Kasper Disposal Service & Joe'S Disposal Service

14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Kasper Disposal Service & Joe's Disposal Service and Teamsters Local 945 a/w International Brotherhood of Teamsters, Chauffeurs, Ware- housemen, & Helpers of America. Cases 22- CA-14371 and 22-RC-9594 30 September 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On 15 April 1987 Administrative Law Judge Raymond P. Green issued the attached decision. The Respondent filed exceptions and a supporting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings, I and conclusions as modified, to modify his remedy, 2 and to adopt the recommended Order as modified.3 We agree, for the reasons stated by the judge, that the Respondent violated Section 8(a)(3) of the Act by discharging Sandra Lepoidevin.4 Further, we agree with the judge that the Respondent vio- lated Section 8(a)(1) of the Act by refusing to i The Respondent has excepted to some of the judge's credibility find- ings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings. 2 In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after 1 January 1987 shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U S C § 6621 Interest on amounts accrued prior to 1 January 1987 (the effective date of the 1986 amendment to 26 U.S C. § 6621) shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977) 2 We do not adopt the judge's inclusion of a visitatonal clause in his recommended Order, authorizing the Board , for compliance purposes, to obtain discovery from the Respondent under the Federal Rules of Civil Procedure under the supervision of the United States court of appeals en- forcing this Order In the circumstances of this case, we find such a re- medial provision unnecessary and we have modified the Order according- ly * We shall leave to the compliance stage the determination of what effect, if any, the reversion of ownership of Joe's Disposal Service to Joseph and Sandra Lepoidevin has on the backpay liability of Kasper Disposal Service to Sandra Lepoidevin allow Sandra Lepoidevin5 to vote in the election6 and that this conduct constituted grounds for set- ting aside the election conducted on 16 May 1986. We disagree, however, with the judge's recommen- dation that a new election be conducted. After the election, the installment contract for the sale of Joe's Disposal Service was breached, and the ownership of Joe's Disposal Service revert- ed to Joseph and Sandra Lepoidevin. There admit- tedly is no longer any business relationship be- tween Joe's Disposal Service and Kasper Disposal Service. Under these circumstances, we find that the Respondent is no longer a single employer for the purposes of collective bargaining. As the scope of the petitioned-for unit in Case 22-RC-9594 was predicated on the Respondent's being a single em- ployer, our finding renders such a unit inappropri- ate, and we shall therefore modify the judge's rec- ommended Order to dismiss the petition. See Laerco Transportation, 269 NLRB 324, 326 (1984).' ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Kasper Disposal Service, Annandale, New Jersey, its officers, agents, successors, and as- signs, shall take the action set forth in the Order as modified. 1. Insert the following as paragraph 1(c) and re- letter the subsequent paragraph accordingly. "(c) Interfering with the right of employees to vote in the election." S We reject the Respondent 's contention in its exceptions that Sandra Lepoidevin was not an eligible voter at the time of the election by virtue of her status as part-owner of Joe's Disposal Service Although Lepoide- vin and her husband received monthly payments of $1600 pursuant to an installment contract with Kasper Disposal Service for the purchase of Joe's Disposal Service , it is undisputed that Sandra Lepoidevin was em- ployed by the Respondent as a full -time truckdriver and did not partici- pate in any way in management affairs Moreover, at the time of the elec- tion an unfair labor practice charge was pending alleging that her dis- charge on 4 April 1986 was violative of Sec 8(a)(3) and (1) of the Act Under these circumstances , we find that Sandra Lepoidevin was at all relevant times an employee of the Respondent within the meaning of the Act and was therefore entitl ed to vote in the election 6 The judge inadvertently faded to order the Respondent to cease and desist from interfering with the right of employees to vote in the election We shall therefore modify the Order to include this remedy The judge arguably found that by refusing to allow Lepoidevin to par- ticipate in the election the Respondent committed an additional violation of Sec 8(a)(1) by interfering with her right to serve as the Union's ob- server Because the General Counsel did not allege in the complaint a violation with respect to Lepoidevin's inability to serve as the Union's observer, we decline to find such a violation ° Member Babson sees no need to sua sponte dismiss the election peti- tion Instead, he would remand the representation proceeding to the Re- gional Director for a determination of whether the Union has an ade- quate showing of interest to proceed to an election in an appropriate unit, should the Union wish to proceed in this matter, in light of the fact that the Respondent is no longer a single employer for the purposes of collec- tive bargaining See generally H & W Motor Express, 271 NLRB 466 (1984), Atlanta Hilton & Towers, 275 NLRB 1413 (1985) 286 NLRB No. 3 KASPER DISPOSAL SERVICE 2. Substitute the following for paragraph 2(e). "(e) Notify the Regional Director within 20 days from the date of this Order what steps the Re- spondent has taken to comply." 