Ray Whitfield Ford, Inc.

484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ray Whitfield Ford, Inc. and Automotive Salesmen's Association (A.S.A.), Independent. Cases 7-CA-5827 (2) and 7-RC-7517 January 30,1968 DECISION, ORDER, AND DIRECTION BY MEMBERS FANNING, JENKINS, AND ZAGORIA On October 19, 1967, Trial Examiner William Seagle issued his Decision in the above-entitled proceedings, finding that the Respondent had en- gaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Decision and a supporting brief. 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 powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered, the Trial Examiner's Deci- sion, the exceptions and brief and the entire record in these cases, and hereby adopts the findings,' conclusions,2 and recommendations of the Trial Ex- aminer. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner and hereby or- ders that Respondent, Ray Whitfield Ford, Inc., Taylor, Michigan, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as so modified. 1. Delete subparagraph (c) of paragraph 1 of the Trial Examiner's Recommended Order and sub- stitute in lieu thereof the following: "(c) In any other manner interfering with, restraining, or coercing its employees in the exer- cise of their right to self-organization, to form labor organizations, to join or assist Automotive Salesmen's Association (A.S.A.), Independent, or any labor organization, to bargain collectively through representatives of their own choosing, to engage in other concerted activities for the pur- poses of collective bargaining or other mutual aid or protection, or to refrain from any or all such activi- ties, except to the extent that such a right may be af- fected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclo- sure Act of 1959." 2. The third indented paragraph of the Appen- dix attached to the Trial Examiner's Decision is amended to read: WE WILL NOT in any other manner interfere with, restrain or coerce our employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist any labor organizations, to bargain collectively through representatives of their own choosing or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection or to refrain from any or all such activities. DIRECTION It is hereby directed that the Regional Director for Region 7 open and count the ballot of William A. Raupp, and thereafter prepare and cause to be served upon the parties a revised tally of ballots, in- cluding therein the count of the above ballot. If, ac- cording to the revised tally of ballots, the Union has received a majority of the valid ballots cast in the election, the Regional Director is directed to certify Automotive Salesmen's Association (A.S.A.), In- dependent, as the exclusive bargaining agent for the employees in the appropriate unit. If, according to the revised tally of ballots, the Union has not received a majority of the valid ballots cast in the election, the Regional Director is directed to certify the results of said election. 1 The complaint alleges and the answer admits that Respondent's gross volume of business exceeds $500 ,000 per annum. 2 The Respondent excepts to the Trial Examiner's finding that Ray Whitfield contradicted himself by placing his second conversation with former employee Hughes in the summer of 1966 and thereafter in December of 1966, contending that the Trial Examiner's finding is based on an obvious error in the transcript, since it is evident that Whitfield was referring to two separate conversations. We find merit in the Respond- ent's exception, since it becomes clear upon a careful examination of the record that Whitfield was speaking of two conversations. However, this apparently inadvertent error in no way affects the Trial Examiner's credi- bihty finding with respect to Whitfield, or our agreement with the Trial Examiner's ultimate findings herein TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE WILLIAM SEAGLE, Trial Examiner: Pursuant to a Deci- sion and Direction of Election Issued by the Regional Director on October 31, 1966,' an election by secret bal- lot was conducted on December 8, 1966 , among certain employees of the respondent 2 in order to determine whether they desired to be represented for the purposes of collective bargaining by the Automotive Salesmen's 1 The union's petition in the representation proceeding was filed on July 28,1966. 2 The unit found to be appropriate consisted of all new- and used-car and truck salesmen of the respondent except supervisory employees. 