United Electrical Supply Co., Inc.

National Labor Relations Board - Board Decisions

Feb 5, 1976

222 N.L.R.B. 749 (N.L.R.B. 1976)

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.