3. Substitute the attached notice for that of the administrative law judge. IT IS FURTHER ORDERED that the election con- ducted on 16 May 1986 in Case 22-RC-9594 be set aside and that the petition be dismissed. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT threaten to close our business if our employees select Teamsters Local 945 a/w International Brotherhood of Teamsters, Chauf- feurs, Warehousemen & Helpers of America, or any other labor organization. WE WILL NOT discharge or threaten employees with discharge because of our employees' union ac- tivities or other protected concerted activities. WE WILL NOT interfere with the right of em- ployees to vote in the election. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL offer reinstatement to Sandra Lepoide- vin and make her whole, with interest, for any loss of earnings she may have suffered because of our discharge of her on 4 April 1986. WE WILL remove from our files any reference to the unlawful discharge of Sandra Lepoidevin and notify her in writing that this has been done and that the discharge will not be used against her in any way. KASPER DISPOSAL SERVICE Thomas Gibons, Esq., for the General Counsel. 15 Robert J. Bennot, Esq. (Thatcher & Lanza), of Fleming- ton, New Jersey, for the Respondent. Ira Drogin, Esq. (Leaf Stern, Klan & Drogin), of New York, New York, for the Charging Party. DECISION STATEMENT OF THE CASE RAYMOND P. GREEN, Administrative Law Judge. These consolidated cases were heard by me in Newark, New Jersey, in December 1986. The Union filed a petition in Case 22-RC-9594 on 25 March 1986 seeking an election for certain of the Com- pany's employees. On 16 April 1986 the parties executed a Stipulation for Certification Upon Consent Election, which was approved by the Regional Director for Region 22 on 22 April 1986. Pursuant to that stipulation an election was conducted on 16 May in a unit including all drivers, helpers, mechanics, and yardmen employed by the Employer at its Annandale, New Jersey location during the payroll period ending 17 April 1986, but ex- cluding all office clerical employees, professional em- ployees, managerial employees, guards and supervisors as defined in Act. The tally of ballots showed that there were four votes for the Union, nine votes against the Union, and five challenged ballots. i On 21 May the Union filed objections to the election. These alleged as follows: The election was conducted under an atmosphere of fear, coercion and intimidation of-employees and voters preventing a fair secret ballot election based in part upon error and lack of control and supervi- sion by the Board Agent and in part by uncorrected acts and activities of Gus Kaspar, a supervisor in that: 1. Gus Kaspar, in the presence of the Board Agent and eligible voters refused to allow Sandy Lepoidevin to act as a Union observer and threat- ened her with arrest, if she did not leave the prem- ises where the election was being conducted. 2. Gus Kaspar did further refuse to allow Sandy Lepoidevin to vote in the election by threatening her with arrest if she did not immediately remove herself from his property As a result, she was re- quired to leave the premises without voting. 3. Gus Kaspar summoned the Clinton Township police to arrest Sandy Lepoidevin who came to the premises for that purpose and who remained at the premises visibly conversing with Gus Kaspar during the election further chilling and intimidating voters by their presence. 4. That the acts described in 1-3 were done in the presence of and/or came to the knowledge of eligible voters who were chilled and intimidated in the exercise of their rights. 5. That the election was conducted in a garage whose doors were allowed to be open during voting and that Gus Kaspar stationed himself ' The challenged ballots were not sufficient in number to affect the re- sults of the election 16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD during a good part of the election approximately 5- 6 feet from the entrance to the voting area and did attempt to influence workers and to interfere with their attempt to vote and their right to vote in secret. The Board Agent either made no attempt to discover or correct Kaspar's wrongful presence and wrongful activities. 6. That Kaspar's attorney "Bruno" assisted Kaspar in his activites with regard to Sandy Lepoi- devin and stationed himself in an office approxi- mately 10 feet away from the voting area where he could observe the voting and where voters could see that they were being observed voting and that Gus Kaspar also stationed himself in that office at times during the election where his observable pres- ence intimidated voters. 7. That the Union observer, Sandy Lepoidevin, as a result of being ejected from the premises was unable to challenge the votes of two non workers, Mark Connelly and Jesse McPherson and three su- pervisors, Russell Kaspar, Danny Kaspar and Clar- ence Hummer, who it is believed, improperly voted in the election. 