169 NLRB No. 78 RAY WHITFIELD FORD, INC. Association, an independent union (hereinafter referred to as the A.S.A. or as the union). Of the approximately 16 voters who were eligible to participate in the election, 5 cast ballots in favor of the A.S.A. and 5 cast ballots against it. The ballots of four voters were challenged, these being the ballots of Gerald Way, Michael Whitfield, Richard Guest, and William A. Raupp. The Regional Director sustained the challenges to the ballots of the first three named employees but held that since the ballot of Raupp had been challenged by the employer on the ground that he was not employed within the bargaining unit on the date of the election, and his discharge was al- leged to constitute a violation of Section 8(a)(3) and (1) of the National Labor Relations Act, as amended, the issue should be resolved by a hearing before a Trial Examiner. He directed, therefore, that the representation proceeding and the complaint case, involving the alleged discrimina- tory discharge of Raupp, be consolidated for the purpose of the hearing. The charge in the complaint case, alleging the dis- criminatory discharge of Raupp on or about December 3, 1966, had been filed by the union on December 16, 1966, and the Regional Director duly issued a complaint thereon on June 13,1967. Having been duly designated as the Trial Examiner, I, William Seagle, held a hearing with respect to the issues in the consolidated proceeding at Detroit, Michigan, on August 9 and 10, 1967. Upon the evidence adduced at the hearing, the oral ar- gument presented by counsel for the General Counsel at the hearing, the posthearing brief filed by counsel for the respondent, and in view of my observation of the demeanor of the witnesses, I hereby make the following findings of fact: I. THE RESPONDENT The respondent, Ray Whitfield Ford, Inc. (hereinafter referred to as Whitfield Ford), is a corporation which maintains its only office and place of business at 10725 South Telegraph Road, in the city of Taylor, State of Michigan (hereinafter referred to as the dealership) where, at all material times, it has been engaged as a franchised dealer in the retail sale and distribution of au- tomobiles and related products manufactured by the Ford Motor Company. During the year ending December 31, 1966, which is a representative period, the respondent, in the course and conduct of its business operations, purchased and caused to be transported and delivered at its Taylor, Michigan, dealership automobiles and parts, as well as other goods and materials, valued in excess of $50,000, and these au- tomobiles, parts, goods and materials were transported and delivered to its said dealership directly from points located outside the State of Michigan. During the same representative period, the respondent, in the course and conduct of its business operations, sold and distributed at its Taylor, Michigan, dealership products valued in excess of $50,000, and these products were shipped from its said dealership directly to points located outside the State of Michigan. The respondent ad- mits that at all material times it has been an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and I so find. II. THE LABOR ORGANIZATION INVOLVED 485 Automotive Salesmen's Association (A.S.A.), Inde- pendent, is , and at all material times has been , a labor or- ganization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES Whitfield Ford is entirely owned by Ray Whitfield or his family. Ray Whitfield is president and treasurer of this family corporation. The dealership has a new-car depart- ment, a used-car department, a parts and service depart- ment, a bump shop, and an office force. It is only material to note that at the time of the election on December 8, 1966, the new-car department had approximately 10 salesmen, who were supervised by one James Christie, the sales manager,3 who had the power to hire or fire em- ployees in his department without consulting with Whit- field, and that the office force was supervised by one Miles Eckler, who also had the power to hire and fire em- ployees in his department without_consulting with Whit- field. The record is very sketchy so far as the organizational effort of the union is concerned. The attempt to organize the Whitfield Ford car salesmen seems to have com- menced in June or July 1966, and also seems to have been opposed from the very beginning by Whitfield. Shortly after the union began its effort to organize the 'car salesmen Whitfield arranged to have a meeting at the dealership at 8:30 in the morning to which both the new- and used-car salesmen were invited. The meeting was ad- dressed by Whitfield, who in his talk to the salesmen stressed that if the union organized only his dealership, he would have difficulty staying competitive in the market, and that he also feared that the union would force early closing hours, and the elimination of Saturday as a work- ing day. The union seems to have been a frequent topic of con- versation at the dealership between Whitfield's meeting with the salesmen and the election. Whitfield often had lunch with one or another of the salesmen, and it is hard to imagine that the union would remain unmentioned. Christie, the sales manager, also often discussed the union with the salesmen on the sales floor of the dealer- ship, presumably when they had no customer to deal with. But there is nothing to show that any of these con- versations between Whitfield and Christie and the salesmen were anything but casual, or were not initiated by the salesmen themselves. Indeed the salesmen at- tempted to get Christie to sign up for the A.S.A. Thus it cannot be said that these conversations amounted to coercive or systematic interrogation. Counsel for the General Counsel produced only two witnesses, apart from Raupp himself, who gave testimony, which, if true would establish independent violations of Section 8(a)(1) of the Act. These two wit- nesses were Edwin S. Hughes and Michael William Parker, who prior to the election had been employed as new-car salesmen at Whitfield Ford, and both of whom had been discharged by Whitfield. Hughes testified to a luncheon conversation with Whitfield in the latter part of July 1966 in which Whitfield attempted to get him to abandon the union by telling him that he was "managea- ble [Sic] material," and that his union activities could 3 Christie became sales manager on August 15, 1966. Previously, one George Kolb had been the sales manager. 