United Electrical Supply Co., Inc.

UNITED ELECTRICAL SUPPLY COMPANY United Electrical Supply Company, Inc. and Retail Clerks Union .Local 1015, affiliated with Retail Clerks International Association AFL-CIO. Case 17-CA-6505 February 5, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO On October 23, 1975, Administrative Law Judge Sidney J. Barban issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a motion to reopen the hearing. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record I and the at- tached Decision in light of the exceptions and has decided to affirm the rulings, findings,' and conclu- sions 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 Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby i Respondent's motion to reopen the hearing for the purpose of submit- ting financial data into the record is hereby denied as being an attempt to continue litigating matters which it had an opportunity to litigate during the hearing The data is neither newly discovered nor previously unavailable evidence. As stated in the Administrative Law Judge's Decision, Respon- dent was afforded an opportunity to present figures comparing its financial situation during 1973-74 with 1974-75. Indeed, Respondent brought its books to the bearing and declined a 1-day continuance to prepare its fig- ures. Respondent's contention that a 1-day postponement of the hearing for this purpose was inadequate stands unsupported and is unpersuasive Z We find no merit in Respondent's allegations of bias on the part of the Administrative Law Judge. There is no basis for finding that bias or partiali- ty existed merely because the Administrative Law Judge resolved important factual conflicts in favor of General Counsel's witnesses. As the Supreme Court has stated, "total rejection of an opposed view cannot of itself impugn the integrity or competence of a trier of fact " N LR B v. Pittsburgh Steam- ship Company, 337 U.S. 656 (1949) Moreover, it is the Board's established policy not to overrule an Administrative Law Judge's resolutions with re- spect to credibility unless the clear preponderance of all the relevant evi- dence convinces us that the resolutions are incorrect Standard Dry 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 find- ings. Respondent contends that it offered full reinstatement to employees Deyo and Jetter on May 19, 1975, and that it made a similar offer to em- ployee Kilian by letter dated August 18, 1975, after the close of the hearing herein. We find it unnecessary to pass on this contention. The question of whether the offers of reinstatement were to the employees' former positions or, if those were no longer available, to substantially equivalent positions, is a matter which we believe is best left to the compliance stage of this pro- ceeding. 749 orders that the Respondent, United Electrical Supply Company, Inc., Omaha, Nebraska, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. IT IS HEREBY FURTHER ORDERED that the complaint be dismissed insofar as it alleges that Respondent violated the Act by other acts and conduct. DECISION STATEMENT OF THE CASE SIDNEY J. BARBAN, Administrative Law Judge: This mat- ter was heard at Omaha, Nebraska, on June 26, 1975, upon a complaint issued on May 16, 1975, based upon a charge filed by the above-named Charging Party (herein the Union) on April 10, 1975. The complaint alleges that the above-named Respondent interrogated employees con- cerning union activities, threatened employees with reprisal because of union activities, and promised employee bene- fits to discourage union activities, all in violation of Section 8(a)(I).of the National Labor Relations Act, as amended, and laid off Ronald L. Deyo, Dale L. Jetter, and Kevin J. Kilian because of their membership in and activities on behalf of the Union, all in violation of Section 8(a)(1) and (3) of the Act. Respondent's answer denies the commission of the al- leged unfair labor practices, but admits allegations of the complaint sufficient to justify the assertion of jurisdiction under current standards of the Board (Respondent, in the course of the wholesale and retail distribution of electrical fixtures and supplies at Omaha, Nebraska, in a recent year had a gross volume of business in excess of $500,000, and purchased goods and services valued in excess of $50,000 directly from outside the State of Nebraska), and to sup- port a finding that the Union is a labor organization within the meaning of the Act. Upon the entire record in this case, from observation of the witnesses and their demeanor, and after due consider- ation of the briefs filed by the General. Counsel and the Respondent, I make the following: FINDINGS AND CONCLUSIONS A. Preliminary At the times material to this matter, Respondent em- ployed about 20 persons, including supervisors, in its ware- house, city sales counter, showroom sales, outside sales, purchasing, and office operations. The general manager, and one of the nine owners of Respondent, is C. J. Van Moorleghem (herein sometimes referred to as the manag- er). One of the persons employed at the city sales counter is Wayne Van Moorleghem, son of the manager. There is an issue as to whether Respondent is responsible for certain of Wayne Van Moorleghem's activities discussed hereinafter. Ken Peters, the assistant general manager, is an admitted supervisor. 