8. That the Board Agent allowed a challenged ballot voted by an ineligible family member to be placed into the ballot box without it first being placed in an envelope and set aside and marked as a challenged ballot. 9. That numerous eligible voters learned of the objectionable conduct of the election and were in- timidated by Gus Kaspar so that a fair and secret ballot election was not conducted. The charge in Case 22-CA-12371 was filed on 8 April 1986 and was amended on 30 May 1986. Thereafter on 25 June 1986 the Regional Director issued an order con- solidating cases (22-CA-14371 with 22-RC-9594) and a complaint. This alleged in substance: 1. That on various dates in March, April, and May 1986 the Employer by Gustav Kasper threatened its em- ployees with the plant closure and discharge if they se- lected the Union as their bargaining representative. 2. That on 4 April 1986 the employer discharged Sandy Lepoidevin because of her activities on behalf of the Union. 3. That on 16 May 1986 the Employer threatened to arrest Sandy Lepoidevin (who had been designated by the Union as its observer at the election), and refused to permit her to vote in the election. Also on 25 June 1986 the Regional Director issued a Report on Objections where he ordered that a hearing be held on the Union's objections described above. Based on the record as a whole, including my observa- tion of the demeanor of the witnesses, and after consider- ation of the briefs filed, I make the following FINDINGS AND CONCLUSIONS I. JURISDICTION The Stipulation for Certification Upon Consent Elec- tion, in pertinent part states as follows: 8. COMMERCE-The Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the National Labor Relations Act, and a ques- tion affecting commerce has arisen concerning the representation of employees within the meaning of Section 9(c). The employer, Kasper Disposal Service and Joe's Disposal service are sole proprietorships sharing common ownership, management, supervision, con- trol of labor relations, and facilities, and its employ- ees share common terms and conditions of employ- ment and, as a result is a single employer for the purposes of collective-bargaining. The Employer is engaged in providing solid waste collection and dis- posal services to residential and commercial custom- ers from its Annandale, New Jersey location, the only facility involved herein. During the preceding twelve months, the Employer provided said serv- ices valued in excess of $50,000 directly to custom- ers located within the State of New Jersey over which the National Labor Relations Board would assert jurisdiction on a basis other than indirect. Based on the above, I conclude that the Respondents are employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.2 I also conclude based on the aforesaid stipulation that the Union is a labor organization within the meaning of Section 2(5) of the Act.3 B. Events Prior to the Election Kasper Disposal Service, owned by Gustav Kasper, is engaged in the business of providing "solid waste collec- tion and disposal services" to various commercial, public, and residential customers. Joe's Disposal Service, prior to 1984, was a similar type of enterprise by Joseph Le- poidevin. From June 1983 Joseph's wife, Sandra Lepoi- devin worked for both companies, each on a part-time basis. On 1 January 1984 the Lepoidevins and Gustav Kasper entered into a contract whereby Kasper agreed to acquire at some future date Joe's Disposal Service. It also was agreed that Joseph and Sandra Lepoidevin would become full-time employees of Kasper Disposal Service. Additionally, Kasper agreed to pay both Lepoi- devins $1600 per month each over 60 months for the ac- quisition of their business. This was in addition to their compensation as employees of Kasper Disposal Service. In describing his general working relationship with Sandra Lepoidevin over the period of her employment, Kasper testified- 2 Pursuant to the Stipulation for Certification Upon Consent Election, the Employer conceded facts on which the Board could exercise its dis- cretionary jurisdictional standards Because of the facts conceded in the stipulation, I conclude that the Employer meets the Board's indirect out- flow standard notwithstanding the Employer's denial of the jurisdictional allegations in the unfair labor practice complaint Academy of Art College, 241 NLRB 839, 840 (1979), Pollack Electric Co, 214 NLRB 970 fn. 4 (1974) 2 I also note that the Board in previous cases has concluded that the Union here is Teamsters Local 945 (Newark Disposal Service), 232 NLRB 1 (1977) KASPER DISPOSAL SERVICE Q. Did you have problems with her? A. Yes and no, I mean, you know, I can't say anything-she did get the machine from here to there and back. I'm not going to say exceptionally good, I'm not going to say bad. I can't argue about it. She got our equipment from here to there and from there back and never had a great [sic] of prob- lems on any given day. She did have two, one or two, I forget which it was ah, accidents of negli- gence. Nothing was ever said to her about it. Just wrote it off, figured it would never happen again. She was moody, therefore you would