Machinery Distribution Co.

National Labor Relations Board - Board Decisions

Jun 19, 1974

211 N.L.R.B. 756 (N.L.R.B. 1974)

756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Machinery Distribution Company and Gaylord W.
Slaysor, Garland L . Morgan, Lonnie Phipps, and
Thomas L. Russell . Cases 21-CA-12052-1,
21-CA-12052-2, 21-CA-12052-3, and 21-
CA-12052-4
June 19, 1974
DECISION AND ORDER
BY MEMBERS JENKINS , KENNEDY, AND
PENELLO
On February 5, 1974, Administrative Law Judge
Richard D. Taplitz issued the attached Decision in
this proceeding . Thereafter , Respondent filed excep-
tions and a supporting 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 brief
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 Respondent, Machinery
Distribution Company, Baldwin Park, California, its
officers , agents, successors , and assigns, shall take the
action set forth in the said recommended Order.
DECISION
STATEMENT OF THE CASE
RICHARD D . TAPLITZ, Administrative Law Judge: This
case was tried at Los Angeles , California , on December 20,
1973.1 The complaint, which issued on October 19, was
based on charges filed by Gaylord W. Slaysor, Garland L.
Morgan, Lonnie Phipps and Thomas L. Russell on August
22. The complaint alleges that Machinery Distribution
Company, herein called Respondent , violated Section
8(a)(1) and (3) of the National Labor Relations Act, as
amended.
Issues
The primary issues are:
I All dates are in 1973 , unless otherwise specified.
Y The business was first begun in 1968 when a group of individuals,
including Ray G. O'Marah , the president of Respondent , formed a
company under the name of Machinery Distribution Company. O'Marah
was vice president and treasurer of that company . The original company
had financial difficulties and its name and part of its business was taken
(1) Whether Respondent violated Section 8(aX3) and (1)
of the Act by laying off Slaysor , Morgan, Phipps, and
Russell on August 10 because those employees engaged in
activities on behalf of International Union of Operating
Engineers , Local Union No. 12, AFL-CIO, herein called
the Union , and because its employees voted to have the
Union represent them.
(2) Whether Respondent violated Section 8(a)(1) of the
Act by promising employees benefits if they abandoned
the Union and by interrogating employees about Union
activities.
All parties were given full opportunity to participate, to
introduce relevant evidence , to examine and cross-examine
witnesses , to argue orally, and to file briefs . A brief, which
has been carefully considered, was filed on behalf of the
General Counsel.
Upon the entire record of the case , and from my
observation of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent , a California corporation engaged in the sale
and servicing of heavy construction equipment, has its
principal place of business at 1155 Baldwin Park Boule-
vard, Baldwin Park, California. Respondent annually
purchases and receives goods valued in excess of $50,000
directly from suppliers located outside of California. The
complaint alleges , the answer admits , and I find that
Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer as amended admits,
and I find that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Events
1. The setting
Respondent has been in the business of selling and
servicing heavy construction equipment since July 26,
1971.2 Respondent has four departments: a service
department with approximately 14 employees; a parts
department with approximately 6; a sales department with
approximately 7; and an office with about 4. The service
department works on repairs, maintenance, and warranty
work for much of the equipment that Respondent sells.
On August 3, 1973, a Board-conducted election was held
among the service department employees .3 The employees
voted 11 to 0 in favor of representation by the Union, and
on August 13, 1973, a Board certification issued.
over by Respondent . Respondent continued the employment of all of the
original company's employees with no break in service.
3 The bargaining unit was "all leadmen, mechanics , mechanics appren-
tices, and mechanics helpers employed by the Employer at its facility
located at 1155 Baldwin Park Boulevard, Baldwin Park, California,
excluding all other employees, outside salesmen , office clerical employees,
211 NLRB No. 126
MACHINERY DISTRIBUTION CO.
On August 10, 1973, 7 days after the election, Respon-
dent laid off Slaysor, Morgan, Phipps, and Russell, all of
whom were employees in the service department. The
General Counsel contends that the layoffs were causally
connected to the union activity while Respondent contends
that they were solely motivated by legitimate, economic
considerations.
2. The union activity, the layoffs and the alleged
violations of Section 8(a)(1)
Thomas L. Russell is a heavy equipment repairman. He
was employed by Respondent's predecessor from Novem-
ber 11, 1968, through June 1971, at which time he quit. He
was rehired by Respondent on August 23, 1971, and
remained until August 10, 1973, when he was laid off. At
the time of the layoff, there were nine mechanics of whom
seven were senior to him and one less senior .4
In February 1973, Russell called Frank Todd, a
representative of the Union, and asked about unionization.