222 NLRB No. 123 750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In March ' 1975 (all dates hereinafter in 1975 unless otherwise noted), Ronald L. Deyo, then employed as a salesman in Respondent's showroom, discussed umoniza- tion of Respondent's operations with other employees, contacted the Union, secured union cards, and solicited the employees to sign them. Even before he secured the cards, in mid-March, he was told by Assistant Manager Peters that Peters and'the manager had heard rumors of talk about the Union, and that the manager wanted to know "who was starting to talk." Prior to that time Deyo had spoken to Wayne Van Moorleghem about the Union. Deyo secured a number of signed union authorizations from the employees, including Dale Jetter and Kevin Kili- an. 4. Alleged Interference With Employee Rights 1. C. J. Van Moorleghem On March 25, an agent of the Board came to Respondent's establishment and advised the manager that the Union had deposited a petition for certification with the agent for filing, and gave the manager an opportunity to make a copy of the petition. According to the manager, this came as a surprise to him , and he was -,unable to get any advice or assistance as to what to do until late that evening. In the meantime, however , he spoke with a num- ber of employees concerning this matter. It appears that he first approached Assistant Manager Peters, asking what the "petition is all about." When Peters disclaimed knowledge, the manager queried an employee who was present, who also said he did not know about it. The manager then approached Deyo in the showroom, and asked if he "knew anything about this union business." Deyo replied that he did, and Manager Van Moorleghem then, asked if Deyo knew "who had gotten the ball rolling on this." Deyo told him that "I was the one that contacted the union. Then he dust kind of shook his head and walked away." I Leaving Deyo, the manager then proceeded to the lunch- -room where three employees were having lunch: Dennis Leary, Dale L. Jetter, and Ray Lovings, the latter identi- fied as the warehouse foreman. Manager Van Moorleghem asked if they had heard anything about the Union, and the three said they had. He then asked, "well, are you guys for it?" Lovings replied in the affirmative. Jetter nodded. Leary states that he replied, "No." The manager then wrote, or appeared to write, something on a pad he carried. Manager Van Moorleghem then stated that someone had certainly opened "a new can of beans," and said, "If you guys wanted a labor union, why didn't you come to me first. We could have discussed it or talked it out." Leary replied, "That's not the way it's supposed to be done. You're supposed to sign , the cards and it's supposed to be secret until it gets further along." The manager then told Leary, "You better not open'your mouth or you're going to i The manager asserts that , after he asked Deyo if-he knew anything about the petition, Deyo volunteered that he had mailed it in Manager Van Moorleghem also denied asking Deyo "who got the ball on this." I credit Deyo's testimony with respect to the incident as set forth above put your foot in-it" During the course of the conversation Manager Van Moorleghem asked if the employees knew who had started this activity, Receiving no reply, he stated that he would find out. The manager then left .2 Later that same afternoon, Deyo had occasion to talk to the manager concerning Deyo's work. As Deyo testified, "he mentioned the fact that he wished that we had come to him first about this. He said you know you opened a whole new can of beans with this. Now we're going to have to take out union dues and it's going to cause a whole bunch of bookwork for us. He said, `There's going to be a lot of changes made around here."' Manager Van Moorleghem does not refer to this incident. Thereafter, Deyo heard the manager, while near the cashier's counter, say "something to the effect that he would rather close the place down or sell out rather than to let the union come in." Manager Van Moorleghem asserts that he was talking to the cashier, telling her "that with all the problems confronting a small businessman today that if I felt like, a lot of times I felt like I ought to get the hell out of this business and let somebody else worry about it .:' He states that it was his intent to speak only for himself, and that he has in the past, when irritated by the Internal Revenue Service and the Wage and Hour Divi- sion, made similar comments. Upon observation of the wit- nesses and upon the whole record, I credit Deyo in this situation. Manager Van Moorleghem was clearly disturbed by the knowledge that the employees favored the Union. He de- scribes himself as frustrated and agitated, that he thought he had "a happy family down there," and he "didn't think that they would do what they did to me." Admittedly he was prone to make statements of this sort when agitated, by government agencies. In the circumstances, I am con- vinced he made the statements attributed to him by Deyo.3 