have to yell at her; and that would make her all the bitchier during that day and then she wouldn't do anything for you. And the next day she'd come in and she'd be the sweetest person that had ever lived. She'd do anything for you. In late February or early March 1986 Sandra Lepoide- vin contacted the Union and began soliciting other em- ployees to sign union authorization cards. As to Kasper's knowledge of union activities, he testified that he became aware of the organizing drive as soon as it started. He also conceded that he was aware of Sandra Lepoidevin's role in it. In this respect he testified that he heard of her union activities from certain of the helpers that did not want to go along with the Union. There is also little doubt as to Kasper's feelings that unionization of his company would be disasterous to him. In this regard, Joseph's Lepoidevin testified that in late February 1986 Kasper told him that anyone even men- tioning the word "union" would be fired. Similarly, Noone testified that on one occasion (he could not re- member when) Kasper told him that the employees should not try to get a union; that if they did, they would be fired. In fact, Kasper's feelings about unionization were no secret. He testified: Q. Did you ever say to Mr. Noone, I hope the hell you don't ever get a union in here, or, don't you guys ever get a union in here? A. No, I have said, not only to him, but several other of our people around there, our faithful em- ployees, who don't want a. union and those that want a union-I have always said, if we get a union in here, none of you are going to have a job. For the simple reason, I'll be forced to shut the doors down. Q. Now why would you be forced to shut the doors down if the union came in? A. Because I cannot pay the union wage and I cannot put up with that BS that a union puts out, it's impossible, the way I run my business. So I'd be forced to shut down. Q. The solid waste business in New Jersey is reg- ulated, is it not? A. That's right. A. Is it regulated by the board of Public Utilities in the State of New Jersey? A. Certainly is. Q. Now, your company cannot just raise its rates as another kind of company, can it? 17 A. No, they can't. Q. In fact, do you not have to receive approval of the Board of Public Utilities, do you not? A. Yes I do. Q. For rate increase? A. That's absolutely right. Q. In fact, you're considered a public utility by this state, are you not? A. We are. Q. And, in fact, to get a rate increase, you have to file a petition. By the hearing officer: Q. Did you make these statements before the election? A. I beg your pardon? Q. Did you tell these things to the employees? A. I have said that from day one. Before, this union thing ever came in. If we ever have to go union, we are forced to close our doors, that is a fact, its not a threat, its fact. Q. Did you say that during the period before the election? A. Before union, and while it was going on. Any- body that desired to know so. It was never a hidden fact, I never threatened anybody. I've always said, and I still say today, if the union was to hit our shop, we are forced to close the doors. Because we do not have the operating capital to run a shop, union. There are no union shops around our way. Q. I'll take that as a yes, to my question. Unless, you think that I shouldn't. As noted above, the Union filed its representation peti- tion on 25 March 1986, which presumably was received a few days later. On 4 April 1986 Sandra Lepoidevin was discharged. Kasper told her that she was "having too many problems." The pink slip she received at the time of her discharge stated that she was discharged for insubordination. Kasper asserts that his working relationship with Le- poidevin began to go sour sometime around January 1986. He characterized her as being moody and unre- sponsive to direction. He cited a variety of incidents in- volving, Lepoidevin leading up to a final incident, which according to Kasper, "broke the camel's back." According to Kasper, Lepoidevin had a habit of not calling in at lunch (via the two-way radio). He said that this went on for months but that "I never said anything, I just keep peace in the family . . . . Kasper also testi- fied that Lepoidevin had a habit of punching her hus- bands timecard contrary to company rules. Nevertheless there is no contention that either was stealing time as they arrived at work together. It also is apparent that this had been going on for a substantial period of time to her discharge. Additionally Kasper cites the refusal of the Lepoidevins to wear the company uniform. There in fact is no dispute that they did refuse to wear the uni- form asserting that theirs were too old. In any event, this too went on for a considerable time and was tolerated by Kasper. 