Somerset Tire Service, Inc.

174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Eagle Material Handling, Inc., a Subsidiary of Somer- set Tire Service, Inc., and Somerset Tire Service, Inc. and Local Union 825 and Branches A. B, C, D, International Union of Operating Engineers, AFL- CIO. Cases 22-CA-6680 and 22-CA-6825 December 9, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND PENELLO On August 6, 1976, Administrative Law Judge Herbert Silberman issued the attached Decision in this proceeding. Thereafter, Respondents filed excep- tions and a supporting brief and the General Counsel filed a reply 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. 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 Respondents, Eagle Material Handling, Inc., a Subsidiary of Somerset Tire Service, Inc., and Somerset Tire Service, Inc., Bound Brook, New Jersey, their officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. DECISION STATEMENT OF THE CASE HERBERT SILBERMAN , Admimstrative Law Judge: Upon a charge and an amended charge filed in Case 22-CA-6680 on November 11, 1975, and May 3, 1976, respectively, and a charge and amended charges filed in Case 22-CA-6825 on February 25, March 16, and May 3, 1976, respectively, by Local Union 825 and Branches A,B,C,D, International Union of Operating Engineers, AFL-CIO, herein called the Union, an order consolidating the above-numbered cases and a complaint therein was issued on May 4, 1976, alleging that the Respondents above named have engaged in and are engaging in unfair labor practices within the meaning of Section 8(a)(1), (3), (4), and (5) of the National Labor Relations Act, as amended. Respondents duly filed an answer to the complaint denying that they have engaged in the alleged unfair labor practices. A hearing in this 227 NLRB No. 39 proceeding was held in Newark, New Jersey, on May 24, 1976. At the hearing the complaint and the answer were in various respects amended. Following the close of the heanng, briefs were filed with the Administrative Law Judge on behalf of General Counsel and Respondents. Upon the entire record in the case, I make the following: FINDINGS OF FACT 1. THE BUSINESSES OF RESPONDENTS Somerset Tire Service, Inc., herein called Somerset, was incorporated in the State of New Jersey on February 20, 1958, and its wholly owned subsidiary, Eagle. Material Handling, Inc., herein called Eagle, was incorporated in the State of New Jersey on April 16, 1974. Somerset, which maintains its principal office and place of business at West Main Street, Bound Brook, New Jersey, is engaged at said location and at other locations in the State of New Jersey in the retail sale of motor vehicle tires and parts and in rendering services related thereto. In the conduct of its operations, Somerset's annual gross revenues are in excess of $500,000 and it receives goods valued in excess of $50,000 which are transported through channels of interstate commerce to its places of business in the State of New Jersey from other States of the United States. Eagle, whose principal office and place of business is at the same location as Somerset's is engaged in the purchase, sale, distribution, and servicing of forklift trucks and related products. In • the conduct of its business, Eagle annually sells products valued in excess of $50,000 which are shipped through channels of interstate commerce from its facility in the State of New Jersey directly to locations outside the State. The complaint alleges, Respondents admit, and I find that Somerset and Eagle each is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. However, the complaint alleges, but the answer denies, that Eagle and Somerset constitute a single integrated business- enterprise and are a single employer within the meaning of Section 2(2) of the Act. The annual reports by domestic corporations filed with the Office of the Secretary of State of New Jersey for the period ending December 31, 1975, show that Somerset and Eagle have identical boards of directors and that the same individuals are respectively president and secretary of both corporations and that Daniel A. Gillings is the treasurer of Eagle and the comptroller of Somerset. (The reports list no treasurer for Somerset and no comptroller for Eagle.) The only difference in officers between the two corporations is that John Kelty and William Eckert, who are on the boards of directors of both corporations, are listed as vice presidents of Somerset but are not listed as officers of Eagle. Eagle is the only franchise dealer for Allis-Chalmers forklift trucks in northern New Jersey and is principally engaged in the sale of such vehicles and in the service of the trucks