Colonial Lincoln Mercury Sales, Inc.

54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Colonial Lincoln Mercury Sales, Inc. and Retail, Wholesale and Department Store Union, Council of Georgia, AFL-CIO. Cases 10-CA-8865, 10-CA-8901, 10-CA-8968, and 10-RC-8619 May 24, 1972 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND KENNEDY On December 2, 1971, Trial Examiner Herbert Silberman issued the attached Decision in this proceeding. Thereafter, the 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 Trial Examiner's Decision in light of the exceptions and brief and has decided to affirm the Trial Examiner's rulings, findings, and conclusions' 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 Trial Examiner and hereby orders that Respondent, Colonial Lincoln Mercury Sales, Inc., Atlanta, Georgia, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order. It is further ordered that the election in Case 10-RC-8619 be, and it hereby is, set aside and that proceeding is herewith dismissed. i In view of the other grounds relied on by the Trial Examiner in the finding of objectionable conduct, we find it unnecessary to pass on the issue as to whether the Employer's intrusion into the conduct of the election was of such nature as would independently furnish a basis for setting aside the election, in this connection, however, we disavow the Trial Examiner's gratuitoi.s observations with respect to conducting an election on the Employer's premises TRIAL EXAMINER'S DECISION AND REPORT AND RECOMMENDATIONS AS TO OBJECTIONS TO AN ELECTION STATEMENT OF THE CASE HERBERT SILBERMAN, Trial Examiner: These consolidat- ed proceedings were heard in Atlanta, Georgia, on July 13, 1 The complaint was amended at the hearing to reflect the name of the Respondent as it appears in the caption 2 It was stipulated at the hearing that Willie Randell, who also is named in the complaint as one of the alleged discnminatees, was reemployed by Respondent promptly upon his application for reinstatement and therefore Respondent did not unlawfully discriminate against him 14, and 15, 1971. Following the close of the hearing briefs were received from the General Counsel and the Respon- dent which have been carefully considered. Based on charges and amended charges filed on various dates between February 18 and May 11, 1971, by the above-named Umon, an order was issued on June 2, 1971, consolidating the three above-numbered complaint cases, and a complaint therein was issued alleging that the Respondent' has engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended. In substance, the complaint, as amended at the hearing, alleges that the Respondent unlawfully discharged Lex Jackson on February 12, 1971, E. L. Abbott on February 22, 1971, and Jerry R. Franklin on March 1, 1971; that on March 5, 1971, employees of Respondent engaged in a strike which was caused and prolonged by the Company's unfair labor practices; that on March 10, 1971, 15 of the striking employees applied for reinstatement and Respondent unlawfully has refused to reinstate them to their former employment; 2 that since February 11, 1971, the Union has been the majority representative of an appropriate unit of Respondent's employees and since that date Respondent unlawfully has refused to bargain collectively with the Union as such representative; and that by reason of the foregoing and other conduct set forth in the complaint Respondent has coerced, restrained, and interfered with its employees in the exercise of the rights guaranteed them by Section 7 of the Act. Respondent duly filed an answer denying that it had engaged in the alleged unfair labor practices. On February 11, 1971, the Union filed a petition for Certification of Representative in Case 10-RC-8619. Thereafter a Stipulation for Certification Upon Consent Election was entered into which was approved by the Regional Director on March 8, 1971. Pursuant thereto an election was conducted on April 16, 1971, among the employees in the following unit: All employees in the service department of the Company's Auto Sales and Service Agency in Atlanta, Georgia, including mechanics, assistant mechanics, new car get-ready, used car make-ready, body shop employees, plant clerical employees, and parts depart- ment employees, but excluding all office clerical employees, professional employees, guards, and super- visors as defined in the Act. The tally of ballots shows that, of approximately 66 eligible voters, 4 valid ballots were cast for the 'Petitioner, 28 valid ballots were cast against the Petitioner, and 32 ballots were challenged.3 There were no void ballots. On April 22, 1971, the Petitioner filed timely objections to the election. After an investigation of the objections, the Regional Director concluded that the issues raised by the objections relate to and in part overlap the allegations of the complaint in the above-numbered cases. Accordingly, the Regional Director issued an order, dated June 3, 1971, directing a hearing 3 The Regional Director on June 3, 1971, issued an order directing that a hearing shall be held to determine the issues raised by the challenges to the aforesaid 32 ballots At the hearing the Petitioner concluded that even if all challenges were resolved in its favor it still would not have a majority of the votes cast in the election . Accordingly, Petitioner waived its right to litigate the issues with respect to the 32 challenged ballots 197 NLRB No. 3 COLONIAL LINCOLN MERCURY SALES, INC. pursuant to Section 102.69(h)(1) of the Board's Rules and Regulations to resolve the issues raised by the Petitioner's objections and further ordered that Case 10-RC-8619 shall be consolidated with the above-numbered three complaint cases for the purposes of hearing, ruling, and decision by a Trial Examiner and that thereafter Case I0-RC-8619 shall be transferred to and continued before the Board. Upon the entire record in this proceeding, and from my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Colonial Lincoln Mercury Sales, Inc., a Delaware corporation, is engaged in the retail sale and the servicing of automobiles at its place of business in Atlanta, Georgia. During the calendar year preceding the issuance of the complaint, which period is representative of Respondent's operations, the Company's gross volume of business was in excess of $500,000 and it purchased and received supplies at its place of business in Atlanta, Georgia, valued in excess of $50,000 directly from suppliers located outside the State of Georgia. I find that the Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Retail, Wholesale and Department Store Union, Council of Georgia, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background The events herein followed a self-organizational effort on the part of Respondent's service employees which began in February 1971. Respondent operates a franchise automo- bile service agency. Its principal management officials are Ben Brady, president; William A. Hanke, vice president; and Al Stevens, general sales manager. Subordinate to these three are the following supervisors: George Eubanks, service manager; Earl Tarvin, body shop foreman; and Skip C. Lemke, assistant body shop foreman.4 Early in February 1971, the Union's business representa- tive, James H. Dickinson, met with John R. Herring and the latter's son, John T. Herring, Jr., both of whom worked for the Company. Dickinson was informed that the Company's employees wanted a umon. After discussion about that subject and related matters, Dickinson gave the two men authorization cards and instructed them regard- ing the purpose and the use of the cards. Later on the same day John T. Herring, Jr., telephoned Dickinson and advised him that the cards were signed. Dickinson called a meeting of the Company's employees, which was to be held in the union hall, for the evening of February 10. About 22 4 A contested issue is whether Ray King, who is responsible for new cars being made ready for delivery, is a supervisor I find, for reasons stated below, that he is a supervisor 55 employees attended. During the meeting Dickinson prepared a letter addressed to Mr. Brady which reads as follows: Each of us whose names are listed below have freely and voluntarily requested, The Retail, Wholesale & Department Store Union AFL-CIO, to represent us in all matters pertaining to wages, hours of work and other conditions of employment. We respectfully request your recognition in accordance with Section 7 of the National Labor Relations Act. This letter was signed by 21 of the Company's employees. Also, a committee of employees was elected composed of Larry H. Lawrence, chairman; John T. Hemng, Jr., vice chairman; and Walter R. Page. The next morning Dickinson and another union repre- sentative, Herschel Holmes, went to the plant to see Brady. They were informed that Brady was busy and would not be able to meet with them until 2:30 in the afternoon. When Dickinson returned to his office he received a telephone call from a Mr. Phillips, an attorney, who informed Dickinson that he represented the Company and that the Company would not recognize the Union or meet with the Union. Dickinson responded that in such event Phillips would meet with them "on the street . . . because these people were determined to have a Union." Before the telephone conversation concluded a meeting was arranged for 2:30 p.m. that afternoon at the Company's office. Phillips informed Dickinson that because of other commit- ments he would not be present, but that another member of his firm would attend. The meeting was held as scheduled. Present at the meeting and representing the Union were Dickinson, Holmes, and the three members of the shop committee; those representing the Company were Brady, Hanke, and William Ford, an attorney. At the meeting Dickinson stated that the Union represented a majority "of the people" and wanted recognition. Dickinson offered to demonstrate the Union's majority by showing the authorization cards which he had or, if the Company preferred, by calling the employees into the room and having a show of hands. Ford responded that the Company would not recognize the Union. After further discussion, Ford stated that the Company might be willing to enter into an agreement for a consent election. This was what was ultimately done. Before the union representatives left the meeting, Dickinson tendered the employees' letter, described above, to the Company's representatives. Each of them in turn refused to accept it. Dickinson, neverthe- less, left a copy of the letter on a desk when he left the premises. The Company learned about the organizational drive on the night of February 10, when George Eubanks observed employees dressed in street clothes leaving early. He asked what was going on and was told that they were going to a union meeting. Eubanks informed both Hanke and Brady of this development.5 Hanke testified that, prior to the February 11 meeting with the union delegation, Attorney Ford had instructed him and Brady not to look at any list showing names if presented by the union representatives. Ford explained to 5 Hanke testified that Eubanks reported to him and to Brady that the men had been signing union authorization cards and that he understood they were going to a meeting that night 56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD them, according to Hanke, that if in the future it was necessary to discipline any man whose name appeared on the list the Union might allege that the action was in reprisal for the individual's union activity. Accordingly, neither he nor Brady nor Ford looked at the document when Dickinson offered it to them. After the union group left the premises, Hanke summoned Mrs. Meehan, one of the office clerical employees, who is also a notary public. She was instructed to bring with her two envelopes. Ford informed her that the piece of paper (the letter left by Dickinson) lying on the desk had not been looked at, and she was told not to read it. She then was instructed to fold the letter and insert it in the smaller envelope and seal the envelope, to prepare a statement as to what had occurred; and to place her statement and the smaller envelope in the larger envelope and to retain the material in her possession. The envelopes and their contents, in the form described, were delivered to a Board representative during the administrative investigation of the instant proceedings. The same day, February 11, Brady called the employees together and spoke to them in the service department. His message was direct and uncomplicated. He informed them that "he didn't feel like the company needed a union in there and that he would fight it with everything he had to the best of his ability and he didn't want a shop with a Union in there."6 This statement is not alleged to be an unfair labor practice but it demonstrates Respondent's clear hostility towards its employees' self-organizational activities. B. Restraint, Coercion, and Interference Jerry R. Franklin testified that about 8:30 on the morning of February 11 Foreman Tarvin asked him whether he had attended a union meeting the night before. When Franklin acknowledged that he had, Tarvin asked who else was present from the body shop. Franklin responded that everybody had attended except Willie, the porter, and one of the painter's helpers, Albert Sims. According to Franklin's further testimony, several days later, about February 16, Tarvin again asked him whether he had been at the union meeting the night before. When Franklin admitted that he had, Tarvin asked whether they had lost any members and Franklin answered that they had not but had gained some.? Walter R. Page testified that on February 11 he had an extended discussion with Foreman Tarvin about the Union. The conversation took place in Tarvin's office after the 2:30 p.m. meeting with management which Page 6 The foregoing is quoted from the uncontradicted testimony of Edward L. Abbott On cross-examination , Respondent's counsel asked Abbott ,whether "what Mr. Brady said was I am going to oppose the unionization of this dealership just as much as the law permits " Abbott answered, "That sounds like what he said " r Tarvin admitted that once or twice he asked Franklin if the latter had attended union meetings However, Tarvin denied that he asked Franklin to give him the names of other employees who attended According to Tarvin, if he had wanted to know who else had been at the meetings, "I would [have] ask[ed ] one of them " Tarvin also denied that he asked Franklin whether the Union had lost any members . Tarvin was not a candid or forthright witness To the extent that his testimony differs from Franklin's, I credit Franklin 8 Tarvin testified that on February I I he had a conversation with Page in his office According to Tarvin, "I just asked him point blank how he felt attended. According to Page, Tarvin said that "the front office" had asked him to talk with Page in an effort to get Page to change his mind about his union activities. Page responded that he would not change his mind. Tarvin said "that was what he was supposed to do and that was it." There was further conversation between the two during which Tarvin asked Page why he wanted a union, if Page thought the union was worthwhile and would do him any good, what the purpose of the union was, and similar questions. Also, Tarvin asked Page how many employees had joined the Union and who had attended the meeting the previous night. Page further testified that almost every day there was some discussion between him and Tarvin about the Union. Tarvin would ask how the Union was coming, had Page changed his mind, and questions of like nature.8 Another incident implicating Tarvin concerns a conver- sation between Tarvin and John F. Long, an adjuster for Preferred Risk Insurance Company, in Tarvin's office about February 15, 1971. Body shop employees were permitted free access to Tarvin's office and, according to employee David L. Brown, he overheard portions of the conversation.9 Long told Tarvin that until the umon question is settled he was not going to refer more work to the Company because he did not wish to risk having cars tied up in the event of a strike. According to Tarvin, "I think at the time, David [Brown] was probably listening, and I told him it was probably going to be