18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The final straw according to Kasper occurred on one occasion when Lepoidevin refused to answer a radio call made by him from the office. This is in fact conceded by Lepoidevin and was in my opinion an instance of insub- ordination. Yet the questions remains whether this by itself or in conjunction with the other alleged incidents was the reason for Lepoidevin's discharge or whether the principal reason for her discharge was her union ac- tivities. In this respect I note that despite Kasper's asser- tion that the radio call incident was the final straw, he kept silent and did not act until some time later.4 (Ac- cording to Kasper, several weeks later.) C. The Election Pursuant to the Stipulation for Certification Upon Consent Election executed on 16 April, the parties agreed to hold an election on 16 May 1986. Prior to the election the Union selected Lepoidevin to be its observer at the election and instructed her to chal- lenge the votes of certain persons whom the Union did not feel should be eligible to vote.5 When Lepoidevin showed up at the election, which was to be held in the Company's garage, Kasper in- formed her that she could not come onto the premises and that if she did not leave within 5 minutes, he would call the police. (He did in fact do so.) Faced with this situation, Lepoidevin left the premises without voting and was not allowed by Kasper to act as the Union's ob- server at the election. Other employees were present during this incident, and as a result the Union did not have an observer at the election. D. Analysis There is no dispute concerning the fact on various oc- casions during the Union's organizing campaign Kasper told employees that if the Union got in, the business would be closed. The Respondent asserts that this was not a "threat" but merely a legitimate prediction of the economic consequences of unionzation, in that as a com- pany whose prices are regulated by the New Jersey Board of Public Utilities, it would not be permitted to pass along any increases in costs incurred by a union contract. I disagree. 4 Neither Kasper nor Lepoidevin would recall with any specificity when this incident occurred Regarding his failure to act immediately on this incident of insubordination, Kasper asserted that he decided then and there to discharge Lepoidevin He states, however, that he was aware that a contract was about to expire and therefore that he decided to bide his time and say nothing until the contract was over, when he would need one less driver He did not however produce this contract which he conceded was within his possession 6 At Board-conducted elections both the employer and the union have the right, during the election, to challenge the votes of persons who appear to vote and whom one or the other side feels is not eligible to vote This is ordinarily done by the union or employer observer who stays with the Board agent who is in charge of conducting the election When a challenge is made, the voter is instructed to mark his or her ballot, put it into an envelope which is identified , sealed, and segregated If challenge votes would determine the outcome of the election, and if it is later determined by the Board that a voter or votes was eligible to vote, the envelopes of the respective voters are opened and the votes are counted (To the extent possible, care is taken to ensure that the ballots are kept secret ) Assuming for argument's sake that the Company's prices would be scrutinized by a New Jersey public agency, the Respondent has not shown to my satisfaction that any future rate increase application would automati- cally be rejected. Further, as the Union had not present- ed any demands to the Company, I fail to see how the Company could reasonably tell its employees in such black and white terms that unionization equals plant clo- sure. In NLRB v. Gissel Packing Co., 395 U.S. 575, 620 (1969), the Court stated: Petitioner argues that the line between so-called permitted predictions and proscribed threats is too vague to stand up under traditional First Amend- ment analysis and that the Board's discretion to cur- tail free speech rights is correspondingly too uncon- trolled. It is true that a reviewing court must recog- nize the Board's competence in the first instance to judge the impact of utterances made in the context of the employer-employee relationship, see NLRB v. Virginia Electric & Power Co., 314 U.S. 469, 479 (1941). But an employer, who has control over that relationship and therefore knows it best, cannot be heard to complain that he is without an adequate guide for his behavior. He can easily make his views known without engaging in "brinkmanship" when it becomes all too easy to "overstep and tumble [over] the brink," Wausau Steel Corp. v. NLRB, 377 F.2d 369, 372 (7th Cir. 1967). At the least he can avoid coercive speech simply by avoid- ing conscious overstatements he has reason to be- lieve will mislead his employees. The court also stated at 619: Equally valid was the finding by the court and the Board that petitioner's statements and communi- cations were not cast as a prediction of "demon- strabley `economic consequences;"' 397 F.2d, at 160, but rather as a threat of retaliatory action. The Board found that petitioner's speeches, pamphlets, leaflets, and letters conveyed the following message: that the company was in a precarious finanical con- dition; that the "strike-happy" union would in all likelihood have to obtain its potentially unreason- able demands by striking, the probable result of which would be a plant shutdown, as the past histo- ry of labor relations in the area indicated; and that the employees in such case would have great diffi- culty finding employment elsewhere. In