it sells as well as other forklifts. Eagle was engaged in this business as a division of Somerset prior to its incorpo- ration on April 16, 1974. Thus, Dennis Laughlin and Joseph Parise were hired to work as forklift mechanics for Eagle in September 1973 before the Company was incorporated. EAGLE MATERIAL HANDLING They were then paid by checks issued by Somerset and the W-2 forms reflecting withholding tax information for the year -1973 list Somerset as their employer. Dennis Laughlin, who worked continuously for Eagle from September 1973 until he was laid off on February 20, 1976, testified that he understood he was working for the same employer during the entire period of his employment and that he never was advised to -the contrary. In addition, Laughlin testified without contradiction that as an employee of Eagle he received an employee's discount for purchases made at Somerset stores and was permitted to purchase shares of Somerset capital stock under Somerset's corporate stock option program. - Somerset stores advertise forklift trucks which Eagle sells as being a related endeavor. Laughlin testified without contradiction that from time to time he was instructed to deliver tires to Somerset stores, that during snow storms he was sent to Somerset stores to help mount snow tires, and that he obtained gasoline for the truck he operated for Eagle from a Somerset store. Also, during the 1975 drive to organize Eagle's mechanics, Jack Apgar, president of both Eagle and Somerset, distributed a campaign, letter to Eagle's employees which speaks of the "seventeen years of this Company's history," although Eagle then had been incorporated only 1 year, and generally refers to Eagle as if it were a part of Somerset.' The decisive inquiry is whether the relationship between Eagle and Somerset is such that , they function, to a substantial degree, as a single enterprise. The two Compa- nies have common directors and officers. The principal places of business of both are in the same building. The employees of Eagle are accorded some of the same benefits, including stock ownership, as are given the employees of Somerset. There is cooperation between the employees of the two Companies and the- business of Eagle, which originally was conducted as a division of Somerset, re- mained unchanged following the incorporation of Eagle. As the two operations are conducted largely as if they were one, by the same individuals who exercise common control over both, the Board may view them as a single employing enterprise.2 "[Plaper arrangements that do-not reflect the business realities" 3 should not be permitted to frustrate the effectuation of the purposes of the Act. I find, in agreement with General Counsel, that Eagle and Somerset constitute a single employer within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. t Thus, among other things, President Apgar refers to Eagle as "employee owned," although the employees of Eagle were able to purchase capital stock of Somerset but not of Eagle. 2 N.L.R B v Gibraltar Industries, Inc., & International Trailer Co, Inc., et. al., 307 F.2d 428, 431 (C.A. 4, 1962), cert. denied 372 U.S. 911 (1963). Accord : Radio & Television Broadcast Technicians Local Union 1264, International Brotherhood of Electrical Workers, AFL-CIO v. Broadcast Service of Mobile, Inc, 380 U.S. 255, 256 (1965), Sakrete of Northern III. THE UNFAIR LABOR PRACTICES 175 A. Background In 1975 the Union was engaged in a drive to organize Eagle's service mechanics. An election was held on Febru- ary 6, 1975, which was inconclusive because objections to the election and unfair labor practice charges against Eagle were filed by the Union. Thereafter, a complaint-was issued alleging violations of Section 8(a)(1) and (5) on the part of Eagle, and a hearing in the matter, consolidated with the hearing on the objections to the election, was held before Administrative Law Judge Benjamin B. Lipton on August 27, 1975. Among others, Vincent Salvatore, Robert Bylsma, Dennis Laughlin, and Joseph Parise testified as witnesses for General Counsel in that proceeding. Administrative Law Judge- Liptdn's Decision issued on October 31, 1975. In- substantial part his findings were adopted by the -Board in its Decision in the case on June 21, 1976.4 The Board found that Eagle committed separate violations of Section 8(a)(l) when, prior to the election, it solicited employee grievances and complaints, discharged an-unpopular super- visor in response to employee complaints, threatened to move unit equipment and work if the Union won the election, and promised employees additional benefits and a written guarantee of continued employment, all in order to discourage