486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD have severe repercussions upon him and his family whom Whitfield knew. Hughes also testified to a conversation with Whitfield shortly after the election when he visited the dealership after being beaten up at a union meeting. According to Hughes, Whitfield on this occasion told him to get out of the A.S.A., if he did not wish to get hurt. Parker testified to a conversation with Whitfield in which the latter allegedly told him that he would be fired if he engaged in picketing. Counsel for the respondent attacks the credibility of Hughes and Parker, and, while I agree that Parker was shown to be a wholly untrustworthy witness, whose testimony should be rejected, I perceive no valid reason for rejecting the testimony of Hughes, despite his discharge by the respondent, which does not seem to me to be sufficient to discredit him as a witness. There is all the more reason for accepting his testimony in view of the vague and contradictory testimony of Whitfield in his dual capacity as a witness for the General Counsel4 and for the respondent. As a witness for the General Counsel, Whitfield testified that he could have had lunch with Hughes in August 1966 (he could not recall it and did not deny it) and that he could not recall what they may have talked about. As a witness for the respondent the next day, Whitfield flatly denied having any conversation with Hughes in the summer of 1966, or telling him that his A.S.A. activities could lead to severe repercussions, or threatening Hughes and his family. Whitfield lent further credence to Hughes' testimony, moreover, when he ad- mitted having a conversation with Hughes after he had been beaten up at the union meeting. He first placed this second conversation in the summer of 1966, and then placed it after the election, which was in December, which could hardly be part of the summer of 1966. As for what he said to Hughes on this occasion, Whitfield first testified that all he said to Hughes was: "You had better watch yourself. Those guys can get rough." But a few minutes later , when asked whether in his conversation with Hughes' family was discussed, he testified: "Well, I happen to know Mr. Hughes' family," and I said, "You've got a nice family. You owe it to your family and yourself to take care of yourself, so you can work." The "family" motive seems to have been a favorite of Whit- field in discussing the A.S.A. with his salesmen. Under date of December 1, 1966, which would be a week before the election, Whitfield mailed a circular letter to the salesmen in which he sought to persuade them to vote against the union. He pointed out to them that in collective bargaining he could refuse to sign any contract embodying unreasonable union demands, and re- minded them that the union could bargain away their present benefits. He also reminded them that if he did not agree to a contract, the only step that the union could take would be to strike, in which event he could hire replace- ments , and their jobs would be gone. All the union was after, he concluded, was their dues. Subsequently, when a strike did materialize,5 Whitfield promoted one of the new-car salesmen, whose name was Wayne D. Allen, and who had refused to join the strikers, although he had been the union observer at the election, to a group leadership, which brought him increased compensation by way of over-riders on the sales made by the other salesmen. There is no doubt that Whitfield was opposed to having his salesmen belong to the A.S.A. However, neither Whitfield's speech nor his promotion of Allen is charged to have been an unfair labor practice.6 The principal un- fair labor practice that is charged in the complaint, how- ever, is the discriminatory discharge of William A. Raupp, the new-car salesman, who had joined and sup- ported the A.S.A. on December 3, 1966, 5 days before the scheduled election. Raupp was not discharged by Whitfield but by James Christie, the new-car sales manager, who informed his employer of the discharge of Raupp only after he had made and carried out the deci- sion. During the week ending December 3, 1966, Christie invited three of the salesmen to have lunch with him. The first two salesmen to whom such invitations were ex- tended were named Bob Brown and Buford Lewis. The third salesman was Raupp, who, as the time for lunch ap- proached on December 2, which was a Friday, was asked by Christie to have lunch with him. The