent had been served with the charge), "He [Price] was there and talking to Barbara and I was a little upset about it." This testimony of Ray Jeffries lies squarely within his other testimony describing his distress over Price's accusation of discrimination . The record is clear that this was what "upset" Ray Jeffries and Ed Jeffries and was the reason for their displeasure with Price. The Administrative Law Judge's actual description of Ed Jeffries' remark is without evidential support. The Administrative Law Judge found, and I quote, "I further find that Ed Jeffries' remark to Roger Price on September 6, 1973 at the Respondents' place of business that if he had known that Price was active for the Union he `never would have been working here this long,' violated Section 8 (axl) of the Act." But there simply is no evidence to support that part of the finding which is emphasized. Price 's credited testimony is that immediately after Ray Jeffries had turned away from him: Mr. Ed Jeffries came charging out of his office and he said, "You what?" And I said, "Ed, Ray asked me to tell him the truth and I told him the truth and, yes, I do believe that I was laid off because of my union activities." And he said, "Well, I'll be goddamned. I never would have believed that in my life. If I had known that you never would have been working here this long." The context makes clear that Ed Jeffries' remark was impelled by his anger at Price for accusing him of unlawful discrimination. For these reasons, I would dismiss the complaint's allegations discussed above and would proceed to dispose of the challenged ballots. Having done so, I would certify the results of the election or the representative, as appropriate. DECISION STATEMENT OF THE CASE HERMAN CORENMAN, Administrative Law Judge: The hearing in this proceeding was held on February 11, 1974, at Los Angeles, California, on a complaint of the General Counsel against Jeffries Truck Parts and Equipment, Inc., and Roadway Equipment Sales, Inc., herein jointly called the Respondents. The complaint, issued on November 21, 1973, pursuant to charges and amended charges filed by the Union on September 5, October 9 and 11, 1973, alleges violations of Section 8(a)(1) of the Act. The Respondents' answer to the complaint denies having engaged in the unfair labor practices alleged in the complaint. On December 26, 1973, the Acting Regional Director for Region 21 of the Board consolidated for hearing with the unfair labor practice case, the issues presented by the Union's objections to conduct affecting the results of the election held on October 26, 1973, and its challenge to the ballot of Herman Loyd Smithgall in Case 21-RC-13359. The objections to election filed by the Union coincide with the unfair labor practices alleged in the complaint. All parties were afforded full opportunity to appear, to introduce evidence, to examine and cross-examine witness- es, and to argue orally on the record. Counsel for the General Counsel elected to argue orally on the record and waived her right to file a brief. The Union made no physical appearance on the record, but withdrew its challenge to the ballot of Herman Loyd Smithgall. A brief filed by the Respondent has been carefully considered together with the oral argument by counsel for the General Counsel. Upon the entire record and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The parties stipulated and agreed, and I find, that Jeffries Truck Parts and Equipment, Inc., is a California corporation engaged in the We of truck parts and equipment. Roadway Equipment Sales, Inc., is a California corporation engaged in the sale of hydraulic jacks, tires, and pneumatic tools. Respondent Jeffries and Respondent Roadway, herein collectively called Respondents, with their principal places of business located at 5412 East Gage Avenue, Bell, California, have common offices, ownership, directors, and operators , and a common labor relations policy. During the past calendar year, Respondents, in the normal course and conduct of their business operations, described above in the aggregate, purchased goods from JEFFRIES TRUCK PARTS AND EQUIPMENT, INC. suppliers located outside the State of California valued in excess of $50,000. I find that the Respondents at all times material herein have been and are an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED The parties have stipulated and I find that Teamsters Automotive Workers, Local 495, International Brother- hood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, herein called the Union, is an organization admitting employees to membership and which exists, at least in part, for the purpose of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, and other terms and conditions of employment, and is a labor organization within the meaning of Section 2(5) of the Act. Ill. THE UNFAIR LABOR PRACTICES Roger Price was employed as a counterman by the Respondents from May 1973 to September 4, 1973, when he was laid off. He cast a challenged ballot in the Board election conducted on October 24, 1973, and the challenge made by the Board agent was sustained . He has not been recalled by the Respondent since his September 4, 1973, layoff, and he is currently employed elsewhere. The Union had filed a petition for an election in Case 21-RC-13359 on August 14, 1973. About this date in mid-August 1973, while Price was having lunch in a restaurant called Bell Pines, with the manager of one of the Respondents, Mr. Ed Jeffries, Respondents' vice president , entered the restau- rant, ordered his lunch, and then turned to Price and said, "Do you know anything about the Union?" Price replied, "No, I don't." Jeffries then said, "You got a letter from the Union today