carrying out its duty to focus on the question: "[W]hat did the speaker intend and the listener understand?" A. Cox, Law and the National Labor Policy 44 (1960), the Board could reasonably conclude that the in- tended and understood import of that message was not to predict that unionization would inevitably cause the plant to close but to threaten to throw employees out of work regardless of the economic realities. In this connection, we need go no further than to point out (1) that petitioner had no support for its basic assumption that the union, which had not yet even presented any demands, would have to KASPER DISPOSAL SERVICE strike to be heard, and that it admitted at the hear- ing that it had no basis for attributing other plant closings in the area to unionism; and (2) that the Board has often found that employees, who are par- ticularly sensitive to rumors of plant closings, take such hints as coercive threats rather than honest forecasts. 6 I also conclude based on the credited testimony of Le- poidevin and Noone that in late February and March 1986, Kasper violated Section 8(a)(1) of the Act by threatening to discharge employees if they joined or as- sisted the Union.7 Regarding the discharge of Sandra Lepoidevin, it is my opinion that the General Counsel has made out a strong prima facie case that it was motivated by union considerations . This is based on the timing of her dis- charge, shortly after the Union filed its petition for an election, Kasper's admitted awareness of her union ac- tivities, and his demonstrated aversion to the Union. Therefore having established a prima facie case, the burden shifts to the Respondent to demonstrate that it would have discharged Lepoidevin even in the absence of her union activity. Wright Line, 251 NLRB 1083 (1980), modified 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982); NLRB Management Corp., 462 U.S. 393 (1983). v. Transportation Given the respective burdens of proof, I am not con- vinced that the Employer has shown that it would have discharged Lepoidevin absent her union activity. Most of her transgressions cited by the Employer (such as not wearing uniforms) were of longstanding duration and were clearly tolerated by Kasper. What's more, the inci- dent, which he cited as the final straw, was not acted on by Kasper at the time it occurred. Rather, he asserts that instead of reacting to Lepoidevin's refusal to answer his radio call to her, he said nothing; deciding to bide his time until a contract expired. I find this unconvincing and improbable. If this incident was in fact the deciding factor in Kasper's decision to discharge Lepoidevin, I cannot imagine that he would have waited around for weeks while remaining silent. If anything was shown in this case, it was that Kasper is not the type of person who hides his feelings or opinions. As I have concluded that Lepoidevin was unlawfully discharged, it follows that she would have been an eligi- ble voter at the election and would rightfully have been designated by the Union as its observer. Accordingly, I find that the Respondent violated the Act based on the fact that Kasper refused to allow Lepoidevin to vote in the election (or even cast a ballot): refused to permit her to act as the Union's observer; and threatened in the presence of employees, to call the police unless she left the premises. Scotch & Sirloin Restaurant, 269 NLRB 436 (1984). As these violations were substantial and in my opinion interfered with the conduct of the election, I shall also find merit to the Union's Objections 1, 2, and 9 6 See also American Display Mfg. Co, 259 NLRB 21, 32, 33 (1981) 7 In view of my 8(a)(1) conclusion to the effect that Kasper threatened plant closure and employee discharges , it is not necessary and would be redundant to make any conclusion as to the alleged statement by Russell Kasper in Noone's presence on the day of the election 19 and recommend that the election be set aside . Dal-Tex Optical Co., 137 NLRB 1782 (1962). E. The Status of Joe's Disposal Service Right after the election on 16 May 1986 , Joseph Le- poidevin quit his employment at Kasper Disposal Serv- ice. As a consequence of his quitting, and his wife's dis- charge, the agreement whereby Joe's Disposal was to be acquired by Kasper Disposal was never consummated. Thus, after the election, Joe's Disposal reverted to the control of Joseph Lepoidevin and no longer had any re- lationship with Kasper Disposal Service. In view of the above, it seems to me that it would be wholly inappropriate to hold Joe's Disposal Service jointly liable for the unfair labor practices committed by Gustav Kasper and against his wife, Sandra Lepoidevin. I shall therefore recommend that Joe's Disposal Service not be held responsible for the unfair labor practices in- volved in this case and that its name be eliminated as a party in the event that there is a rerun election. CONCLUSIONS OF LAW 1. Respondent Kasper Disposal Service is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Teamsters Local 945 a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America is a labor organization within the meaning of Section 2(5) of the Act. 3. By threatening to discharge employees or to close its business if employees join, support, or select a union as their bargaining representative, Kasper Disposal Serv- ice violated Section 8(a)(1) of the Act. 4. By discharging Sandra Lepoidevin on 4 April 1986 because of her activities on behalf of the Union, Kasper Disposal Service has violated Section 8(a)(1) and (3) of the Act. 5. By ordering Sandra Lepoidevin off its premises and threatening to call the police unless she left, Kasper Dis- posal Service interfered with the right of employees to cast ballots in the election and to act as union observers. 