invitation was unusual for Christie had never before asked Raupp to have lunch with him in the period of over a year that he had been employed at Whitfield Ford. Christie did not take Raupp to lunch, moreover, to any eating place right across the street from the dealership. He made it manifest that the occasion was very special by taking Raupp to a restaurant in the Melody Lane Motel which was located 10 to 12 blocks from Whitfield Ford, and which Christie described as "nice." The check for both Christie and his guest came to a sum between $3 and $4, and Christie paid it but charged it to Whitfield Ford as a company expense. So far as the conversation between Christie and Raupp at the lunch is concerned, the testimony of the participants is utterly irreconcilable but I resolve the conflict by crediting the testimony of Raupp. Christie failed to in- spire confidence either by his demeanor when testifying, or by the nature of the testimony which he gave. As soon as Christie and Raupp were seated, the sales manager started to talk about the A.S.A. He told Raupp that Whitfield was "shaken up about the union," and asked Raupp what he personally thought about the A.S.A. Raupp's reply to this question was that he was for the union 100 percent, and when Christie asked him why he was for the union, Raupp replied that it was because of the benefits which he hoped to derive from his union membership. In the course of the conversation about the union , Christie related to Raupp how the union had tried to organize Bob Ford's, a dealership where he had previ- i He was called as witness by counsel for the General Counsel under section 43(b) of the Federal Rules of Civil Procedure. The strike began on March 1, 1967. Counsel for the General Counsel also contended' vehemently at the hearing that the respondent's antiunion animus or hostility was demon- strated by its designation of Miles Eckler, its office manager, as its ob- server at the election. It was Eckler who challenged Raupp. I do not at- tach any.particular significance to Eckler's role. It is provided in Section 102.69 of the Board's Rules and Regulations : "Any party may be represented by observers of its own selection, subject to such regulations as the regional director may prescribe." While in its decisions in election cases, the Board has discouraged the designation of supervisory em- ployees per se, being left to the sound discretion of the Regional Director. See, for instance, Harry Manaster & Bro., 61 NLRB 1373; Burrows & Sanborn, 84 NLRB 304; Parkway Lincoln-Mercury Sales, 84 NLRB 475; The Ann Arbor Press, 88 NLRB 391; Peabody Engineering Com- pany, 95 NLRB 952. Before a judgment may be reached in the present case, the surrounding circumstances must be fully established , and this was not done. The Regional Director did not recommend that the election. be set aside because Eckler had been designated as an observer. On the other hand, the contention of counsel for the respondent that Whitfield cannot be regarded as opposed to the A.S.A. because he hired Pappas with full knowledge that he was a member of the A.S.A. is contrary to the evidence of Pappas whose evidence I credit. RAY WHITFIELD FORD, INC. ously worked, but where the union's efforts had failed. Christie also expressed the opinion that it would fail at Whitfield Ford. He went on to counsel Raupp to think of his family but the latter remarked that he was thinking of his family when he joined the union, for he expected to derive some benefits by being a member of the union. Christie then warned Raupp that if he persisted in his union activities he would have to find another line of work, for no automobile company would hire him if it knew of his record of union activities. Raupp replied that a good automobile salesman could always get a job. Christie then asked Raupp how he intended to vote in the election, and when Raupp declared that his vote would definitely be a "yes" vote, Christie threatened that the "yes" votes would be weeded out of the organization (these were his exact words). As they finished their lunch, Christie remarked to Raupp that he appreciated his calling a spade a spade , but added that: "I know you come in late in the morning but you stay every night until it is time to turn the key." This referred to the fact that Raupp was not in- frequently late in coming in to work in the morning but tardiness was quite common among the automobile salesmen. There was supposed to be a schedule of regular working hours, which were 9 a.m. to 9 p.m. on Mondays, 8:30 a.m. to 9 p.m. on Tuesdays , 9 a.m. to 6 p.m. on Wed- nesdays, 8:30 a.m. to 9 p.m. on Thursdays, and 9 a.m. to 6 p.m. on Fridays and Saturdays. This schedule of work- ing hours was, however, largely honored in the breach by the salesmen. They often came in late even on Tuesdays when there were sales meetings , despite the fact that they would miss part of the meeting which it was desirable for them to attend. No salesman had ever been fired for tardi- ness , however, and the only penalty exacted for being tardy was a voluntary contribution to what was known as the "late fund." These contributions ran from a dollar