slow around, you know, until things got settled down." At or about the same time Tarvin told Brown about Tarvin's experiences when he worked for a union shop in Chicago. Tarvin said that if the Union came in and "if it was like Chicago" the employees would be taken off commission and would be put on a hourly wage, would be required to work 5 days a week from 8 a.m. to 5:30 p.m., and would not be permitted to leave early when they finished their work, so that if they had nothing else to do they would have to push a broom. No unlawful conduct can be attributed to Respondent by reason of the statements made by Long in the course of a business discussion with Foreman Tarvin, since Long was a customer, not an employee or agent of the Company. Tarvin's succeeding comment to Brown, who by chance overheard the conversation with Long, that "it was probably going to be slow . . . until things got settled down" was not an unnatural reaction to Long's pro- nouncement and also was not an unreasonable assessment of the probable effect on the Company 's business. Similarly, Tarvin's experiences when he worked in a umon shop in Chicago were told to Brown not as a direct or the Union might benefit him, or benefit the company as a whole " As to whether he had asked Page how many employees had joined the Union, Tarvin testified, "I don't remember if I did I don't think I did " Tarvin also acknowledged that he had had several conversations with Page about the Union 9 Brown, Tarvin, and Long testified about the incident. The significant difference among their respective versions is whether certain statements which Brown attributed to Tarvin were made by Tarvin or by Long The testimony of Long, corroborated by Tarvin, was that Long, not Tarvin, made the statement that because of possible union difficulties Long might have to stop sending cars to the Company for repair It is more plausible that Long rather than Tarvin would have made such a statement Accordingly, the version of the conversation which I summarize above is based on the testimony of Long COLONIAL LINCOLN MERCURY SALES, INC. implied threat but as reminiscences prompted by the situation which was developing at the Company. Contrary to General Counsel, I find the described incidents involving Brown do not constitute any unfair labor practices on the part of Respondent. There were two other incidents which involved Tarvin, one of which occurred about February 26. Walter Page was talking to Jerry Franklin while the latter was sitting and smoking, and, according to Page, Tarvin came by and said, "You had better get off your rear because you are not Union yet." Franklin corroborated Page's version of this .mcident.10 However, Tarvin testified without contradiction that the men knew he was kidding and they just continued smoking. I find nothing unlawful in this incident. The second incident occurred about March 1 and involved employees David Brown and Carroll Wheeler. According to Brown, the two were talking with Tarvin in the body shop when Tarvin inquired what they would do if the Union did not come in. Brown answered that "we will all be gone, is there any doubt in your mind?" Tarvin said, "No." Brown then remarked that he did not think Mr. Brady could fire all the men at once because it would shut down the Company and Tarvin responded, "You want to bet?" According to Tarvin, "One of them said if they all walked out . . . what would Colonial Lincoln Mercury do, you couldn't replace us all and I said, do you want to bet, they got along before we came here." I find Tarvin's version of this conversation more credible than Brown's. Contrary to General Counsel, I find Tarvin's remark does not constitute an implied threat to discharge the employees who supported the Union. The remaining allegations of coercion and interference, apart from the discharges, relate to changes in conditions of employment which were instituted after the Union's organizational campaign began. One of these concerns limitations imposed on employees meeting and talking together. The Company had no restrictions on employees visiting with one another during working hours so long as the privilege was not abused. This practice was changed when the following notice, dated February 19, 1971, was posted: It has come to my attention that in recent weeks, there is entirely too much "visiting" by employees during working time in areas where they have no business to conduct. As a result, production has dropped. In the future, unnecessary gatherings not related to work will not be tolerated. Employees who abuse these privileges will be subject to disciplinary action. 10 According to Tarvin the persons involved in the incident were Franklin and David Brown rather than Walter Page I find Tarvin was in error in this respect 11 William A Hanke presented the Company's production figures for several months including the period following February 10 when the organizational activities began These statistics, according to Respondent, show that employee output in the service department dropped with the commencement of the union activities Upon review of the evidence, I find that Respondent has not proved that fact Fluctuations in work output /s/ BEN BRADY BEN BRADY 57 Respondent's explanation for the change was that the Union's organizational drive was accompanied by an increase in time spent by the employees visiting one another which seriously affected production. Service Manager George Eubanks and Body Shop Foreman Tarvin testified in general terms that following the first union meeting on February 10 there was more visiting among the employees than there had been previously. Assistant Body Shop Foreman Skip Lemke was more specific. He testified that after February 9 John R. Hemng came into the body shop more frequently than he had done previously. According to Lemke's further testimony, he had no recollection of ever seeing Herring in the body shop before February 10, but thereafter he saw Hemng in the body shop "two to three, possibly four times." Eubanks also testified that the increased visiting caused a drop in production.11 I find that the Company has not established that there was any reduction in work output following February 10 when the employees began their self-organization activi- ties. However, the Company's rule was a reasonable exercise of a management prerogative. Worktime is for work. Even if the stimulus for the rule was the employees' union activities, Respondent was not unreasonable in anticipating that "visiting" among the employees might increase to the detriment of production. The evidence does not support an inference that the rule was adopted to promote a discriminatory purpose (i.e., solely to stifle the Union's organizing campaign) rather than to maintain production and discipline during working hours. I find therefore that the rule against "visiting" did not interfere with employees' statutory nghts.12 Similarly, I find that John R. Herring's testimony that about February 16 Hanke accused him of holding meetings in the body shop (Herring was a mechanic and worked in a different area), warned him not to hold any more meetings, and restricted Herring to his work area does not spell out a violation of the Act. Also, with the commencement of its employees' organi- zational activities, the Company purported to change its policy regarding regular attendance during normal hours of work. The mechanics and body shop employees are paid commissions based on a percentage of the customer's charge for the work, not an hourly wage. The practice was that when a commission employee finished a job and did not anticipate another work assignment during the day he would obtain his supervisor's permission to leave early. About February 15 a notice was posted to the effect that employees were to keep regular hours and should report at 8 a.m. and remain until 5:30 p.m. Thus, John T. Hemng, occurred in periods prior to February 10, as well as in the period immediately following the Union' s demand for recognition Absent further evidence, the statistics do not show that the drop in production after February 10 was necessarily the result of increased "visiting" among the employees