2. Wayne Van Moorleghem On April 1, Wayne Van Moorleghem (sometimes herein referred to as Wayne) told Deyo that he wanted to speak to Deyo. He asked Deyo if the employees knew what they were doing in becoming involved with the Union. Wayne asked if Deyo was "aware that you could be laid off or fired because of this." When Deyo replied that he under- stood that he couldn't be fired so long as he complied with the law, Wayne responded, "You know, the stockholders are pretty well steamed up about this. They volunteered to come in and work if'they had to lay some of you guys off." Wayne indicated that a stockholder named Bonofede was particularly upset and "would take it as far as the Supreme 2 Manager Van Moorleghem testified that all three said they were for the Union He further states that he referred to a "can of worms," not a "can of beans", that he did not seek to find out who started the union activity; and that he did not say that he wished the employees had come to hint first. To the extent there is a conflict, I credit the testimony of General Counsel's witnesses as set out above It is noted that, notwithstanding Leary's asserted negative reply as to his interest in the Union , the nature of his entire conver- sation indicated approval rather than the contrary. 3 Even if it were assumed that the manager clearly stated only that he personally was getting out of the business-which I do not believe oc- curred-the threat to the employees' security would have been the same. Manager Van Moorleghem had personally run the business for over 20 years, and was the only operating manager these employees had known. UNITED ELECTRICAL SUPPLY COMPANY Court." a Wayne further asked if Deyo knew who would be laid off, if a layoff occurred. Deyo replied, "You don't have 'to tell me.' I know who would be laid off. I would probably be the first one lo-go." Deyo says that Wayne then made a gesture indicating Deyo was correct, and ter- minated the conversation. So far as this record shows, Wayne Van Moorleghem worked in the Respondent's operations under the same general working conditions as other employees. The evi- dence indicates, and I believe, he took certain minor privi- leges that-would have been-criticized in other employees. It is evident-that the other employees considered that he oc- cupied a special status. Thus employee Jetter went to Wayne to ask why he had not received an expected raise when he was promoted to city sales.-Wayne stated that the raise could not be given "until this union thing was all settled." Wayne's father, =the manager, testified that the other employees began ignoring Wayne in respect to their union activities, which the manager stated distressed his son greatly. Certainly the tenor, of Wayne's conversations with the employees concerning the Union were not those of an ordinary , employee,' but manifested a channel of com- munication with management to which others were not privileged. It may well be that having placed Wayne in a position in which the employees would naturally under- stand that he spoke for management, Respondent should be held responsible for his conduct. However, for reasons set forth hereinafter, I find it unnecessary to pass on this issue. 3. Analysis and Conclusions The intense and repeated efforts by Manager Van Moor- leghem to interrogate the employees concerning their activ- ities on behalf of the Union and-to find out which employ- ees were responsible for starting the union drive, in the context of this case, have a necessary tendency to interfere with, restrain, and coerce Respondent's employees in the free exercise of their rights under the Act and, thus consti- tute violations of Section 8(a)(1) of the Act. Respondent not only had no legitimate reason for such interrogation, but the manner and persistency of the interrogation could only serve to leave the employees with the conviction that the purpose was antithetical to their interest in the Union and would thus inhibit their activities. As hereinafter found, the manager followed up on these actions by dis- criminatorily laying off three employees, including Deyo, the leading advocate for the Union. However, I do not agree that Respondent violated the Act by Manager Van Moorleghem's statement to employee Jetter that he should stop talking about the proper way to secure representation before he put his,foot in his mouth, or by the manager's comment to Deyo, in the course of describing the extra clerical work the Union would cause, that there "would be a lot of changes made around here." While these situations are borderline, they do not appear necessarily coercive in the context in which they were made. 4 Bonofede , who operates a union electrical construction business him- self, testified, when asked 'if he considered the employees' representation petition "a slap in the face," "I think it doesn't show very good loyalty 751 context in which they were made. I do find that Respondent violated Section 8(a)(1) of the Act by Manager VanMoorleghem's statement in the-hear- ing of employees that he would-rather close the place down or sell it rather than let the Union come in. This is a strong statement under any circumstances, necessarily 