their support for the Union and when, following", the election, it implemented changes in employee benefits and working conditions in fulfillment of its unlawful preelection promises. The Board further found that the Union had obtained signed authorization cards from a majority of Eagle's employees on January 11, 1975; that the Union's majority was dissipated by Eagle's unlawful conduct which began on January 20 and continued through the election on February 6 and thereafter;, and that a bargaining order was warranted, to remedy Eagle's exten- sive and pervasive unfair labor practices in violation of Section 8(a)(l)" of the Act. The Board also decided that Eagle's bargaining obligation commenced on January 20 when Eagle embarked on its course of unlawful conduct which dissipated the Union's majority.5 The complaint in the instant cases alleges that in violation of Section 8(a)(1), (3), and (4) on October 27, 1975, Respondents suspended Vincent Salvatore for 1 day; on November 7, 1975, Respondents laid off Viccent Salvatore and Robert Bylsma; and on February 20, 1976, Respondents laid off Dennis Laughlin and Joseph Parise because they had engaged in activities in support of the Union and because they gave testimony under the Act. The complaint further alleges that the described layoffs, which totally eliminated all the employees in the unit affected by the Board's bargaining order in the prior case, together with subcontracting work formerly performed by these mechan- ics and transferring work previously done by them to- other employees constituted unilateral changes in terms and California, Inc., 140 NLRB 765 (1963), enfd. 332 F.2d 902 (C.A. 9, 1964), cert. denied 379 U.S. 961 (1965). 3 N.L.R.B. v. DeenaArtware, Inc., 361 U.S.398,403 (1960). 4 Eagle Material Handling of New Jersey, 224 NLRB 1529(1976). 5 The Board, reversing Administrative Law Judge Lipton, held that Eagle had not violated Sec. 8(a)(5) of the Act for the reason that the Union had made no demand on Eagle for recognition or bargaining. 176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conditions of employment in violation of Section 8(a)(5) and (1). B. Suspension of Salvatore On October 20, 1975, Vincent Salvatore, a service mechanic, was suspended for I day by General Manager Milton Mostoc for having locked himself out of his truck on October 13. Salvatore, as well as mechanics Dennis Laughlin, Joseph Parise, and Robert Bylsma, testified that the door handles on the trucks which they used were defective, that they had difficulty unlocking the doors, and that they had complained to Mostoc and Office Manager Marinelli about the matter. Mostoc testified that contrary to instructions Salvatore had left the motor running when he descended from his truck, had permitted the door to lock shut, and then did not have enough initiative to get a coathanger and open the door, so that the Company had to send out another employee to open the door for Salvatore. According to Mostoc, it was for these reasons that he suspended Salvatore for I day. As Mostoc's explanation for his action is not unreasonable and as there appears to be no connection between Salvatore's suspension and his activi- ties in support of the Union, I shall recommend that the allegations in the complaint that Salvatore's 1-day suspen- sion on October 20 constituted a violation of Section 8(a)(1), (3), and (4) be dismissed. C. The Layoffs As of June 1975 Respondents employed six service mechanics. Two voluntarily resigned and were not re- placed . They were Carl Booth who left the Company's employ in June 1975 and Gilbert St. Mane who left his position with the Company in August 1975. Robert Bylsma, who was hired as a forklift mechanic in September 1974, and Vincent Salvatore, whose date of hire is not given, were both laid off on November 7, 1975, and have not been recalled . Salvatore testified that he and Bylsma were laid off at the same time by Milton Mostoc, who, when asked for an explanation, stated that "it was for economic reasons." Dennis Laughlin, who was present when Salvatore and Bylsma were laid off, testified that "we questioned [Mostoc about] the reasons for the layoff, and he said that it was for economic reasons , and we dust questioned if we were so busy, you know , why they had to lay the men off, and he dust said economic reasons, that's it." Joseph Parise who was also present testified, "I made a remark to [Mostoc], how could he justify a layoff [of Salvatore and Bylsma] with the amount of work in the shop and the preventive maintenance contract on the road that we were already behind on, what would we use for manpower to catch up? . . . His remark to me was that, `I didn't say that we were not busy' and he left it there, as far as I can remember." Bylsma testified that he asked Mostoc "for a definition of economic reasons, because I didn't understand that, being that there was so much work in the shop and the only answer I was given was it was not because of lack of work." No replacements were hired for Salvatore and Bylsma, but to demonstrate the absence of economic justification for these layoffs the following was adduced by General Counsel: Dennis Laughlin testified: 1. In October 1975 Office Manager Marinelli informed him that the Company would no longer accept repair work for forklifts other than Allis-Chalmers equipment. 