or in the last day or so, that the Union wanted to come in." Jeffries asked Price what he thought about the Union. Price replied that he did not like the Union, that the Union had only taken his money and not helped him in any way. Jeffries then said, "Well, there are some people trying to get the Union in. Do you have any idea who it might be or anything?" Price replied, "No." Ed Jeffries told Price, "You know, if the Union comes in, then we are going to have to lay people off," and he said further, "You are .the newest man there, so you'd be the first one to 9 0.991 Following Price's layoff on September 4, 1973, the Union filed a charge with the Region 21 of the Board on September 5, 1973, alleging that the Respondents had discriminatorily discharged Price because of his union activities. This charge was served by registered mail on September 5, 1973, and delivered to the Respondent, September 6, 1973. On this date of September 6, Price came to the Respondent's place of business to pick up his 1 Ed Jeffries, while conceding that he has been eating in this restaurant for 10 to 15 years, and has had many conversations with almost all of his employees while eating in the restaurant, nevertheless, testified contrary to Price's testimony that "There was no conversation with Roger Price." In view of the fact that this conversation ensued at the time that the Union had filed its petition for an election August 14, 1973, with the Region 21 of the Board, I credit Price's testimony that there was such a conversation with Ed Jeffries. 151 bicycle and to give the bookkeeper and secretary his new address. While there in the reception lobby, talking to the secretary, Mr. Ray Jeffries, Respondents' president, came in and asked Price, "Do you think we laid you off because of your union activities?" Price answered, "Well, Ray- mond, to tell you the truth, yes, I do." Jeffries replied, "Well, I never would believe that in my life."2 Price credibly testified that Respondents' vice president, Ed Jeffries, then came charging out of his office and said, "You what?" and Price replied, "Ed, Ray asked me to tell him the truth, and I told him the truth, and, yes, I do believe that I was laid off because of my union activities." Ed Jeffries then said, according to Price's credible and uncontradicted testimony, "Well, I'll be goddamned. I never would have believed that in my life. If I had known that, you never would have been working here this long." Price then turned to the secretary and said, "Barbara, I can see I better leave at this time," and he left .3 William F. Matters was formerly employed by the Respondents for 5-1/2 years as a pickup and delivery driver. He left his employment on November 28, 1973, because of a heart attack. At the time of the hearing, he was unemployed. He was the union observer at the Board election held on October 26, 1973. The election results were inconclusive, three voting for the Union, three against the Union, with two challenged ballots. The Union filed objections to Employer's conduct affecting the results of the election. Objection 4 of the Union's objections recited that the Employer prominently displayed a rifle on the day of the election in the area selected for balloting, thereby threatening and coercing employees in the exercise of their vote. The Board Regional Director overruled this Objec- tion 4, finding that this gun was an antique, 1895 octagon- barreled Winchester rifle, which Raymond Jeffries stored in the corner of his office and was being retained as security for a debt, and the gun would be returned to the customer once payment is made by him. Employee Matters testified that about 2 weeks after the election, and presumably after the Respondent had received a copy of the Union's Objection to Election, Ed Jeffries approached Matters, according to Matters' credi- ble testimony, and told him "that he thought the Union was putting pressure on him about the guns in the building and he asked me if I saw any guns around the voting booth." Matters replied that he hadn't seen any guns around the voting booth. Matters said that the only gun he saw was the gun in the office where the ballots were counted. Matters testified further that Ed Jeffries men- tioned that he had won the election and "he wants us all to pull together with him and Ray for the Company to make money again, and if this didn't happen, he would have to do something about it." Matters replied, "If this meant firing me, okay." Jeffries then said, according to Matters' testimony, "We haven't forgotten what you did for the 2 Mr. Ray Jeffries testified that when he asked Price , "Do you really think that I lard you off because I thought you were involved in union activities," Price answered, "Raymond, I really do," but also said, "I hate Umons." 3 The charge alleging that Price's layoff violated Section 8(aX3) of the Act was dismissed by the Region 21 on November 20, 1973, and the dismissal upheld on appeal on December 18, 1973. 152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Company." According to Matters' uncontradicted testimo- ny, Jeffries told him that he was willing to spend $20,000 to keep the Union out. Called as a witness for the Respondent, Ed Jeffries testified that he received a letter from the National Labor Relations Board stating that there was a gun on the premises. Because Matters had acted as the union observer at the election, he approached Matters at his work place and told him he had received a letter and wanted to know if Matters had seen a gun in the voting area . According to Jeffries' credible testimony, Matters replied, "No, I did not, and I will swear to that, Ed." A. The Objections to the Election A hearing was ordered on the Union's Objections 1 and 3 to employer conduct affecting the results of the election. The objections are as follows: 1. Objection 1 The Employer coercively interrogated employees con- cerning their union activities and the union activities of other employees. 