Todd told him to set up a meeting for the Union to speak
to the employees. Russell then contacted Garland Morgan,
a fellow employee, and asked him to help organize.
Morgan agreed. Russell and Morgan arranged to have the
meeting at the union headquarters on May 6, 1973. In
addition to a number of union representatives, eight
mechanics from Respondent attended. A second meeting
took place at the union office on May 20, at which time
employees signed union authorization cards. Between the
two meetings, both Russell and Morgan spoke to employ-
ees about the Union on Respondent's premises during
lunch hour and after work.
Morgan was a welder and mechanic. He was employed
from December 16, 1968, to July 1972 when he left because
of an injury. He was reemployed from October 1972 until
August 10, 1973, when he was laid off. Respondent's
records show five employees who were hired before
Morgan's December 16, 1968, seniority date.
Lonnie Phipps is a mechanic who was employed by
Respondent from July 16, 1968, until he was laid off on
August 10, 1973. There were four employees hired prior to
his seniority date. Phipps talked in favor of the Union to
other employees in the shop on many occasions.
The fourth employee who was laid off on August 10,
1973, was Gaylord Slaysor. He had been hired as a
mechanic trainee on May 21, 1973, and was the least senior
employee in the department. He did not take the stand
during the trial and there is no evidence in the record
(other than the fact that all the employees voted for the
Union) that he engaged in union activity.
Respondent knew that Russell, Morgan and Phipps were
active on behalf of the Union. Stanley H. Roberts,
Respondent's service manager,5 acknowledged on the
stand that Russell told him on August 3, 1973, in the
evening after the election, that Russell and Morgan had
excluding all other employees , outside salesmen , office clerical employees,
professional employees , guards and supervisors as defined in the Act."
4 G. C. Exh. 5 shows Respondent 's employee complement and the dates
of hire . There are nine typed names on the list and in addition three
handwritten names. These three names include Gaylord Slaysor, who was a
mechanic trainee . Based on Russell 's testimony that there were nine
mechanics , it appears likely that the three handwritten names, all of whom
757
been active in getting the Union in the shop. Roberts also
acknowledged that he had heard about Russell and
Morgan's union activities around the shop even before
August 3, 1973. Phipps had talked in favor of the Union
very openly in the shop. While doing so on August 3, 1973,
before the election, Roberts was standing 8 or 10 feet away
and was in a position to hear him. In addition, Roberts
knew of Phipps' union sympathies from a conversation he
had with him on May 15 or 16, 1973. At that time, Phipps
and Roberts were driving together in a truck. Roberts said:
"I hear you guys are going union." Phipps replied: "Yes,
we are going union." Roberts asked "why" and Phipps
replied that the Union would not only help the employees
but would help the Company because it would be allowed
to work on union jobs. Roberts then said that if the Union
came in, there would be some changes made. Roberts also
said: "if the Union don't come in, why you guys will get
your trucks back." At the time Phipps began working for
Respondent, he was allowed to keep a company truck in
his possession 24 hours a day. Other employees had the
same privilege. In April 1973, the situation changed and
the employees were told that they had to return the trucks
to the company yard every evening unless the employee
had to leave early in the morning and go directly to a job
or other situations existed where there was special
justification for the employee taking the truck home. At the
time of this conversation, the employees still had only
limited use of the trucks .6
Morgan, Russell, Phipps, and Slaysor were all laid off on
August 10 without prior notice. Neither Respondent nor its
predecessor had ever laid off any employees in the past.
Morgan was offered his job back on October 4, 1973.
Russell, Slaysor, and Phipps were offered their jobs back
on October 26, 1973, to report to work on November 5,
1973. None of them returned to work. However, Phipps
was on an injury-related disability both at the time of the
layoff and the time he received the letter offering him his
job back. He replied to that letter by notifying Respondent
that he would return to work as soon as his doctor told him
he was able to.7
3. Respondent's response to the union activity
On July 25, 1973, Ray G. O'Marah, president of the
Company, made a speech to the assembled employees in
the office of Art Clauss, the vice president of the Company.
Other officials- of Respondent were also present. O'Marah
told the employees that he was opposed to the Union and
wanted them to vote "No." He detailed a number of
benefits the employees had and compared different union
plans with company plans . During the talk, he said that the
Steelworkers had worked 1,000 hours a year and compared
that to his employees who worked the entire year. He
pointed out that since the organization of the original
Company in 1968 there had never been a layoff and that
were recent hires , were trainees.