'tending to interfere with, restrain, and coerce employees in the exer- cise of their rights under the Act, and certainly so in the circumstances in this case. I see no need to pass upon Wayne Van Moorleghem's threat of reprisal to Deyo because of the employees' union activity inasmuch as it would not affect the remedy which will be recommended hereinafter. Other allegations of interference' with employee rights will be considered hereinafter. - C. Alleged Discrimination 1. The layoffs On April 8, Manager Van Moorleghem laid off Ronald Deyo, Dale L. Jetter, and Kevin Kilian for an indefinite period. Deyo had been employed by Respondent for about 3-1/2 years and Jetter for about 2 years. Kilian had been a warehouse manager for another electrical distributor and was hired by Respondent on March 18, upon the high rec- ommendation of his former employer .5 On April 7, the day before the layoff, when Kilian had reason to be in the manager's office on another matter, the manager asked him to remain and to close the door. Manager Van Moor- leghem asked Kilian how he liked his job and people he was working with, and after receiving positive responses, asked Kilian, "how would you like to run that warehouse back there?" Kilian stated that it would take him some time to learn Respondent's business sufficiently to be able to run the warehouse. During- the course of the conversa- tion, the manager advised Kilian that he "couldn't say too much right now, but I just wanted to inform you that in the near future there is a chance for you to be able to'run that warehouse back there," and that they could discuss this further at a later time. ' Manager Van Moorleghem's testimony concerning this conversation was not essentially different, He asserts that he asked Kilian if he were capable of Funning the ware- house and received an affirmative answer, that he told Kili- an that he had "a very bright future" with Respondent, but says that the question of "how long" Kilian would be working on the job was not discussed. The manager also states that he brought up this matter because he-was con- templating some reshuffling of personnel, but this was not stated to Kilian. At the end of the following day, Manager Van Moorle- ghem spoke to Kilian, Deyo, and Jetter' separately in his office. He told each of them that they were being laid off indefinitely because of adverse business conditions, but would be recalled when business picked up. The manager indicated that he considered Kilian and Deyo good em- s Upon hiring Kilian, the manager assured him. "I have a good business here This is a slow time of the year but as in the past I expect business to pick up in the near future," and advised that Kilian would have plenty to do 752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees (the matter does not seem to have come up with Jetter), and stated that the union activity had nothing to do with his action in laying off the employees. There was some discussion as to why Respondent was keeping Stanley Dunn, a truckdriver, in the warehouse, in preference to Deyo, who had previously driven a truck for Respondent when he worked in the warehouse. The manager indicated that Dunn was receiving less pay than Deyo. At the time of the layoff, the four employees last hired by Respondent were the following: Kilian, March 18, 1975; Dunn, December 1974; Jetter, April 1973; and Deyo, November 1971.6 However, prior to the time of the layoff, the employees had never heard of a seniority system in many years at Respondent's operations. This was con- firmed by Manager Van Moorleghem. There was also em- ployed in the warehouse a part-time employee, Dan Bar- sell, who worked only after school. Barsell's hire date is not shown, but it was after that of Jetter. Since the layoff, with the end of the school year, Barsell has been employed on a full-time basis. (The manager states that he does not work any overtime.) 2. Respondent's reasons for the layoffs Respondent's is a seasonal business, largely, but not ex- clusively concerned with supplying the electrical needs of residential housing construction. Its business normally de- clines in the late fall or early winter and begins to pick up in early spring. During this slow season, Respondent had never previously laid off employees, but had kept them occupied with maintenance and warehousing tasks. Mate- rials are constantly arriving and being warehoused. There is also a regular, though reduced, demand for products stocked by Respondent, during the slow period. During the slow season of 1974-75, the Respondent also decided to extensively remodel its establishment. Some of Respondent's employees were used in part on this project, which was completed in March. Manager Van Moorleghem testified that he spoke with Assistant Manager Peters and Warehouse Foreman Lov- ings in December 1974 to the effect that, if business didn't improve, something would have to be done with respect to "the help situation." He asked Lovings if he could get by with less help, to which Lovings replied that he would need the three men he had then (Lyons, Dunn, and Kilian) and more if Respondent became busy. As Lovings recalled, Manager Van Moorleghem stated, "We've got