2. On November 7, the same day as the layoffs occurred, he went on vacation and at that time there were 6 to 8 forklifts in the shop for repair and there were 6 to 10 service calls to be made. No basis was given by Laughlin for his testimony regarding the service calls other than that number of service calls were customarily made each day. 3. After November 7 he observed two Somerset em- ployees do some repairs that formerly had been performed by Eagle's service mechanics.6 4. In October 1975 a repair job was subcontracted to P.A.R., an independent forklift truck dealer. However, Mostoc testified that this was the only job the Company had subcontracted and it was done only because it required overtime work, which Eagle's mechanics refused to do, in order to meet the customer's needs.? Joseph Parise testified that after November 11, 1975, he no longer did preventive maintenance work for customers of Eagle. Without giving the basis for his assertion, Parise also testified that prior to November 7 Eagle had about a dozen preventive maintenance contracts which covered between 50 to 60 forklifts. On February 20, 1976, Dennis Laughlin and Joseph Parise, the only two service mechanics then working for Eagle, were laid off. They were told by Office Manager Rocco Marinelli that the layoff was for economic reasons and that they would be recalled when there should be a need for their services. Laughlin and Parise testified that at the time of their layoff there were at least four repair jobs in the shop, plus dealer preparation and warranty work on Allis-Chalmers forklifts sold by Eagle. With the layoffs of Laughlin and Parise, Eagle no longer employed any service mechanics and effectively had discontinued its service repair business. Milton Mostoc, the only witness for Respondents, whose employment with the Company dates only from February 1975, testified in effect that the service mechanics were laid off because of a decline in business and that for the same reason Eagle as of February 20, 1976, discontinued all service and repair of forklifts. Mostoc's testimony was given entirely from memory. His testimony for the most part consisted of broad generalizations with no record support for his assertions. As a consequence, at the hearing, the Administrative Law Judge directed counsel's attention to the fact that in large part this case turns on whether or not there was a decline in maintenance work to the point that from February 20, 1976, to date there was none at all, that these are matters that company records would tend to 6 Vincent Salvatore testified that he was at the Company's premises the reason given to him by Marinelli as the explanation for subcontracting the week after his layoff and observed a Somerset employee doing repair work job to P A R Laughlin also testified that between October 1975 and on forklifts February 20, 1976, P.A R performed two other jobs for Eagle . However, no r Mostoc was corroborated by Bylsma who testified that that was the basis for this assertion appears in the record EAGLE MATERIAL HANDLING 177 establish one way or -another, and that neither side has sought to- produce such records. - Mostoc testified that the business of the forklift industry fell 60 to 65 percent in 1975 compared to 1974 and that between February 1975 and February 1976 Respondents lost more-than $150,000 before taxes. However, Mostoc did not furnish any information as to the extent that the service and repair portion of Respondents' business had declined during 'this, period .8 With respect to the layoffs Mostoc explained that two mechanics voluntarily quit prior to August 1975 and were not replaced. Further, according to Mostoc, "[i]n October, I believe it-was, we-cut back again two-people for economicreasons. We had the business-the business was going down and I'll refer to figures a little later-. [Such figures were not later given.] They were all apprised of the fact that we were losing money and that unless things turned around, we, would get to the point where we would have