i2 The Permian Corporation, 189 NLRB No. 131 See also Serv-Air, Inc, 161 NLRB 382, and cases there cited, Hosiery Corporation of America v N LR B, 422 F.2d 784 (C A 4), Fabri-Tek, Incorporated v N LR.B, 352 F.2d 575 (C A 8) 58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Jr., testified that Service Manager Eubanks told him that the men were going to have to punch in at 8 a.m. and remain on the premises until 5:30 p.m., regardless of whether they had work to do. However, the new rule seems to have been only sporadically enforced. Body Shop Foreman Tarvin testified that the new rule effected no change at all. Tarvin explained, "My men are not salaried. They don't get paid by the hour but by the job." Similarly, Walter Page testified, "It was mentioned that [the policy regarding early departures] was going to be changed but it never did go into effect. They did ask us to be there but they didn't enforce it." Respondent offered no explanation for the promulgation of the rule or any justification for its adoption. In the circumstances, as the rule was issued only 4 days after the Union had demanded recognition and no evidence of business necessity was offered, I find that the purported change in the Company's policy regarding observance of hours of work was effected to harass the employees because of, and in reprisal for, their union activities. Accord- ingly, I find that the promulgation of such new policy constituted a violation of Section 8(a)(1). Foreman Tarvin's questioning employees Franklin and Page, summarized above, concerning their attendance at union meetings, the attendance of other employees at such meetings, and how much employee support the Union had also was unlawful. These questions were asked almost contemporaneously with President Ben Brady's announce- ment that he was going to fight the Union "with everything he had to the best of his ability." Also, when Tarvin questioned Page he first informed Page that the "front office" had asked him to try to get Page to discontinue his support for the Union. Moreover, in the same general period of time, three employees, discussed below, were discriminatorily discharged. In the circumstances, Tarvin's questioning of Franklin and Page had a natural tendency to create the impression that Respondent was considering reprisals against union supporters and constituted unlawful interrogation in violation of Section 8(a)(1).13 C. The Discharges Respondent was opposed to dealing with a union. General Counsel argues that when it discovered its employees' organizational interests it embarked on a course of resistance calculated to chill completely their organizational aspirations. Thus, on February 11, Brady announced that he was going to oppose unionization of the dealership "as much as the law permits" or "to the best of his ability." Presumably, to this end, very early in the Union's campaign, the Company retained the services of competent legal counsel. We may assume that it was advised as to the statutory restrictions on employer conduct in opposing an organizational drive. However, if the path of its antiunion moves carried it along the perimeters circumscribing permissible employer activity, then there may have been instances where Respondent, despite its counsel's advice, overstepped the bounds of 13 Bok, The Regulation of Campaign Tactics in Representation Elections Under the National Labor Relations Act, 78 Harv L Rev 38, 106 (1964). 14 According to Jackson, the day after the union meeting, Tarvin, who always kidded with Jackson, called Jackson a "Union man" because he lawfulness. Whether the Company did so is especially pertinent to the alleged discriminatory discharges. Unlike violations of Section 8(a)(1), unlawful motive normally is an essential ingredient to an 8(a)(3) finding. An employer may discharge an employee for any reason whatsoever, or for no reason-so long as the discharge is not related to the employee's union membership or activities. A corollary of this proposition is that union membership does not immunize an employee from discharge or other employer discipline. But an employer violates the Act if he discharges an employee because of the employee's union membership or activities, even if another contemporaneous reason for discharge exists. It matters not that the employee may have been incompetent or otherwise may have deserved discharge; if the efficient, proximate reason for the employee's discharge is his union membership or activities the discharge is unlawful. Likewise, an employer also acts unlawfully if, while actively opposing a union's organizational drive, he indiscriminately terminates em- ployees (rather than seeking out and selecting for discharge those who were leading the union's drive) for reasons which otherwise would not have prompted such action- even if by chance the employees who are discharged did not support the union. The employer's object in such case is to demonstrate to the employees that the union will bring them harm, not benefits, and thereby to "chill" the employees' self-organizational interest. Such chilling effect can be achieved (and in some cases more effectively) by haphazard discharges as well as by selective terminations of the union leaders. As to the three discharges discussed below, the thrust of General Counsel's argument is not that they were promi- nent in the organizational campaign or that they were innocent of the offenses attributed to them, but that, regardless of their faults, they were discharged because of their union membership and to discourage other employees from supporting the Union. He contends, therefore, that the discharges were unlawfully discriminatory. 1. Lex Jackson Lex Jackson first worked for the Company for about a year between 1968 and 1969. Al Stevens hired him a second time in October 1970 as a porter in the new-car get- ready department at the rate of $1.95 per hour. His principal duty was to wash automobiles. Jackson signed a union authorization card and, together with the other employees who attended the February 10 union meeting, signed the letter to Mr. Brady. Jackson was the only porter who attended that meeting and during the meeting volunteered to talk to the "other boys" about joining the Union. Foreman Earl Tarvin testified that he heard employees kidding Jackson about being a union man.i4 Jackson was discharged by Al Stevens shortly after noon on Friday, February 12. According to Jackson, Stevens informed him that he was cutting back on the wash rack and therefore had to let Jackson go. spoke at the union meeting Tarvin denied that he knew Jackson was for the Union, but testified that he heard other employees kid Jackson about being a union man However, Tarvin further testified that he assumed Jackson was in favor of the Union COLONIAL LINCOLN MERCURY SALES, INC. 59 Respondent contends that Jackson was discharged "because he was generally an unsatisfactory and unde- pendable employee." Stevens denied that when he dis- charged Jackson he told Jackson that it was because he was reducing the number of employees in the wash area.15 According to Stevens, "Jackson was good when he was there," but he was undependable. Finally, when Jackson reported for work an hour late on February 12, he decided to discharge Jackson. Among the complaints Stevens had regarding Jackson were that "at least four or five times per week" he spoke to Jackson about "failing to come in" and that many times he received reports from Ray King that the latter was unable to find Jackson because Jackson was away from his area getting sandwiches or going elsewhere.16 On two occasions Stevens believed Jackson reported to work under the influence of alcohol. In one instance, on a Saturday morning, Stevens sent Jackson home for that reason. Stevens also had heard that Jackson charged salesmen for washing their demonstrators and had warned Jackson to stop that practice. Nevertheless, Stevens received a complaint from salesman Luis Barrea that Jackson had refused to wash his car unless he paid Jackson for the service. Stevens again warned Jackson about such conduct. On his direct examination Stevens testified that he received the complaint from Barrea