5 The complaint alleges, the answer admits, and I find that Roberts is a
supervisor within the meaning of the Act.
6 The findings with regard to the conversation between Roberts and
Phipps are based on the credited and uncontradicted testimony of Phipps.
4 These findings are based on a stipulation of all the parties and the
credited testimony of O'Marah.
758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent had gone out of its way to furnish work even
during the slow periods so that everyone would have work.
He referred to the building of stands and work benches in
the shop which had been done to give employees
something to do.8
The following day, July 26, 1973, Respondent sent a
letter to all of its employees reiterating much of what was
said at the meeting. The letter said that an election would
be held on August 3, 1973; referred to many benefits
received by employees from the Company; pointed out the
costs of belonging to a union and the possibility of strikes;
and urged the employees to vote "No." In addition, the
letter included the following paragraph:
Because it is so very, very important, I would like to
mention again the year round employment that you
people have had. Some of you go back to 1968 and you
have yet to miss a day's work. This spring I instructed
Stan to bring three or four of you in to work on various
Saturdays so that you would have the opportunity to
earn some overtime. We didn't have a rush job but it
was out of our desire to be fair with you. During several
of the past winters, we have sat down and made a list of
make-shift work that you could do in the shop so that
we would not have to lay you off. On more than one
occasion we have done this even though the company
was losing money. I hope you will remember the
newspaper clipping I read which was written by the
Sheetmetal Workers Union in which they stated that
'they average about 1,000 hours of work per year
because of all the strikes and layoffs'. That is six
months work per year. We have provided you with year
round employment for six years.
On July 30, 1973, Respondent sent a second letter to all
of its employees urging them to vote "No" at the election.9
On August 2, 1973, O'Marah held a second meeting with
all of the employees. He went over much of what he had
said at the first meeting. He said the employees didn't need
the Union because they could work out their problems. He
also urged them to vote "No" at the election which was to
be held the next day.
As set forth above, the election was conducted on
August 3, 1973, and the employees voted for the Union
11-0.
B. Respondent's Defense
Respondent asserts that it was compelled to lay off the
four employees mentioned above because of economic
circumstances . According to Respondent, a number of bids
for major sales had been rejected about that time; its
franchise area for some of the equipment it sold had been
reduced ; it was showing record losses ; and economic
survival required the layoff. Respondent does not contend
that the four laid-off employees were unsatisfactory. 10
" These findings are based on the credited and uncontradicted testimony
of Russell and Morgan.
a This letter contained a number of questions and answers . None of them
are alleged to be violative of the Act.
10 Russell was never criticized and was often complimented for his work
by both his supervisor and customers. He received a 45-cent-an-hour raise
on May 1, 1973. He, along with other employees, had been sent to a
Respondent does not contend that there was a lack of work
for the employees to do in the shop. Shop Foreman Jerry
Slapper credibly testified that in the beginning of August
1973 there was a lot of rental equipment to work on in the
shop and that they were busy. He also credibly testified
that before the layoff there was much work going on in the
shop . In a similar manner , Morgan credibly testified that at
the time he was laid off there were two pieces of equipment
that he was working on and there was much work to be
done.
With regard to the selection of the four employees to be
laid off, O'Marah testified that he left that to the service
manager with the understanding that the eight people who
remained had to have enough skills to cover the entire
product line that Respondent handled. O'Marah averred
that they decided that they could reduce one welder, one
mechanic, and one helper with the fourth man to be
selected by the service manager. According to O'Marah,
within this framework of the skills that were needed, the
choice of who was to be laid off was made strictly on the
basis of the men's ability.
In the months preceding the layoff, Respondent's
financial situation was depressed by its failure to receive
awards on a number of major bids that it made . In late
spring 1973, two of Respondent's major accounts, Komat-
sti,America and Westinghouse Air Brake notified Respon-
dent that because of a lack of sales volume they were going
to seek other distribution outlets."