to do some- thing, overhead and everything else. It just depends. Loyal- ties are going to depend here." In support of its contention that economic conditions caused the layoff, Respondent put into evidence a monthly comparison of its business for the last 4 months of 1974 and the first 4 months of 1975, apparently prepared for the purposes of the hearing. This shows a drop in gross sales from over $235,000 in Septem- ber 1974 to over $162,000 in January 1975. However, from this point on, sales rose steadily: $165,346.09 in February; $170,302.81 in March; and $178,408.48 in April. Likewise, net profits also rose from January through April, with the 6 Resp. Exh. 2, showing names and hire dates , has typographical errors as to Deyo's date of hire and as to Kilian's exception of a dip in February due to an unexplained and undetailed rise in expenses that month? Opportunity was afforded Respondent to present figures which would compare its financial situation during the pre- vious slow season of 1973-74 with 1974-75. Respondent brought its books into the hearing room, but finally de- clined a postponement to the next day to present the fig- ures. Manager Van Moorleghem states that he decided to lay off three employees around April 1, "because I was seeing the financial reports, sales dropping and ... there was no productive work for these people to do." He says that it was not his intention to lay off Deyo, Jetter, and Kilian, but others whom he considered less productive, but that he was told by his counsel to lay off in accordance with se- niority. He says he did so, notwithstanding his own convic- tion that productivity rather than seniority should be deci- sive in these situations. The manager testified that he did not consider laying off Dunn, who had less seniority than Deyo, because he would then have been without a truck- driver in the warehouse. When queried as to why he did not transfer Deyo, who had driving experience with Re- spondent, to the warehouse, he indicated that he did not do so because his counsel told him to lay off by departmental seniority (Deyo was then employed in Respondent's show- room) .8 Manager Van Moorleghem further testified that he gave no consideration to laying off the part-time ware- house employee on this occasion, "because of the seniority in the department again." 3. The recalls from layoff Respondent sent letters dated May 14 to Deyo and fet- ter requesting that they return to work on May 19. The manager states that this recall was in anticipation of up- coming vacations and an anticipated upturn in business. He did not recall Kilian. In fact, Manager Van Moorle- ghem asserts that he only had need for one extra worker, but sent two letters because he did not expect Deyo to return. Deyo, in fact, did not quit the interim employment he had secured, but called in sick on the day he reported to Respondent. When both men showed up, they were both put to work in the warehouse. It would appear that Deyo had expected to be returned to the sales job he last had inasmuch as he complained that he was not suitably dressed to work in the warehouse. At the end of his first day, Deyo returned to the job which he had secured after being laid off by Respondent and has not since communi- cated with Respondent concerning his employment. Deyo testified that he did not continue working for Respondent because he felt he had been put in the wrong position by Respondent and considered he had a better job with his 7 Exactly what Respondent considers "expenses" or how it determines "net profit" is not shown Using only the figures given in the exhibit, there seems to be a vast and unexplained difference between gross profit (ob- tained by subtracting "expenses" from sales) and the "net profit" shown. 8 Nevertheless, the manager was quite accustomed to transferring em- ployees from one department to another He testified that he hired Kilian in March because he had a vacancy in the warehouse caused by an extensive reshuffling of men among the several departments He also asserts that he felt Kilian out with respect to his competence to run the warehouse because he anticipated some similar moves in the future UNITED ELECTRICAL SUPPLY COMPANY new employer. Jetter has continued to work for Respon- dent in its warehouse. Kilian has not been recalled. 4. Analysis and conclusions Respondent's business serves the construction industry. For many years Respondent has experienced a slow season beginning in the late fall and running through the winter. During this season, Respondent has used its employees in performing maintenance and caretaking tasks in addition to attending to receiving, warehousing, and diminished sales activities. Never, prior to the onset of union activities in March 1975, had Respondent laid off employees during the slow season. In April 1975, less than a month after the employees had begun to sign authorization cards for the Union, Respondent laid off three employees who had signed authorizations, including the chief union protago- nist. Respondent's manager asserts that he first began to con- sider the necessity of laying off employees in December 1974, but decided that the employees could be utilized in an