within 5 days preceding Jackson's discharge. However, on cross-examination when confronted with an affidavit which he had submitted to an investigator for the Board before the heanng, Stevens acknowledged that the incident had occurred in January 1971. Stevens also testified that he received two or three complaints from George Eubanks that Jackson would not wash customers' cars.17 The proximate reasons for Jackson's discharge, accord- ing to Stevens, were Jackson's absences and tardiness. Stevens testified that at least two or three times a week Jackson was late for work, punched out early, or simply left the premises and that Stevens on numerous occasions had warned Jackson about such conduct. Jackson was absent from work between February 4 and February 9. Jackson testified that he had been ill and that on each of the work days he was absent he telephoned and advised Stevens or the used-car manager, Slim Hughes, that he would not be in. Stevens contradicted Jackson in this 15 Vice President William Hanke testified, "What we were doing was just trying to do with less people The point being that we wanted to operate the wash rack with one man " 16 Although Ray King, who was in immediate charge of the new-car get- ready department , was a witness at the heanng, he did not testify that he had ever complained to Stevens about Jackson 11 Eubanks corroborated Stevens in this respect Eubanks testified that the practice was first to wash new cars and then to wash cars brought in for repairs by customers On several occasions he complained to Stevens that customers' cars had not been washed . On the other hand, Tarvin testified that Jackson had always cooperated with him 16 Stevens testified , "On numerous occasions prior to this I had warned Mr Jackson about being on time and dependable He was just not dependable He would come and go as he pleased " 19 King did not corroborate Stevens' testimony in this respect 20 Service Manager George Eubanks testified that the Company does not demand that porters punch in and out for lunch 21 Stevens did not specify what he was referring to by the "condition was not improving" and that he "had numerous complaints " from others On cross-examination, he was asked whether it was coincidence that Jackson was discharged the day after the Union's demand for recognition. Stevens respect. Stevens testified that on February 4 Jackson received permission to take the afternoon off for personal business. About noon the next day Jackson telephoned Stevens and reported that he was sick . Stevens asked how long he expected to be out and Jackson said he would call or try to be in the next morning . Stevens did not hear from Jackson until he reported back for work on February 10. Stevens again warned Jackson that he had to be more dependable.18 According to Stevens, the next day, February 11, Ray King, who is Jackson's immediate supervisor, reported that cars were backed up for washing and that Jackson could not be found.19 Stevens testified he made a complete tour of the building but could not find Jackson. He then assigned someone else to wash cars . Stevens next saw Jackson about 5:30 that afternoon and asked where he had been. Jackson said he'd been in the building all the time. After Stevens informed Jackson that he had looked for him and couldn't find him, Jackson admitted that he had some personal business he had taken care of. Jackson denied that he left the Company's premises on February 11 or that he had the conversation with Stevens testified to by the latter. Jackson's timecard shows that on February 11 he punched out for lunch at 1:07, did not punch back in after lunch,20 and clocked out at 5:39. Stevens discharged Jackson the next day when the latter reported for work 1 hour late. According to Stevens, Jackson "went back to go back to work and I walked right back behind him and I had reached the decision now was the time to discharge him due to the fact that the condition was not improving and I had had numerous complaints from other departments and people within the company on Jackson's actions . He just wouldn't cooperate." 21 Respon- dent denies that the Union or Jackson's union activities in any way prompted the decision to discharge Jackson. Stevens not only denied that he had any knowledge of Jackson's union activities, but testified, "I had no knowl- edge of anything due to the Union until I saw the picket line in front of our building."22 In large part Jackson contradicted Stevens' testimony about his derelictions . Regarding reporting late on Febru- ary 12, Jackson testified that Stevens had told him not to start early on cold mornings .23 Jackson denied that he had any conversation with Stevens on February 11 about his answered, "No, sir There was just an accumulation of everything and then when this thing popped up of him charging salesmen again , the main reason for firing Lex Jackson was nothing to do with the Union , he was strictly not dependable." The reference to charging salesmen was the complaint of Luis Barrea which on direct examination Stevens testified had been made less than 5 days before Jackson's discharge, but on cross-examination Stevens changed his testimony to fix the date as sometime in January 1971. 22 Although he tours the shop very often, Stevens also testified that he did not observe the posted notice, dated February 19 , 1971, prohibiting unnecessary gatherings not related to work 23 Although the nominal hours of work were from 8 a.m. to 5 30 p in., the evidence indicates that Respondent tolerated violations of both arrival and departure times. Neither Stevens nor any other company manager testified that Respondent expected the employees in the new-car get-ready department (to which Jackson was assigned) strictly to observe the official hours of work in another connection Respondent introduced the timecards of Nathaniel Rainey and Leo Thomas, both of whom worked in the new-car get-ready department. For February 11, Rainey's timecard shows that he clocked in at 8.34 a.m. and out at 4 53 p.m. while Thomas' timecard shows he punched in at 8 :04 a.m. and out at 5:26 p.m 60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD alleged absence that afternoon. According to Jackson, he was reprimanded for poor attendance only once and this occurred about 3 weeks before his discharge. Also, Jackson denied that he ever had charged salesmen for washing their cars although he willingly accepted tips when tips were offered to him by salesmen. Jackson acknowledged that on one occasion Stevens spoke to him about a complaint from Eubanks about Jackson's failure to wash a customer's car. Vice President William Hanke testified that in mid- January 1971 Stevens complained to him that Stevens could not depend on Jackson and that Stevens was going to have to make a change. On January 30, another porter by the name of Henry Harmon was hired to take Jackson's place. However, a few days later Harmon was involved in a minor automobile accident and a question arose as to whether Harmon's driver's license might be revoked. If that were to have happened then Harmon's services would have been of no value to the Company. Therefore, Stevens did not terminate Jackson's employment at that time.24 General Counsel argues that Respondent's defense to the discharge of Jackson was contrived, and its spuriousness is emphasized by the inconsistency between the testimony of Stevens and Hanke. According to Hanke, the decision to terminate Jackson was made no later than January 30 when Harmon was hired as his replacement. Stevens, on the other hand, testified in effect that he alone made the decision to terminate Jackson and that he made the decision spontaneously on February 12. The inconsistent versions given by Hanke and Stevens suggest that neither was correct. The gist of Stevens' testimony is that Jackson was a good worker when he worked but that he was discharged because of his excessive absences and tardiness. Regarding absences, the only specific instances developed by Respondent were the period between February 4 and February 9 when Jackson testified he was home ill and the afternoon of February 11. The Company does not dispute that Jackson