up, and the money in the late fund was used to finance the an- nual Christmas party . It appears , however, that in the summer of 1966-it was either in June or July-the late fund was abolished when George Kolb, who was then still sales manager, began levying fines of $5 and even $10, and Raupp and another salesman by the name of Jim Paver complained to Whitfield. Christie in his testimony about the late fund enumerated no less than 8 out of the 10 salesmen who, at one time or another had contributed to the late fund. In fact Christie himself had made a $5 contribution to the late fund before it had been abolished. Raupp reported for work at the dealership at about 9:10 a.m. on Saturday, December 3. He parked his car on the side lot, right alongside the showroom window, and entered the dealership. He found Christie standing in the sales office door. Indeed, Christie was watching out for Raupp's arrival, and motioned to the latter to come over. Raupp walked over to where Christie was standing, and the latter told Raupp that he was terminating his employ- ment. Raupp asked : "What for?" and Christie replied: "For being late." Raupp did not leave the dealership im- mediately because he had to wait for transportation home. While he was waiting, at least two other salesmen reported for work. These were David T. Pappas, who came in about 10:30 a.m. and Wayne D. Allen, who came in about 11:30 a.m. The latter testified, however, that he had telephoned to Christie and obtained permission to come in later. Of course, neither Pappas nor Allen was discharged by Christie. In attempting to explain Raupp 's discharge, Christie testified that his purpose in inviting Raupp to have lunch 487 with him had nothing to do with the union situation. Ac- cording to Christie, business was very bad at the end of November 1966. Sales in the automobile industry were down from 18 to 22 percent and sales at Whitfield Ford were down about 33 percent . According to Christie, he decided to have lunch with Raupp , who had fallen down badly in his individual sales performance , in order to "get him on the ball." Thus, Christie testified on direct ex- amination: Q. What did you say and what did he say [at the lunch]? A. Well, I started to point out the decline in our sales picture , and we would have to do something as a group and individually to bring it back up , and his individual performance was not what I thought was up to par, and I thought we had better discuss it and see if we could get him on the ball , so to speak. And at that point he interrupted me and said , if I had him there to talk about the union he was a "yes" vote, and he didn't give a damn who knew it. Q. Was anything else said? A. Yes. I said the union was of no consequence to me one way or the other. I was interested only in my job, which was selling cars . And since he was working for me that he should get on the ball and do things that he had done when he had good months and sold cars . And I talked about mailing programs and contacting people, and I told him if he went back, remembered what he had done and got back on a pro- gram like that, he could increase sales and bring them back up where they belonged , which was what I wanted. Q. Was anything else said? A. He indicated that he hadn't been doing exactly the amount of work that he should be doing. He agreed that sales were down , and he said he would try harder. And I elicited a quota from him for the month of how many cars he would try to sell and how many trucks he. would try to sell, which would be satisfactory to he and I. Q. Do you remember what that quota was? A. It was twelve cars and two trucks , I'm pretty sure. Q. Was anything else said that you can recall? A. Well, I pointed out to him one of the reasons I thought his production wasn't as it should be. He had a habit of coming in to work late, showing a lack of interest in the job , and I thought he should be com- ing to work on time , and this would be a good start, and I said to him , "Bill, do yourself and myself a favor, and start getting to work on time , the way you should." And he promised me that he would. Q. Was anything else said , that you recollect? A. I believe that ended our conversation. According to Christie, Raupp did not get to work on Saturday morning until 9:30, rather than 9 : 10. Asked whether he was waiting for Raupp , Christie testified: "I was watching for him." And he testified further that "since he had come in late and chose to disregard a directive" that he had given him , he had no alternative but to discharge him, whereupon Raupp remarked that he felt "this was coming" and he should have left the dealership before it happened. During his cross-examination, Christie was asked whether he had warned Raupp the previous day that he would be fired if he were ever late again, and at first he replied flatly in the negative but asked again whether he had ever warned Raupp that he 488 'DECISIONS OF NATIONAL LABOR RELATIONS BOARD would be fired if he were late, he replied : "I told him that I would have to take action" [emphasis supplied]. Finally, on redirect examination , when he was asked again whether he had