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 7. The acts and conduct described above in paragraph 5, interfered with the conduct of the election held on 16 May 1986. 1 therefore recommend that the Union's Ob- jections 1, 2, and 9 be sustained. 8. Joe's Disposal Service is not liable for any of the aforesaid unfair labor practices and it should be served as a party in these cases. THE REMEDY Having found that the Respondent has violated the Act in certain respects, I shall recommend that it cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. With respect to Sandra Lepoidevin, it is recommended that the Respondent offer her full and immediate rein- statement to her former job or, if that job no longer exists, to a substantially equivalent position, without prej- udice to her seniority or other rights and privileges pre- 20 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD viously enjoyed, and to make her whole for any loss of earnings she may have suffered by reason of the discrimi- nation practiced against her, such earnings to be comput- ed in accordance with the formula set forth in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest there- on to be computed in the manner prescribed in Florida Steel Corp., 231 NLRB 651 (1977). See generally Isis Plumbing Co., 138 NLRB 716 (1982). Additionally, in accordance with Sterling Sugars, 261 NLRB 472 (1982), I shall recommend that Respondent expunge from its files any reference to the discharge of Sandra Lepoidevin and to notify her in writing that this has been done and that evidence of same will not be used as a basis for future personnel actions against her. Insofar as the representation case is concerned (22- RC-9594), I recommend that the election be set aside, and that a new election be conducted under the supervi- sion of the Regional Director for Region 22. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed8 ORDER The Respondent, Kasper Disposal Service, Annandale, New Jersey, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Threatening to close its business if its employees select a union to represent them for purposes of collec- tive bargaining. (b) Threatening to discharge or discharging employees because of their union support or sympathies. (c) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of the rights to self-organization, to form, join, and assist labor organizations, to bargain collectively through representa- tives of their own choosing, and to engage in other con- certed activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer Sandra Lepoidevin immediate and full rein- statement to her former job or, if that job no longer exists, to a substantially equivalent position, without prej- 8 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall , as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses udice to her seniority or other rights and privileges and make her whole for any loss of earnings she may have suffered in the manner set forth in the remedy section of this decision. (b) Remove from its files any references to the dis- charge of Sandra Lepoidevin and notify her in writing that this been done and that evidence of the discharge will not be used as a basis for any future personnel ac- tions against her. (c) Preserve and, on 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 other records nec- essary to analyze the amount of backpay due under the terms of this Order. (d) Post at its office copies of the attached notice marked "Appendix."8 Copies of the notice, on forms provided by the Regional Director for Region 22, after being signed by the Respondent's authorized representa- tive, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other materi- al. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps have been taken to comply. For the purpose of determining or se- curing compliance with this Order, the Board, or any of its duly authorized representatives, may obtain discovery from the Respondent, its officers, agents, successors, or assigns, or any other person having knowledge concern- ing any compliance matter, in the manner provided by the Federal Rules of Civil Procedure. Such discovery shall be conducted under the supervision of the United States court of appeals enforcing this Order and may be on any matter resonably related to compliance with this Order, as enforced by the court. IT IS FURTHER RECOMMENDED that the election con- ducted on 16 May 1986, in Case 22-RC-9594 be set aside and that the case be remanded to the Regional Director for Region 22 to conduct a new election at such time as he deems the circumstances permit the free choice of a bargaining representative. 9 If 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 Nation- al 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 "