was ill between February 4 and 9. Stevens' complaint is that Jackson telephoned on Friday, February 5, to inform him that he would not be in to work because of illness, but Jackson failed to telephone again on the next 2 work days. The more serious offense occurred on February I1 when, according to Stevens, Jackson disap- peared for the bulk of the afternoon. Jackson denied that he was out of the building. Significantly, Stevens testified that the reason he searched for Jackson that afternoon was because he had received a complaint from Ray King that Jackson was missing. Although King was a witness for Respondent and was called on to testify about other matters, he was not asked to corroborate Stevens' testimo- ny. I do not credit Stevens' testimony that Jackson was not in the building during the large part of the afternoon on February 11. In general, Stevens impressed me as being an unreliable witness. Among other things, he contradicted himself as to several material matters and tended to resort to generalities in describing events which properly called for specifics. Furthermore, as pointed out by General Counsel, his testimony that he had no knowledge whatso- 24 Hanke testified that Stevens knew Harmon was hired as a replacement for Jackson 25 Jackson testified that Stevens had given him some general instruction about not starting work early on cold mornings ever of the union activities among the Company's employees until the day of the strike is incredible. He is the third ranking official in the Company. Not only Brady and Hanke but also Foremen Eubanks and Tarvin testified that they learned about the employees' organizational activities on the night of the first union meeting. The subject was so widely known that even insurance adjusters were consider- ing whether they would withhold business from the Company because of the possibility of a strike. Moreover, a delegation of three employees and two union representa- tives met with Hanke and Brady on the afternoon of February 11. That such a meeting was not mentioned to Stevens is beyond comprehension. While there is no question that Jackson was late on the day he was discharged,25 according to Stevens, this was a habitual failing on Jackson's part. Why on that day did Jackson's customary dereliction prompt the decision to discharge him? Stevens testified, "I had reached the decision now was the time to discharge him due to the fact that the condition was not improving and I had had numerous complaints from other departments and people within the Company on Jackson's actions." This purported explanation not only is general, vague, and unsupported by specific example but also is inconsistent with Hanke's testimony that on January 30 Henry Harmon had been hired as Jackson's replacement but that Jackson's dis- charge was being deferred until a question about Harmon's driver's license could be resolved. There is no evidence that Harmon's problem had been cleared by February 12. Apart from the conflict with Hanke, Stevens gives no reasonable explanation as to why considering all the many alleged derelictions on the part of Jackson,'lie chose to discharge him on February 12, the day after Jackson's union activities became known in the shop, for the oft- repeated offense of reporting to work late. It is my opinion that the explanation advanced by Respondent for Jackson's discharge is not true. I find, in agreement with General Counsel, that Jackson was discharged because of his union activities and as an object lesson to other employees as to what might happen to them if they supported the Union. Such discriminatory discharge not only discourages membership in the Union in violation of Section 8(a)(3) but also restrains, coerces, and interferes with employees' exercise of their statutory rights in violation of Section 8(a)(1). 2. Edward L. Abbott Edward L. Abbott was hired about January 15, 1971, by Service Manager George Eubanks to do new-car prepara- tion work at a salary of $125 per week. He attended the union meeting of February 10 at which time he signed the letter to Mr. Brady. He also was elected as shop steward for his department. Abbott signed a union authorization card on February 9. Abbott was discharged on Monday, February 15, 1971.26 According to Abbott, when he arrived at work on the morning of Thursday, February 11, he felt ill. He told Ray 26 The complaint alleges that Abbott was discharged on February 22 However, his final check is dated February 17 and it thus appears that the discharge occurred a week earlier COLONIAL LINCOLN MERCURY SALES , INC. 61 King that he felt bad but nevertheless worked the entire morning After lunch, when he hadjust finished predelivery service on a car which was still on the rack, he was sitting in the vehicle with his head slumped over. At this moment Al Stevens came to him and asked if he had nothing better to do than to sleep. Abbott answered that he wasn't asleep but felt bad. Stevens responded, "If you feel bad, why don't you check out and go home?" According to Abbott, he explained to Stevens that he was the only one there and because there was a backlog of work he felt he should not leave. He also told Stevens that he didn't have transporta- tion to go home.27 Stevens responded, "That doesn't make any difference, go ahead and check out anyway and go home." Accordingly, Abbott told Ray King that he was leaving and probably would not be in to work the next day. He left the premises between 2 and 3 p.m. Abbott was absent the next day, Friday, February 12, and did not telephone to advise that he would not be in. Abbott explained that he did not believe it was necessary to telephone because he had told King before he left on Thursday that he probably would be absent the following day. When Abbott reported for work on Monday, February 15, he was informed by Service Manager George Eubanks that he was discharged. Abbott asked why, and Eubanks said, "sleeping on the job, failing to punch the time card when leaving and not calling in sick." When Abbott tried to explain the circumstances to Eubanks, the latter indicated he was merely complying with directions and had not participated in the decision to terminate Abbott. Service Manager George Eubanks testified that "Mr. Stevens came to me and told me that [Abbott] wasn't dependable and that he was terminating [Abbott] and then when Mr. Abbott came to my office I told him the exact words that Mr. Stevens said, to terminate him because of dependability." Eubanks further testified that, as a general rule, except for a serious offense such as being drunk on the job or doing something which would be hazardous to life, he would not discharge an employee the first time the employee engaged in some misconduct. Eubanks ex- plained, "One time if he was late for an hour or something and didn't punch in, I have not fired him, no, I have spoke to them."28 Eubanks further testified that he would not discharge an employee for failure to punch his timecard in the morning or for failure to punch out in the evening but would reprimand the employee for such oversight.29 Relative to the Company's policy regarding punching timeclocks Walter R. Page testified that there was no rule which was strictly enforced. The employees had been advised that state law required them to punch timeclocks. Until the union activity began employees were permitted to write in their time and the supervisor would sign the card. However, after the organizational campaign got underway, "they said we had to start punching it, punching the timecard." Page further testified that there were many times he failed to punch his timecard and nothing was ever said to him about the matter. Al Stevens testified that about 1 p.m. on the day in question, February 11, he observed Abbott sitting in a Cougar with his head slumped, and it appeared to Stevens that Abbott was sleeping. He asked Abbott what he was doing, and Abbott replied, "Nothing, resting." Stevens then asked Ray King what Abbott was doing and King said Abbott was supposed to be working. Abbott interject- ed that there was no work. Stevens then asked King whether there was work for Abbott to do, and King replied that there