to do whatever we had to do to turn it around, and I think that the next step was in February when things got to bad that we had to cut back completely for reasons, -customer complaints, they didn't want our service because of the service people going out, and" informing customers that Eagle was going out of business.9 No adequate explanation was given by Mostoc as to why repair and service' work was completely abandoned. He produced- no figures to show that Respondents were losing money on such work. On the other hand, Respondents seem to have taken measures to avoid service or repair work. No earlier than September 197510 the Respondents adopted the practice of reducing substantially the price of new vehicles- and delivering such vehicles without dealer preparation work and without the manufacturer's warran- ty.11 Similarly, customers who rent units from Respondents are responsible for the repair and maintenance of such vehicles but in consideration pay a reduced rental. ` Mostoc also acknowledged that in mid-1975 the Compa- ny decided'to limit its service operations to Allis-Chalmers forklifts. His explanation was that the mechanics were not qualified to do such work. In noway did Mostoc elaborate upon this assertion or explain why the mechanics who had been doing such work -for a substanital period of time suddenly had lost their competency. On the other hand, each of the four mechanics involved in this case testified to long experience repairing and maintaining forklifts of other manufacturers. I find Milton Mostoc's completely uncorroborated expla- nation for Respondents'- abandonment of service and repair 8 It is conceivable that a decline in the sale of new forklifts might be paralleled by an increase in service work because business concerns, as a matter of economy, might decode to repair old equipment rather than replace it with new equipment. - 9 The mechanics who allegedly made such statements were not named by Mostoc. Further, Mostoc averred that "we have a letter stating that a certain individual mechanic . . . went in there and told them we were going out of business, this was in November " However, the letter was not produced. 10 Note should be taken that the Decision of Administrative Law Judge Benjamin B. Lipton in the prior case reported at 224 NLRB 1529 was issued on October 31, 1975, and the first layoffs of mechanics were effected I week later,onNovembee7, 1975. 11 The Company is reimbursed to the extent of 80 percent by Allis- Chalmers for warranty work on forklifts sold by Respondents. Mostoc did not testify that customers who accepted delivery of forklifts from Respon- dents without the warranty were entitled to the benefit of the 80-percent reimbursement Accordingly, it would appear that in order to avoid warranty work on forklifts to be without substance, incredible, and specious. D. Conclusions Respondents opposed the organization of their service mechanics and engaged in "extensive' and pervasive unfair labor practices," including a threat to move equipment and work if the Union should win the election, to prevent the Union from gaining representational status. Initially, Res- pondents appear to have succeeded in their purpose as the Union failed to obtain a majority of the votes cast in the election held on February 6, 1975. However, objections were filed to the election, unfair labor practice charges were filed against Eagle, and after a hearing in the consolidated proceeding Administrative Law Judge Lipton on October 31, 1975, issued a Decision directing Eagle to bargain with the Union as the representative of its service mechanics. No collective bargaining occurred, but Eagle filed exceptions to Administrative Law Judge Lipton's Decision. Before, the -Board could decide the matter, Respondents, on November 7, 1 week after the date of Administrative Law Judge Lipton's Decision, laid off two of its four mechanics and 3 months later, on February 20, 1976, laid off the remaining two service mechanics, and thus effectively eliminated the unit for which Eagle was directed to bargain. Respondents assert that there was a valid economic reason for the layoffs. I have found the proof offered- in support of this assertion inadequate and .the unsupported testimony of Respondents' single witness at the hearing, Milton Mostoc, incredible and specious. In the circumstances, the.conclu- sion is warranted, and I so find, that Respondents laid off their four service mechanics in order to avoid bargaining with the Union as their representative. Such conduct constitutes a classic violation of Section 8(a)(3) and (1) and I so find.12 The appropriate remedy for, such violations of the Act is to reinstate the laid-off