warned Raupp, he replied: "I didn't tell him he would be fired , but I told him if he didn't start coming in to work on time, the way he should I would be forced to take drastic action" [emphasis supplied]. Christie had testified during his direct examination that all he had said about the union during his lunch with Raupp was that it was no concern of his, and then only when Raupp confessed that he was a "yes" vote. During his cross-examination , he revealed however, that he must have said considerably more than that. Asked specifically whether he had said anything to Raupp "about his family, his future and his security," he testified: "I could very well have said- as a matter of fact, I do believe saying to him that he was married and had two children , and he said yes, that he was the sole support of them, and certainly the type of sales he had in November it was hard to sup- port a family on that kind of money , and if he would up- grade his sales by doing the work that he should." Asked whether in saying this he did not have the union in mind, Christie denied it but he was confronted with a statement in his prehearing affidavit which was as follows: "I in- dicated to him I wanted the cars sold , regardless of what was going on. I had in mind the union efforts, of which everyone was aware [emphasis supplied]. Apart from any consideration of demeanor , Christie's account of his lunch with Raupp strains credulity. It is hard to believe that he would have chosen such a convivi- al occasion as lunch in a nice restaurant at some distance from the dealership if his purpose were to take Raupp to task for slackening in his efforts , and to urge him to turn over a new leaf. The natural place for such a showdown would be Christie's office in the dealership. If Christie wanted to assure a degree of privacy, which he might not have had in his office, the more likely explanation of his behavior is that he wanted to have a conversation with Raupp in which he would be able to say what, he was anx- ious, nobody should overhear. Moreover, what Christie claimed to be the subject of his conversation with Raupp at the lunch only inspires further disbelief. There is nothing to show that Raupp stood in need of a talking to, or that talking to him to "get on the ball," would do any appreciable good. Raupp was not personally responsible for the decline in sales at the dealership , which only reflected a slump in business in the automobile industry as a whole. As a matter of fact, he was a very good new- car salesman , and almost every month he exceeded his target sales schedule. None other than Whitfield, who did not himself discharge Raupp , so testified. Even if it were true that Raupp came in late more frequently than any other salesman , this , obviously, had not affected his per- formance, and there would have been no point in making an issue of it. Even in his own testimony about what he said to Raupp at the lunch , Christie mentioned Raupp's own tardiness last, more or less as an afterthought. A disproportionate amount of the record in the present case is taken up with the questions whether the new-car salesmen were required to adhere strictly to the long, scheduled hours , and whether some of them , including Raupp , were habitually more tardy than others. It is ap- parent from the testimony as a whole that there was a schedule of hours but that lateness was common. Probably the basic reason for this was that coming in early in the morning was not important to the proper per- formance of an automobile salesman's job. Since the new- car salesmen themselves were compensated only on a commission basis, their employer was not paying them, moreover, for lost time when they came in a little late. The mere fact that the new-car. salesmen were not required to punch a timeclock is in itself a clear indication that time was not regarded as of the essence. Another in- dication of this is the failure of the management at Whit- field Ford to keep any records of tardiness , except during the period that the late fund was in existence , and this was not so much a record of tardiness as of amounts con- tributed. But even this record the respondent failed to produce , and contented itself with inviting its witnesses to make random guesses at the comparative lateness of Raupp and other employees. Christie testified at first that Raupp and another salesman by the name of Jim Paver were the largest contributors to the late fund , and that they were about even in this respect , but later in his testimony Christie relegated Raupp to second place. But after the late fund had been abolished and after Christie had taken over as new-car sales manager , he had held a meeting with the new-car salesmen , and, according to his own testimony , he had told them at this meeting that he was "wiping the slate clean." Asked about Raupp's tardi- ness in the months immediately preceding his discharge Christie made it evident that he was no better at this guessing game than any other witness. Actually the extent of the tardiness of Raupp, or of any other of the new-car salesmen , presents an almost wholly irrelevant issue, for it was Christie's