was plenty of work for him. Abbott then said he was not feeling well, and Stevens told King that if Abbott didn't feel well he should be at home or in the hospital. Stevens testified that he then went to George Eubanks' office and reported to Eubanks that Abbott had been sleeping in an automobile and was not doing his job. Stevens told Eubanks to send Abbott home and to "look into it." The next morning Stevens was informed by Ray King that they were short one man in the get-ready department. Stevens checked with Eubanks who told him that they had not heard from Abbott. Later that afternoon Stevens again asked Eubanks if the latter had heard from Abbott, and when Eubanks replied in the negative Stevens said, "As far as I am concerned terminate him." 30 Stevens testified that Abbott was terminated because he was "not dependable." Stevens denied that he had any knowledge of Abbott's union activities. On cross-examination Stevens testified that Abbott had worked for the Company only 2 or 3 weeks and that he had received no complaints about Abbott. When asked to explain Abbott's summary discharge without any warning or reprimand, he testified, "I would think my decision for letting Mr. Abbott go would be basically sleeping on the job saying he had no work to do and then not punching out and then not even having courtesy enough to call in and say he was sick after he said he did not feel good the foregoing day and not showing up the second day after he went home sick." Ray King testified that on the day in question, after lunch, Stevens came to him and asked if he had any work for Abbott. King replied that there was work for Abbott. King told Stevens that Abbott had complained that he wasn't feeling well. Stevens instructed King to tell Abbott that if he didn't feel like working he should go home. King told Abbott to go home and to return the next day if he felt better. While there are some discrepancies in the versions of the incident, summarized above, the essential facts are not in dispute. Stevens observed Abbott resting, was informed that Abbott was ill, and sent Abbott home. Abbott did not 27 Ray King testified that both Leo Thomas and Nathaniel Rainey were at work on February I I King also testified that Abbott did not say anything to him about the department being short-handed However, Abbott did not testify that he told King that he would continue working because the department was short-handed but testified that he gave such explanation to Stevens 28 Regarding porters, which includes Jackson, Eubanks testified that unlike salaried employees the porters normally punch the timeclock when they go out to lunch and return He explained that "it is not a demand [by the Company] that the porters do [punch the timeclock in and out for lunch] They have done it on their own . They punch in and out because if they see there is an extra two minutes coming to them, they are going to get that overtime " 29 More specifically, Eubanks testified, "If it is Just one occurrence, if it was consistent, I would reprimand them " 30 Although George Eubanks was a witness for Respondent, he was not questioned about the foregoing conversations between Stevens and himself relating to Abbott. 62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD punch his timecard when he left. The evidence is overwhelming that this was common and generally condoned.31 The next day, Abbott admittedly did not telephone to advise that he would not be at work. In view of the fact that Abbott was sent home the previous day because he was ill, this oversight on his part is understand- able. Moreover, there is no evidence that the Company disciplined employees who did not call in when absent. For . instance, in the case of Jackson, according to Stevens, Jackson was absent several days without telephoning and was not discharged when he returned to work. Further- more, so far as Stevens knew, Abbott was a competent employee. Stevens did not consult Abbott's immediate supervisors before reaching the decision to discharge him. Stevens' explanation for the summary discharge of Abbott in these circumstances does not carry the mark of truth. The employees' union activities became known to Respon- dent on the night of February 10. The next day Company President Brady announced that he would vigorously resist union organization of the Company. Then, in a relatively small department under the direct supervision of Sales Manager Al Stevens, the latter discharged Lex Jackson on Friday, February 12, and Edward Abbott the next Monday. In both cases the explanations given for the discharges, I find, were spurious. As in the case of Jackson, I find that Abbott was discharged because of his union activities and as a lesson to other employees as to what might happen to them for minor derelictions if they continue giving support to the Union. Accordingly, I find that Respondent by discharging Edward L. Abbott on February 15, 1971, violated Section 8(a)(1) and (3) 3. Jerry R. Franklin Jerry R. Franklin was hired in September 1970, as a body repairman. He was compensated on a commission basis computed at 50 percent of the customer's charge for the work. Franklin signed a union authorization card on February 9, 1971, and, at the union meeting the next evening, also signed the letter to Brady. Franklin was discharged on March 1, 1971. According to Franklin, it was his usual practice to arrive at work between 8 and 8:15 in the morning and to leave between 4:45 and 5 o'clock in the afternoon. On the day he was discharged, he changed from his work clothes into his street clothes about 4:45 p.m. He returned to the shop about 5 o'clock and was talking with Walter Page when Assistant Body Shop Foreman Skip Lemke came by and asked Franklin what he was doing in his street clothes. Franklin replied that he was about to go home. Lemke responded that he still had work to do. Franklin answered that he had done as much as he could with the parts that were on hand. Lemke, nevertheless, told Franklin to return 31 Thus, the bodyshop foreman, Earl Tarvin, testified that failure to punch the timeclock was not a dischargeable offense He explained that he would not discharge anyone for failing to punch a timeclock, "unless I had the orders that it was company policy " There is no evidence that at any time material to this hearing it was a company policy that employees who failed to punch the timeclock were subject to discharge As a matter of fact, Tarvin testified that the employees failed to punch the timeclock "quite often " 32 Body Shop Foreman Earl Tarvin testified that, since the body shop employees were paid on a commission basis, whenever in the afternoon they to his work area and, if Franklin did not do so, he could back his car in and get his tools. Franklin inquired whether he was fired and Lemke said he was. Franklin then told Body Shop Foreman Earl Tarvin what had happened. Tarvin said, "[W ]ord had come down from the front office to fire anybody that left before 5:30." According to Franklin, he had never previously been reprimanded for leaving at 5 p.m. Walter R. Page, another body shop repair employee, who worked for the Company for about a year in 1967 and then continuously since 1969, testified that prior to the advent of the Union there was no fixed rule regarding hours. "If you finished a job at 4 o'clock and they didn't have anything else for you to do and you didn't have a job to work on, you could leave at 4 o'clock." 