employees with backpay. If there were economic reasons for the layoff of some employees for some length of time after November 7, 1975, no adequate proof of such economic need was adduced at .the hearing. To, the extent that -the effect of the Order recommended herein may require Respondents to resume operations that they have discontinued, such remedy is necessary in order to "return the parties to -a -status' quo ante,"13 and is proper as it does not appear-that such work Respondents are reducing the sale price of forklifts by a substantially greater amounts than the net cost to Respondents of warranty work on such vehicles. - 12 N. C Coastal Motor Lines, Inc.; 219 NLRB 1009 (1975); Manley Transfer Co., Inc and Kansas Deli very Service, Inc. v N L. R. B, 390 F.2d 777, 782 (C.A. 8, 1968); General Teamsters, Chauffeurs and Helpers, Local Union No. 782, International Brotherhood of T'e'amsters, Chauffeurs, Warehousemen and Helpers of America [Blue Cab Company and-Village Cab Company] v. N. L. RB., 373 F.2d 661 (C.A.D.C., 1967), cert. denied 389 U.S. 837; Town & Country Mf& Co., Inc., and Town & Country Sales Co., Inc v. N.L R B, 316 F.2d 846, 847 (C.A. 5, 1963); N L.R B v. Goya Foods, Inc, (Unanue & Sons, Inc.), 303 F.2d' 442 (C.A. 2, 1962), cert. denied 371 U.S. 911; N.`L.RB. v Brown-DunkinCompany, Inc., 287 F.2d 17,19-21 (C.A. 10, 1961). 13 N.L.R.B. v. Mastro Plastics Corporation and French American Reeds Manufacturing Company, 354 F.2d 170, 181 (C.A. 2, 1965), cert. dfnied.384 U.S.972(1966). 1 - - 178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD remedial order is economically prohibitive or unduly harsh. 14 In the Decision in the prior case, reported at 224 NLRB 1529, the Board decided in agreement with Administrative Law Judge Lipton that Respondents' bargaining obliga- tions commenced as of January 20, 1975. Accordingly, refusals on the part of Respondents to discharge their collective-bargaining duties after such date constitute violations of Section 8(a)(5) and (1).15 Such infringements occurred when Respondents laid off their service mechan- ics without notice to the Union and without affording the Union a meaningful opportunity to discuss and to negotiate about the matter.16 The law is well settled that an employer must notify the bargaining representative prior to taking action regarding the layoff of employees, even if the layoffs are for economic. reasons.17 Accordingly, I find that Respondents thereby also have violated Section 8(a)(5) and (1) of the Act. 18 I find General Counsel has not established any connec- tion between the layoffs and the fact that the laid-off employees had testified in the earlier case. I shall therefore recommend dismissal of the 8(a)(4) allegations of the complaint. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondents set forth in section III, above, occurring in connection with their operations described in section I, above, have a close, intimate, and substantial relationship 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 Respondents have engaged in certain unfair labor practices, I shall recommend that they cease and desist therefrom and that they take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondents unlawfully laid off employees Vincent Salvatore and Robert Bylsma on November 7, 1975, and employees Dennis Laughlin and Joseph Parise on February 20, 1976, 1 shall recommend that Respondents offer each of them immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority and other rights and privileges, 14 See Fibreboard Paper Products Corp v NLRB , 379 U S 203, 215-216 (1964), N L R B. v Jackson Farmers, Inc., 457 F.2d 516.518 (C.A 10, 1972), Manley Transfer Co, Inc v. N.LR B, supra, 390 F 2d at 782, Alton-Arlan's Dept. Store, Inc, 150 NLRB 1303, 1305 (1965) 15 It is immaterial that the formalization of such collective-bargaining obligation first by the Decision of Judge Lipton and then by the Decision and Order of the Board did not occur until sometime after the date upon which the collective-bargaining obligations accrued See King Radio Corpora- tion, Inc v N LR B., 398 F.2d 14, 17 (C A. 10, 1968), N LR B v Laney & Duke Storage Warehouse Co, Inc and Laney & Duke Terminal Warehouse Co., Inc, 369 F.2d 859, 866 (C.A. 5, 1966); General Electric Company, Battery Products, Capacitor Department v N L R B, 400 F.2d 713, 718 (C A 5, 1968), cert. denied 394 U.S 904 (1969), George Webel d/b/a Webel Feed Mills & Pike Transit Company, 217 NLRB 815 (1975) 16 Arnold Graphics Industries, Inc v. N L R B, 505 F 2d 257,260 (C A 6, and make him whole for any loss of earnings he may have suffered by reason of the discrimination against him by payment to him of a sum of