extensive remodeling of Respondent's premises, which was concluded in March 1975. The manager states that, around April 1, he decided to lay off three employees be- cause the financial reports showed "sales dropping" and there was no productive work for the men to do. However, these financial reports, to the contrary, show that sales had been constantly improving since January, and that, though Respondent's net income was diminished, it continued to make a profit throughout all these months. As might have been expected, the financial reports continued to show sub- stantial improvement in April as well. Although it is indi- cated that the slow season of 1974-75 was somewhat worse than that of the previous year, Respondent declined an opportunity to show, by comparable figures, that it was substantially below that of the prior year or that the upturn in business in 1975 was less than that of the previous year. It is further remarkable, if Respondent was considering a reduction of force since December 1974, that it should have hired a new employee, Kilian, in its warehouse in March 1975. Other factors also tend to impugn the credibility of Respondent's asserted motive for this reduction of force in 1975. In normal circumstances, when cutting back the work force to reduce expenses, an employer would be ex- pected to lay off part-time employees first, absent good reason to retain them. Here Respondent retained its only part-time employee in the warehouse without persuasive reason, and has since employed him on a full-time basis. Respondent admits that it does not believe in seniority as a basis for personnel selection. In this instance, however, in order to present a plausible explanation for its selection of employees to be laid off, Respondent asserts that employ- ees were laid off in accordance with seniority. This has led to some anomolous results. Thus it is clear that Respon- dent had no intention of laying off Kilian, who had been assured just the previous day of his bright future with Re- spondent, including the likelihood of being made foreman of the warehouse. Nevertheless, he was the last employee hired, and so had to go if anyone was to be laid off. Fur- ther, when Respondent's manager was asked why Dunn, 753 hired after Deyo, was not laid off instead of Deyo, the manager replied that he had to have someone in the ware- house driving Respondent's truck.' As has been noted, Re- spondent is quite accustomed to transferring employees among its operations. Finally, Respondent's manager is shown to be quite hostile to the unionization of the em- ployees, to the point of asserting that he would close the place down, in apparent frustration over what the employ- ees had done to him in bringing the Union in. On the basis of the above, and the record as a whole, I am convinced and find that Respondent laid off Ronald L. Deyo and Dale L. Jetter because of their activities on be- half of and adherence to the Union, and included Kevin J. Kilian in that layoff in order to provide support of its as- serted justification for the layoff of the other two. There- fore, Respondent, by the layoff of Deyo, Jetter, and Kilian, discriminated in regard to the hire or tenure of employees to discourage membership in a labor organization in viola- tion of Section 8(a)(3) and (1) of the Act. I do not agree, as alleged in the complaint, that Manager Van Moorleghem violated the Act by promising Kilian, on April 7, future benefits to discourage Kilian's support for the Union. I see no connection between the manager's con- versation with Kilian on that occasion and Kilian's activi- ties on behalf of the Union. I shall recommend that this allegation of the complaint be dismissed. CONCLUSIONS OF LAW 1. The 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 indefinitely laying off Ronald L. Deyo, Dale L. Jetter, and Kevin J. Kilian, Respondent discriminated in regard to hire or tenure of employment of its employees, discouraging membership in and activities on behalf of la- bor organizations, and thereby engaged in unfair labor practices in violation of Section 8(a)(1) and (3) of the Act. 4. By coercively interrogating its employees with respect to union activities and threatening its employees that Respondent's operation would be closed because of their union activities, Respondent engaged in unfair labor prac- tices in violation of Section 8(a)(1) of the 'Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY It having been found that the Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) and (3) of the Act, it will be recommended that the Respondent cease and desist therefrom and take certain affirmative ac- tion designed to effectuate the policies of the Act. It having been found that Respondent unlawfully laid off Ronald L. Deyo, Dale L. Jetter, and Kevin J. Kilian, it will be recom- mended that Respondent offer` Deyo, Jetter, and Kilian 9 At the hearing Respondent indicated a different reason that Deyo and Dunn were in different departments and the layoffs were by departmental seniority I do not credit this. 754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD immediate and full reinstatement to their former jobs or, if such jobs no longer exist, to