Respondent's records established that in the 5 months
ending December 31, 1971, Respondent lost $7,076.47 on
total sales of $110 ,496.28 ; for the 12 months ending
December 31, 1972 Respondent showed profits (before
taxes) of $64,237.42 on total sales of $2,749,759.98, with a
loss of $5,801.63 in July and a loss of $19,609.66 in August;
for the 8 months ending August 31, 1973 , Respondent lost
$200,690 .75 on total sales of $1 ,061,209 .83, with a loss of
$39,497.65 in July and $13,428.04 in August. In comparing
the first 8 months of 1972 with the first 8 months of 1973,
the records show that for the first 8 months of 1972
Respondent lost $104,825.87 and in spite of this ended the
year with a profit of $64,237.42. For the first 8 months of
1973, Respondent lost $200,690.75. The figures for the last
4 months of 1973 are not in the record.
O'Marah testified that he had a number of conversations
with his two partners, Jess Evrard and Art Clauss,
beginning as early as March or April 1973 with regard to
the possibility of laying off employees if the business
situation did not improve. O'Marah further testified that
some time in July before he left for vacation they again
discussed the financial picture with a view toward
trimming the organization in line with their sales volume
through a company-wide curtailment of personnel. He
further averred that they decided to wait until they
received the July figures before making the final decision
on the cutback and that if July turned out to be a good
company-paid training school. Morgan was told by Roberts at the time of
the layoff that Respondent was well satisfied with his work as a welder and
that the layoff was caused by a slowness of work . Jerry Slapper,
Respondent 's shop foreman , credibly testified that Russell was a good
mechanic who was better than the other employees with regard to some of
the equipment and that Morgan was an excellent welder.
11 These findings are based on the credited testimony of O'Marah.
MACHINERY DISTRIBUTION CO.
month in terms of profits, they would reevaluate the
situation and defer the decision to layoff. According to
O'Marah, while he was away on vacation during the week
preceding August 10, he spoke on the telephone to Clauss
and Evrard; they discussed the July figures which showed
an operating loss of almost $40,000 on total sales of about
$159,000; and they decided to reduce the number in the
service department by four effective Friday, August 10.
The only other layoff about that time was that of a
salesman on August 15. In addition, the staff was
somewhat reduced through attrition. One salesman re-
signed in late May and was not replaced. The two
territories of those salesmen were cut out of the sales
department. In mid-August, one employee in the parts
department left to take another job. In addition, O'Marah's
secretary took maternity leave and some additional time
off without pay at her own request.
O'Marah testified that, in the past, Respondent had
found work to keep employees busy and avoid layoffs but
that the financial picture was worse in July 1973 than it
had ever been before and that the severity of the economic
problem was such as to require layoffs.
In a letter to all employees dated June 6, 1973,
Respondent stated that it had hired two new employees,,;
Richard Smith and Gaylord Slaysor. Both were in the
service department. The letter said "We are still very;
confident that we will have a busy summer and fall. We
appreciate your efforts."
Between February 1 and June 1, 1973, at a time when
Respondent alleges that it was suffering from a financial
crisis, it granted wage increases to nine employees in the
service department. As indicated above, at the time of the
layoff, there was still a substantial amount of work to be
done in the service department.
O'Marah testified that in October 1973 there was an
influx of business and, on the dates set forth above, the
four laid-off employees were offered their jobs back.
C. Analysis and Conclusions
1. The interrogation and promise of benefit
As set forth in detail above, Respondent's service
manager , Roberts, spoke to Phipps about the Union on
May 15 or 16, 1973. Though Roberts used the phrase, "I
hear you guys are going union,." he was not making a
declaratory statement but was asking for a response from
Phipps. Roberts was interrogating Phipps, and Phipps so
understood it when he replied that they were going union.
Roberts' statement to Phipps that if the Union did not
come in the employees would get their trucks back, was a
direct promise of benefit to induce the employees to refrain
from union activity. By making such a promise, Respon-
dent interfered with the rights of employees guaranteed by
Section 7 and thereby violated Section 8(a)(1) of the Act.
Roberts interrogated Phipps about the union activity of
the employees in the same conversation that he made the
unlawful promise. As became apparent at a later date from
O'Marah's speeches and letters, Respondent was hostile
toward the Union. No assurance was given to Phipps that
the employees would be free from reprisal. Under those
circumstances , the interrogation also violated Section
759
8(a)(1) of the Act. Struksnes Construction Co., Inc., 165
NLRB 1062; Big Three Industries, Inc., 192 NLRB 370.
2. The layoffs
Respondent's employees had the right under the Act to
select the Union to represent them. They exercised that
right through the activities of some of the employees in
organizing on behalf of the Union, and by voting for the
Union in a Board-conducted election.