2. Objection 3 The Employer threatened employees with reprisals in connection with their union activities and sympathies. B. Analysis and Conclusions I have credited the testimony of former employee Roger Price concerning his conversations with Respondents' vice president, Ed Jeffries, in the Bell Pines Restaurant. I find that Jeffries' remarks made on that occasion constituted illegal interrogation concerning the identity of the union activists ; and also constituted a threat that there would be layoffs if a union came in, all in violation of Section 8(aXl) of the Act. I also find that these coercive remarks were made after the Union's petition for election had been filed on August 14, 1973. This fact was established by Ed Jeffries' remark to Price concerning his knowledge that there was a "letter from the Union today or in the last day or so that the Union wanted to come in," and Price's testimony that this conversation in the Bell Pines Restau- rant occurred in mid-August. I find that these remarks made by Ed Jeffries to Price not only constitute unfair labor practices in violation of Section 8(a)(1 ) but also support the Union's Objections 1 and 3, and are sufficient to overturn the election results. I also find that Ed Jeffries' remark to William F. Matters 2 weeks after the election that he was willing to spend $20,000 to keep the Union out coerced and restrained employees in the exercise of their Section 7 rights to organize and join unions, and therefore violated Section 8(aXl) of the Act. I further find that Ed Jeffries' remark to Roger Price on September 6, 1973, at the Respondents' place of business that if he had known that Price was active for the Union he "never would have been working here this long," violated Section 8(a)(1) of 4 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. the Act. Although Price was in a layoff status at the time, he nevertheless was entitled to the protection of Section 7 of the Act as any employee. See, e.g., Phelps Dodge Corporation v. N.LR.B., 313 U.S. 177 (1941). Section 8(a)(1) conduct a fortiori is conduct which interferes with the election. Dal-Tex Optical, 137 NLRB 1782, 1786-87 (1962). IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in section III, above, occurring in connection with the operations of the Respondents 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 the Respondents have engaged in certain unfair labor practices in violation of Section 8(aXl) of the Act, I shall recommend that the Respondents cease and desist therefrom and from in any other manner infringing upon its employees' Section 7 rights, and that it take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the above findings of fact and upon the entire records in the case, I reach the following: CONCLUSIONS OF LAW 1. The Respondents are 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 interrogating employees concerning the identity of union activists and by threatening employees with layoffs and other reprisals in connection with their union activities and by threatening to spend large sums of money to prevent unionization, the Respondents have interfered with, restrained, and coerced employees in the exercise of rights guaranteed them in Section 7 of the Act and have thereby engaged in, and are engaging in, unfair labor practices within the meaning of Section 8(aXl) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the.following recommended: ORDER4 Respondents, their officers , agents, successors, and assigns shall: 1. Cease and desist from coercively interrogating employees concerning union activities or the identity of union activists, or threatening layoffs or other reprisals against employees who engage in union activities, or 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. JEFFRIES TRUCK PARTS AND EQUIPMENT, INC. threatening to expend large sums of money to prevent unionization of their employees. 2. Take the following affirmative action to effectuate the policies of the Act: (a) Post at their plant in Bell, California , copies of the attached notice marked "Appendix." s Copies of the notice on forms provided by the Regional Director for Region 21, after being duly signed by the Respondents, shall be posted by the Respondents immediately upon receipt thereof and be maintained by them for 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondents to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 21, in writing, within 20 days from the date of this Order, what steps the Respondents have taken to comply herewith. (c) The October 26, 1973, election shall be set aside and a new election held at such time in the future within the sound discretion of the Regional Director. 5 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."" APPENDIX 153 NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT interrogate our employees with respect to their union activities or the identity of union activists, or threaten layoffs or other reprisals against employees for engaging in union activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization, to form, join, or assist Teamsters Automotive Workers Local 495, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, or any labor organization, to bargain collectively through represent- atives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities, except to the extent that such right is affected by the proviso to Section 8(a)(3) of the Act. JEFFRIES TRUCK PARTS AND EQUIPMENT, INC.; AND ROADWAY EQUIPMENT SALES, INC.