contention that he fired Raupp not for mere tardiness but for an aggravated form of tardiness , consisting of his disregarding his "directive" not to be late for work the very next working day after his directive had been issued - in other words, because of Raupp's blatant defiance. If I could believe Christie's testimony, I could conceivably find that he was justified in discharging Raupp, notwithstanding that tardi- ness was quite common at the Whitfield Ford dealership. Not believing Christie's testimony, however , the conclu- sion seems to me to be inescapable that Christie discharged Raupp when he learned during his conversa- tion with the latter at lunch on December 2 that he represented a sure "yes" vote for the union. There is nothing to show that Raupp sparked the union drive or was otherwise prominent in the union or that either Christie or Whitfield believed that he was principally responsible for the union situation. The bargaining unit was so small, however, that it must have been evident to everyone that the election might be decided by a single vote, which indeed turned out to be the case. I am con- vinced that Raupp was discharged to influence the result of the election. Counsel for the respondent seeks to make much'of the fact that counsel for the General Counsel failed to call as witnesses Bob Brown and Buford Lewis whom Christie also took to lunch . "Assuming Christie was on a cam- paign to intimidate voters ," counsel for the respondent asks, "where were Brown and Lewis at the hearing in the instant case?" The answer to this question lies in its er- roneous assumption. I have not assumed that Christie was "on a campaign to intimidate voters ." I have as- sumed that his object was to intimidate only one voter, namely Raupp. The record is devoid of evidence as to what Christie' s purpose was in lunching with Brown and Lewis, and it may or may not have had anything to do with the union situation. Indeed the record does not even show whether Brown and Lewis were prounion or anti- union or whether they are still employed by the respondent RAY WHITFIELD FORD, INC. 489 and available as witnesses, either to the General Counsel or to counsel for the respondent. In these circumstances it would be pointless to speculate as to what their testimony would have been if they had been called as wit- nesses. fluence the result of a forthcoming election , the respond- ent has committed unfair labor practices affecting com- merce, within the meaning of Section 8(a)(1) and (3) of the Act. RECOMMENDED ORDER IV. THE REMEDY In view of the serious nature of the violation involved in the discharge of William A. Raupp, I shall recommend a broad form of cease-and-desist order, restraining the respondent from infringing upon any of the rights guaran- teed to employees by Section 7 of the Act. To remedy the discharge of William A. Raupp, I shall also recommend, by way of affirmative relief, that the respondent offer to him immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges previously enjoyed by him, discharging, if necessary, any new employee hired subsequent to the date of his discharge in order to replace him. I shall also recommend that the respondent make William A. Raupp, whole for any loss of pay he may have suffered by reason of his discharge by payment to him of a sum of money equal to the amount which he would normally have earned as wages from the date of his discharge to the date of the respondent's offer of reinstatement, less his net earnings during the said period. The amount of backpay is to be determined in accordance with the formula prescribed in F. W. Woolworth Company, 90 NLRB 289, and interest is to be computed on the amount so determined in ac- cordance with Isis Plumbing & Heating Co., 138 NLRB 716. CONCLUSIONS OF LAW 1. The respondent, Ray Whitfield Ford, Inc., is an em- ployer engaged in commerce, or in an industry affecting commerce, within the meaning of Section 2(6) and (7) of the Act. 2. Automotive Salesmen's Association (A.S.A.), In- dependent, is a labor organization within the meaning of Section 2(5) of the Act. 3. By coercively interrogating two of its employees concerning their union activities and sympathies; by inti- mating that their union activities could have severe reprecussions on them and their families; by threatening to weed out prounion employees; by questioning one of its employees about how he intended to vote in the forthcoming election; and by threatening to blackball him in the automobile industry if he continued his union ac- tivities, the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed to them in Section 7_ of the Act, and has thereby committed unfair labor practices affecting com- merce within the meaning of Section 8(a)(1) of the Act. 4. By discharging William A. Raupp, one of its em- ployees, on December 3, 1966, because he had engaged in union or other concerted activities, and in order to in- Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I recommend that the respondent, Ray Whit- field Ford, Inc., its officers, agents, successors, and as- signs, shall: 1. Cease and desist from: (a) Interrogating any of its employees