During the organizational drive, Respondent, through
Roberts, manifested its animus against the Union by
engaging in unlawful interrogation and an unlawful
promise of benefit. On July 25, in his speech to the
assembled employees, O'Marah also expressed his opposi-
tion to the Union and urged the employees to vote "No" at
the election. During that speech, O'Marah pointed out that
the Company had never laid off any employees during
slow periods and had gone out of its way to furnish work.
In the same speech, he said that union employees only
worked an average of a thousand hours a year. The same
theme was repeated in O'Marah's letter of July 26, in which
he reminded employees that they had year-round work,
and that sheet metal union employees averaged 1,000 hours
of work per year, because of strikes and layoffs. O'Marah
reminded employees that on more than one occasion the
Company had followed its no-layoff policy even though it
was losing money. The last two sentences of that letter
make it clear that O'Marah was comparing the union
situation with a nonunion situation. In referring to the
1,000 hours work per year of the average sheet metal union
worker, he said, "That is six months work per year. We
have provided you with year round employment for six
years."
On August 3, the employees unanimously voted for the
Union and 7 days later, on August 10, Respondent broke
with its past policies and laid off four employees in the
bargaining unit.
By proving the facts set forth above, the General Counsel
has established aprimafacie case that the four layoffs were
motivated by Respondent's desire to retaliate against its
employees for selecting the Union to represent them.
Respondent's defense must be weighed in the light of that
evidence.
I have credited Respondent's assertion that it had been
unsuccessful in a number of important bids, and that it
anticipated losing some of its sales territory. I have also
credited Respondent's assertion that at the time of the
layoff, it was suffering even more serious economic
difficulties than it had in prior years. However, Respon-
dent's contention that the layoffs were motivated solely by
economic considerations, is put in doubt by a number of
circumstances. During the time that Respondent was
suffering those losses, it still hired two new employees in
the service department. Also during that time, Respondent
raised the pay of a large number of the service department
employees. When the layoff occurred, there was a
substantial amount of work to be done. Respondent's
experience in 1972 indicated that economic losses in July
and August could be compensated for by good business
during the remainder of the year. There are indications
that the same pattern was being repeated in 1973 in that an
760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
influx in business in October required Respondent to hire
more mechanics in the service department.
The strongest reason for questioning Respondent's
economic defense flows directly from O'Marah's own
speeches and letters . O'Marah told the employees that they
had been provided with year-round employment since the
Company went into business , even though the Company
was losing money, and contrasted that with union
employees who only work 6 months a year . The question of
the layoff was thereby related to union or nonunion status,
and not to the economic condition of Respondent.
Under all of these circumstances , I am persuaded that
Respondent was using its economic condition as a pretext
to disguise the real reason for layoffs .12 I find that the
layoffs would not have occurred but for the fact that the
employees voted for the Union ; that Respondent laid off
the four employees to retaliate against employees for
selecting the Union to represent them; and that Respon-
dent thereby violated Section 8(aX3) and (1) of the Act.13
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above , occurring in connection with the operations of
Respondent described in section I, above, have a close,
intimate , and substantial relation to trade , traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices , I shall recommend that it be ordered
to cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Having found that Respondent laid off Morgan, Russell,
Slaysor, and Phipps on August 10, 1973, and did not offer
reinstatement to Morgan until October 4, 1973, or to
Russell, Slaysor and Phipps until November 5, 1973,14
thereby violating Section 8(aX3) and ( 1) of the Act , I shall
recommend that Respondent be ordered to make those
four employees whole for any loss of pay resulting from
those layoffs by payment to each of them of a sum of
money equal to the amount each normally would have
earned as wages from Respondent between August 10 and
12 1 do not credit O'Marah's assertion that he decided along with his
partners to lay off employees when the business situation did not improve.
i3 The General Counsel argues as an alternative theory that Respondent
violated Section 8(axl) and (3) of the Act by choosing the laid-off
employees because of their individual activities in spearheading the union
drive. I do not believe that such a finding would be warranted . Though two
of the laid-off employees were keymen for the Union, the third did no more
than speak on behalf of the Union to other employees , and there is no
evidence that the fourth engaged in any activity other than voting for the
Union in a secret election. Respondent knew that all eleven employees
voted in favor of the Union . There is no evidence that Respondent had any
particular hostility toward the four employees selected for layoff. O'Marah's
explanation , that he was concerned with having enough skills to cover his
product line, was plausible.