money equal to that which he normally would have earned from the aforesaid date of his layoff to the date of Respondents ' offer of reinstatement, less his net earnings during such period . The backpay provided for herein shall be computed on the basis of calendar quarters, in accordance with the method pre- scribed in F. W. Woolworth Company, 90 NLRB 289 (1950). Interest at the rate of 6 percent per annum shall be added to such net backpay and shall be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Respondents' unlawful activities , including their discrim- matory layoff of four employees, go to the very heart of the Act and indicate a purpose to defeat the self-organization of their employees . The unfair labor practices committed by Respondents are potentially related to other unfair labor practices proscribed by the Act, and the danger of their commission in the future is to be anticipated from Respon- dents' conduct in the past . The preventive purposes of the Act will be thwarted unless the recommended Order herein is coextensive with the threat. Accordingly, in order to make effective the interdependent guarantees of Section 7 and thus effectuate the policies of the Act, an order requiring Respondents to cease and desist from in any other manner infringing upon the rights of employees guaranteed in the Act is deemed necessary. N. L. R B. v. Express Publishing Company, 312 U.S. 426 (1941); N.L.RB. v. Entwistle Mfg. Co., 120 F.2d. 532 (C.A. 4, 1941). Upon the basis of the foregoing findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. By failing to notify the Union in advance and by failing to afford the Union an opportunity to bargain collectively concerning the layoff of Respondents' service mechanics and by discriminatorily laying off Vincent Salvatore and Robert Bylsma on November 7, 1975, and Dennis Laughlin and Joseph Parise on February 20, 1976, thereby discouraging membership in the Union, Respon- dents have engaged in and are engaging in unfair labor practices within the meaning of Section 8(a)(3) and (5) of the Act. 2. By the foregoing conduct Respondents have inter- fered with, restrained, and coerced their employees in the exercise of the rights guaranteed in Section 7 of the Act and thereby have engaged in and are engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 1974); Teamsters Local Union No 328, affiliated with International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America iWtttock Supply Company] v NLRB . 419 F.2d 688,689 (C A D C, 1969), N L R. B v Exchange Parts Co, Rebuilders Service Company, and Southwest Shoe Exchange Co, 339 F.2d 829,831 (C A 5, 1965) 11 N.LR.B v Frontier Homes Corporation, 371 F 2d 974 (C A. 8, 1967), N LR B v. United Nuclear Corp., 381 F.2d 972 (C.A. 10, 1%7), LT.T Semi- Conductors, Inc, 165 NLRB 716 (1967) i8 As the Respondents' violations of Sec. 8(a)(5) and (1) support a reinstatement and backpay order and a direction to cease and desist from taking unilateral actions, which remedies are not included in the Board's Decision and Order in the prior case reported at 224 NLRB 1529 (1976), the principle enunciated in Canton Sign Co, 186 NLRB 237 (1970), is not apposite EAGLE MATERIAL HANDLING 1-79 3. 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 basis,of the foregoing findings of fact, conclu- sions of law, and the entire record in this proceeding, and pursuant to Section 10(c) of the Act,' I hereby issue the following recommended: ORDER 19 Respondents, Eagle Material Handling, Inc., a subsidiary of Somerset Tire Service, Inc., and Somerset Tire Service, Inc., Bound Brook, New Jersey, their officers, agents, successors, and assigns, shall: 1. Cease and-desist from: (a) Laying off or otherwise discriminating against em- ployees in regard to their hire, tenure of employment, or other terms and conditions of their employment in order to discourage membership in Local Union 825 and Branches A,B,C,D, International Union of Operating Engineers, AFL-CIO, or any other labor organization. (b) Laying off service mechanics without notice to the Union as their collective-bargaining representative and without affording the Union an opportunity to bargain collectively about such matter or by unilaterally changing conditions of employment of their service mechanics without first bargaining thereon with the Union. (c) Refusing to bargain collectively, upon request, with Local Union 825 and Branches A,B,C,D, International Union of Operating Engineers, AFL-CIO, as the exclusive collective-bargaining representative of all employees in the below-described appropriate collective-bargaining unit: All inside and outside service mechanics, service mechanic's helpers and