coercively con- cerning their union activities and sympathies; intimating to any of its employees that their union activities could have severe repercussions on them and their families; threatening to weed out prounion employees; questioning any of its employees concerning how they intend to vote in any forthcoming election; or threatening to blackball any of its employees in the automobile industry if they continue their union activities. (b) Discouraging membership in Automotive Salesmen's Association (A.S.A.), Independent, or any other labor organization of its employees, by discharging any of its employees, or in any other manner, discriminat- ing against them with respect to their hire or tenure of em- ployment or any term or condition of their employment. (c) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed to them in Section 7 of the Act. 2. Take the following affirmative action in order to ef- fectuate the policies of the Act: (a) Offer to William A. Raupp immediate and full rein- statement to his former or substantially equivalent posi- tion, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay he may have suffered by reason of the discrimination against him in the manner and to the extent set forth in section IV of this Decision entitled "The Remedy." (b) Notify the above-named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (c) Preserve and, upon request, make available to the Board, or its agents, for examination and copying all payroll records and other data necessary to give effect to the backpay requirement. (d) Post at its dealership at 10725 South Telegraph Road, city of Taylor, State of Michigan, copies of the at- tached notice marked "Appendix."7 Copies of said notice, on forms provided by the Regional Director for Region 7, after having been duly signed by the respond- ent's representative, shall be posted by the respondent immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in con- spicuous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by the respondent to assure that said notices are not altered, defaced, or covered by any other material. ' In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Ap- peals Enforcing an Order" shall be substituted for the words "a Decision and Order." 490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (e) Notify the said Regional Director, in writing, within 20 days from the date of this Decision , of what steps respondent has taken to comply herewith. 8 IT IS ALSO RECOMMENDED that the challenge to the bal- lot of William A. Raupp be overruled , and if it is found to have been cast in favor of the petitioning union , that the said union be certified as the duly designated bargaining agent of the employees in the appropriate bargaining unit. 8 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read - "Notify said Regional Director, in writing, within 10 days from the date of this Order , what steps Re- spondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Ex- aminer of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended , we hereby notify our em- ployees that: WE WILL NOT coercively interrogate our em- ployees concerning their union activities and sym- pathies; nor intimate to them that such activities could have severe repercussions upon them and their families ; nor threaten to weed out prounion em- ployees; nor question our employees as to how they intend to vote in any Board-conducted election; nor threaten to blackball any of our employees in the au- tomobile industry if they continue their union activi- ties. WE WILL NOT discourage membership in Automo- tive Salesmen's Association (A.S.A.), Independent, or in any other labor organization of our employees, by discriminating with respect to the hire or tenure of their employment or any term or condition of their employment. WE WILL NOT in any like or related manner inter- fere with, restrain, or coerce our employees in the ex- ercise of the right to self-organization , to form labor organizations , to join or assist the above-named or any of their own choosing , and to engage in any other concerted activities for the purpose of collective bar- gaining or other mutual aid or protection, or to refrain from any and all such activities. WE WILL offer to William A. Raupp immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges and make him whole for any loss of pay he may have suffered by reason of our discrimination against him. All our employees are free to become or remain, or to refrain from becoming or remaining , members of any labor organization as condition of employment as authorized by Section 8(a)(3) of the Act. RAY WHITFIELD FORD, INC. (Employer) Dated By (Representative) (Title) Note: We will notify the above-named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement upon- application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. 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. If employees have any question concerning this notice or compliance with its provisions , they may communicate directly with the Board's Regional Office, 500 Book Building, 1249 Washington Boulevard , Detroit , Michigan 48226 , Telephone 226-3244.