14 Though Russell, Slaysor, and Phipps were offered their jobs back on
October 26 , 1973, that offer was for them to return to work on November 5,
1973. The effective date of the offer was therefore November 5. With regard
to Morgan , Russell , and Slaysor , as the Board held in American
October 4, 1973, for Morgan, and between August 10 and
November 5, 1973, for Russell , Slaysor, and Phipps, 15 less
net earnings during those periods . Such backpay shall be
computed on a quarterly basis in the manner prescribed in
F. W. Woolworth Company, 90 NLRB 289, and shall
include interest at 6 percent , as provided in Isis Plumbing &
Heating Co., 138 NLRB 716.
It is further recommended that Respondent be ordered
to preserve and, upon request , make available to the Board
or its agents, for examination and copying , all payroll
records, social security payment records, timecards, per-
sonnel records and reports , and all other records necessary
to analyze the amount of backpay due.
CONCLUSIONS OF LAW
1. 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 laying off Garland L. Morgan, Thomas L.
Russell , Lonnie Phipps, and Gaylord W. Slaysor, on
August 10, 1973, because its employees selected the Union
to represent them , Respondent violated Section 8(a)(3) of
the Act.
4. By the foregoing conduct, by interrogating an
employee concerning union activity, and by promising
benefits to employees to induce them to refrain from union
activity, Respondent interfered with , restrained, and
coerced employees in the exercise of their rights guaran-
teed to them by Section 7 in violation of Section 8(a)(1) of
the Act.
5. 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 foregoing findings of fact , and conclusions of
law, and upon the entire record , and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
ORDER 1s
Respondent, Machinery Distribution Company, its
officers, agents, successors, and assigns , shall:
1. Cease and desist from:
(a) Laying off or otherwise discriminating against any
employee because its employees selected the International
Manufacturing Company of Texas, 167 NLRB 520, the backpay period is
tolled as to discriminatees who do not reply to an offer of reinstatement, on
the date of the last opportunity to accept the offer of reinstatement . Phipps
did reply by accepting the November 5, 1973, reinstatement offer which in
effect put him on an injury-related leave-of-absence status after that date
15 The parties stipulated and I have therefore found that Phipps was on
an injury-related disability at the time he was laid off and at the time he
received the letter offering him reinstatement . To the extent that he was
unavailable for work during the backpay period due to injuries he incurred
before the unlawful layoff , he is not entitled to backpay. Cf. American
Manufacturing Company of Texas, supra.
16 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.
MACHINERY DISTRIBUTION CO.
Union of Operating Engineers, Local Union No. 12,
AFL-CIO, to represent them.
(b) Interrogating employees concerning union activity.
(c) Promising benefits to employees to induce them to
refrain from union activity.
(d) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of
their rights guaranteed to them in Section 7 of the Act.
2. Take the following affirmative action to effectuate
the policies of the Act:
(a) Make Garland L. Morgan, Thomas L. Russell,
Lonnie Phipps, and Gaylord W. Slaysor whole for any loss
of earnings they may have suffered, 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 amount of backpay due.
(c) Post at its place of business at 1155 Baldwin Park
Boulevard, Baldwin Park, California, copies of the atta-
ched notice marked "Appendix." 17 Copies of the notice on
forms provided by the Regional Director for Region 21,
after being duly signed by Respondent's authorized
representative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it 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 Respondent to
insure that said notices are not altered, defaced, or covered
by any other material.
(d) Notify the Regional Director for Region 21, in
writing , within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
17 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an order of the National Labor Relations Board."
761
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The Act gives all employees these rights:
To engage in self-organization; To form, join,
or help unions; To bargain collectively through a
representative of their own choosing; To act
together for collective bargaining or other mutual
aid or protection; To refrain from any or all these
things except to the extent that membership in a
union may be required pursuant to a lawful
union-security clause.
WE WILL NOT do anything that interferes with,
restrains or coerces employees with respect to these
rights. More specifically,
WE WILL NOT lay off or otherwise discriminate
against any employee because our employees selected
International Union of Operating Engineers, Local
Union No. 12, AFL-CIO, to represent them.
WE WILL NOT interrogate employees concerning
union activity.
WE WILL NOT promise benefits to employees to
induce them to refrain from union activity.
WE WILL make Garland L. Morgan, Thomas L.
Russell, Lonnie Phipps, and Gaylord W. Slaysor whole
by paying them backpay with interest at 6 percent.
MACHINERY DISTRIBUTION
COMPANY
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office,
Eastern Columbia Building, 849 South Broadway, Los
Angeles, California 90014, Telephone 213-688-5229.