service mechanic trainees at Respondents' Bound Brook, New Jersey, facility ex- cluding all office clerical employees, professional em- ployees, guards, and supervisors as defined in the Act, and all other employees. (d) In any other manner interfering with, restraining, or coercing their employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Offer Vincent Salvatore, Robert Bylsma, Dennis Laughlin, and Joseph Parise immediate and full reinstate- ment to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority and other rights and privileges, and make each of them whole for any loss of earnings he may have suffered by reason of Respondents' unlawful discrimination against him 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 amounts of backpay due under the terms of this recommended Order. (c) Upon request, bargain collectively with Local Union 825 and Branches A,B,C,D, International Union of Operat- ing Engineers, AFL-CIO, as the exclusive collective-bar- gaining representative of their employees in the appropriate unit described above with respect Ito rates of pay, wages, hours ;of employment, and other -terms and conditions of employment, and embody in a signed agreement any understanding reached. (d) Post at their place of business in Bound Brook, New Jersey, copies of the attached notice marked "Appendix." 20 Copies of said notice, on forms provided by the, Regional Director for Region 22, after being duly signed by-Respon- dents' representative, shall be posted by them immediately upon receipt thereof, and be maintained by them 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 Respondents to insure that said notices are not altered, defaced, or covered by any other material. - (e) Notify the Regional Director for Region 22, in writing, within 20 days from the date of this Order, what steps Respondents have taken to comply herewith. IT IS FURTHER ORDERED that the allegations in the complaint of violations of Section 8(a)(4) and violations stemming from the 1-day suspension of Vincent Salvatore on October 20, 1975, be dismissed. 19 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. 20 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted 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 or otherwise discriminate against any employees in regard to their hire, tenure of employment, or any term or condition of their employ- ment in order to discourage membership in Local Union 825 and Branches A,B,C,D, International Union of Operating Engineers, AFL-CIO, or any other labor organization. WE WILL NOT lay off employees in the collective- bargaining unit described below without first giving notice to the above-named Union as their collective- bargaining representative and without affording such Union an opportunity to bargain collectively with us about such matter and WE WILL NOT unilaterally change any conditions of employment of the employees in said collective-bargaining unit without first bargaining thereon with said Union. WE WILL NOT refuse to bargain collectively with the above-named Union as the exclusive collective-bargain- ing representative of our employees in the appropriate unit described below. 180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through represen- tatives of their own choosing, and to engage in other concerted activities for the purpose of collective bar- gaining or other mutual aid or protection, or to refrain from any or all such activities. WE WILL, upon request, recognize and bargain collectively with Local Union 825 and Branches A,B,C,D, International Union of Operating Engineers, AFL-CIO, as the exclusive collective -bargaining repre- sentative of our employees in the appropriate unit composed of all inside and outside service mechanics, service mechanic's helpers and service mechanic train- ees at our Bound Brook , New Jersey, facility, exclud- ing all office clerical employees, professional employ- ees, guards, supervisors as defined in the Act, and all other employees, regarding their rates of pay, wages, hours of employment, and other terms and conditions of employment; and, if an understanding is reached, WE WILL embody the same in a signed contract. WE WILL offer Vincent Salvatore, Robert Bylsma, Dennis Laughlin , and Joseph Parse immediate and full reinstatement to their former jobs or, if such jobs no longer exist, to substantially equivalent positions, with- out prejudice to their seniority and other rights and privileges, and WE WILL make each of them whole for any loss of earnings he may have suffered by reason of our unlawful discrimination against him. EAGLE MATERIAL HANDLING INC., A SUBSIDIARY OF SOMERSET TIRE SERVICE, INC., AND SOMERSET TIRE SERVICE, INC.