substantially equivalent jobs, without prejudice to their seniority and other rights, privi- leges, or other working conditions, and make them whole for any loss of earnings or benefits suffered by reason of such discrimination, by paying to each of them a sum of money equal to the amount each would have earned from the date of the discrimination against him, as found herein, to the date of Respondent's offer to reinstate him as afore- said, less his net earnings during that period, in accordance with the Board's formula as set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest thereon at the rate of 6 percent per annum, as set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Respondent has previously reinstated Jetter and Deyo, but not, to the sales positions which they occupied when they were laid off. The record is convincing that these sales positions were more desirable than the warehouse jobs to which they were reinstated. It was not shown that the sales positions had been abolished. Jetter and Deyo should be reinstated to the sales positions that they formerly occu- pied, with the benefits and privileges appertaining to those positions. I have given full consideration to the fact that Deyo _ testified that, after 1 day of such reinstatement by Respondent, he returned to his interim employer because of the manner of his reinstatement and because he thought his interim employment was better. But this does not serve to prove that Deyo would have returned to his interim em- ployment if Respondent had properly reinstated him in the first place. As the unfair labor practices committed by Respondent are of a character striking at the root of employee rights safeguarded by the Act, it will be recommended that the Respondent be ordered to cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act. See Brads Machine Products, Inc., 191 NLRB 274 (1971). Upon the foregoing findings of fact, conclusions of law, and the,entire record, and pursuant to Section 10(c) of the Act, I issue the following recommended: ORDER10 Respondent, United Electrical Supply Company, Inc., Omaha, Nebraska, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from: (a) Laying off, or otherwise discriminating against em- ployees in order to discourage membership in or support of Retail Clerks Union Local 1015, affiliated with Retail Clerks International Association AFL-CIO, or any other labor organization. (b) Threatening employees with closure of Respondent's operations, or other reprisal, for joining a labor organiza- tion or engaging in union activities or supporting a union. (c) Coercively interrogating employees concerning union membership or activities. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Offer Ronald L, Deyo, Dale L. Jetter, and Kevin J. Kilian immediate and full reinstatement to their former jobs or, if those lobs no longer exist, to substantially equiv- alent jobs, and make them whole for any loss of earnings or benefits they may have suffered by reason of the dis- crimination against them, in accordance with the provi- sions of the section entitled "The Remedy" above. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and-reports, and all records necessary to analyze the amount of backpay due under the terms of this recommended Order. (c) Post at its operations at Omaha, Nebraska, copies of the attached notice marked "Appendix." II Copies of said notice, on forms provided by the Regional Director for Region 17, after being duly signed by an authorized repre- sentative of Respondent, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, including all places where notices to employees are customarily post- ed. Reasonable steps shall be taken by Respondent to en- sure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 17, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that msofar ,as the complaint alleg- es any violation of the Act not found hereinabove in this Decision, the complaint to that extent be and it hereby is dismissed. 10 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. 11 In the event 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 NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT lay off employees or otherwise discrim- inate against our employees because they join or help Retail Clerks Union Local 1015, affiliated with Retail Clerks International Association AFL-CIO, or any other labor organization. WE WILL NOT threaten to close down our operations or otherwise harm our employees because they join or help a union. WE WILL NOT coercively interrogate our employees about union activities or membership. UNITED ELECTRICAL SUPPLY COMPANY 755 WE WILL NOT in any manner interfere with , restrain, or coerce our employees in the exercise of rights pro- tected by the law. WE WILL offer Ronald L. Deyo, Dale L. Jetter, and Kevin J. Kilian, immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent jobs, without prejudice to their seniority or other rights, privileges, or working conditions, and WE WILL make Ronald L. Deyo, Dale L. Jetter, and Kevin J. Kilian whole for any loss of pay or other benefits suffered by them as a result of the discrimina- tion against them. UNITED ELECTRICAL SUPPLY COMPANY, INC.