32 According to Page, after the union organizational campaign began, the employees were asked to observe regular hours, "but it never did go into effect . . . they didn't enforce it." Page further testified that he knew it was Franklin's practice to arrive at work between 8 and 8 :30 in the morning and that Franklin always left about 5 o'clock in the afternoon and to his knowledge no one had ever said anything to Franklin about leaving at that hour. Page testified that he overheard the conversation in question between Franklin and Lemke. According to Page, Lemke asked Franklin why he didn't finish the job he was working on and Franklin replied that he didn't have any parts. Lemke said you are not supposed to leave at 5 o'clock. Franklin answered, "I have always left at 5 o'clock." Lemke replied, "[W ]ell, you don't leave until 5:30 ... you will start staying until 5:30, then if you can't stay until 5:30 then we don't need you." Franklin asked whether Lemke was telling him that he was fired, and Lemke replied, "[Y]ou might say that." Upon being further pressed by Franklin, Lemke said, "Yes, you are fired." About 5 minutes later, Page went into the office and asked Foreman Earl Tarvin "if this was his idea and he said no it came from the front office, if anybody left before 5 o'clock he wants to discharge them . .....33 Skip Lemke testified that on March 1, 1971, about 4:45 p.m. he observed Franklin dressed in street clothes. Lemke asked him where he was going and Franklin said he was going home. Lemke stated he still had work to do and asked why he was not doing it. To this Franklin answered, "I always go home at 5 o'clock." Lemke replied, "Not when there is work to do." Lemke then asked Franklin "how long he had been getting away with that." Franklin said, "He had been getting away with it for quite awhile." Lemke answered, "You have been getting away with it too long." Lemke then asked Franklin "if he would like to back his car in the shop and load his tools." The work which Franklin still had to do on the occasion in question had to be completed before the car could be finished doing the work available for them they would be given permission to leave regardless of the hour 33 Tarvin testified that following Franklin's discharge he had separate conversations with Franklin and with Page According to Tarvm, Franklin asked if Lemke had authority to discharge him, and Tarvin replied in the affirmative Later, Page walked into Tarvin's office and said that he thought a mistake was being made in letting Franklin go According to Tarvin, "I told him I had a job to do, I was hired to do a job and I did it" Tarvin denied that he told Page that word had come from the front office to discharge anyone leaving before 5 30 p in COLONIAL LINCOLN MERCURY SALES, INC. 63 brought into the paint shop for painting. According to Lemke, this particular work ultimately was completed and took only 25 minutes to do. However, if Franklin had completed the work on the night of March 1, because of the lateness of the hour, the car would not have been painted that evening. On his cross-examination, Lemke further testified that the car was not delivered to the customer for approximately an additional 2 weeks because certain necessary replacement parts were not available. Lemke testified that Franklin was working for the Company when Lemke was hired on November 1, 1970, and as of then he knew that Franklin customarily left the premises at 5 p m., or earlier. According to Lemke, "In my repeated talks with Mr. Franklin, by Mr. Tarvin and myself, he occasionally stayed until 5:30 like everyone else and came in at the proper time in the morning and then as time went on he kept on getting a few minutes further back to 5:20 . . . and then to 5 o'clock, then 4:45 and he just worked himself back in the same shape he was in before" Also, according to Lemke, "Mr. Tarvin had spoken to Mr. Franklin on several occasions about his coming and going. Mr. Franklin was habitually late in the morning and usually left early in the evening ...." Lemke testified that the previous Friday Franklin stopped working before 5 o'clock and did not complete repairs on a car which the Company had promised would be ready for delivery to the customer that day. According to Lemke, the work could have been completed in about an hour. On that occasion Lemke asked Franklin why he was leaving, and Franklin said that he was tired, that he had to go home, and that he had some other business to take care of. Franklin suggested to Lemke that the customer should be told to pick up the car on Monday. Franklin was not disciplined on that occasion. Body Shop Foreman Earl Tarvin testified that the customary working hours in his department were from 8 a.m. until 5:30 p.m. but "if they were caught up at 4 o'clock, didn't have any parts or didn't have anything to do, they would come and tell me they needed to go home and wanted to go home and I would tell them to go but when they had work to do they were expected to be on the job until 5:30." He further testified that in mid-February 1971 a notice was posted instructing the employees to observe regular working hours. However, according to Tarvin, the notice did not change the policy in the body shop regarding departure time. Tarvin explained, "My men are not salaried. They don't get paid by the hour but by the job." Regarding Franklin, Tarvin testified, "Most of the time he would sneak off about 5 o'clock and sometimes even earlier, you wouldn't know he was gone until you looked up and missed him." Tarvin estimated that Franklin left on or before 5 p.m. two or three times a week. He further testified that he had spoken to Franklin about this practice several times and that Franklin always had 34 Tarvin denied that he made any such statement to Franklin or Page I do not credit Tarvin's denial, he was not a forthright witness There are a number of demonstrable inconsistencies in his testimony that are not explainable by normal memory lapse For an example, in an affidavit which he executed on April 9, 1971, he'stated, "I had no knowledge whatever of whether Abbott, Jackson or Franklin were involved in Union activities " However, at the hearing he testified that he knew prior to Franklin's discharge that Franklin favored the Union His explanation for this some excuse such as he had to work on his wife's car or "he had to go do this, do that ... . Prior to the posting of the mid-February notice, there were no restrictions on the time body shop employees could leave work. Walter Page testified without contradic- tion that employees could leave before 5:30 p.m. even if they had not completed repairs on the car on which they were working. However, most of the employees obtained permission from their supervisor before leaving early. Franklin's practice was somewhat at variance with that of the other body shop employees. Franklin routinely left work by 5 p.m. This was well known to his supervisors. Tarvin testified that Franklin left early two or three times each week. Franklin was discharged by Lemke on March 1 for doing what he had been doing regularly for so long that it antedated Lemke's employment with the Company. Accepting Lemke's version, the car Franklin was repairing required another 25 minutes of work before it would have been ready for painting. The painting would not have been done until the next day even if Franklin had finished the repairs that night. Furthermore, there was no urgency in completing the repairs on the particular car because replacement parts which had been ordered had not yet been received and were not received for approximately another 2 weeks. In the circumstances, why then did Lemke make an issue about Franklin's leaving early on March 1, and why did Lemke discharge him for refusing to remain at work? The answer was provided by Tarvin who told both Franklin and Page that he had received instructions from the "front office" to discharge anyone who left before 5:30 p.m.34 The rule promulgated by Respondent that its employees, including commission employees, must remain on the premises until 5:30 p.m. was, I found above, unlawfully adopted following the Union's demand for recognition and as a reprisal against its employees for their self-organiza- tional activities and to discourage their support of the Union. As the rule was not generally enforced, it is possible that it was announced, not because Respondent intended to effect any real change in its policy regarding hours of work, but to harass its employees for their union activities. For unexplained reasons Lemke was more zealous in the application of the rule than any other company official. Nevertheless, the discharge of Franklin for violation of a company rule which was unlawfully promulgated to discourage union activities was unlawful. Accordingly, I find that Respondent by discharging Jerry Franklin on March 1, 1971, violated Section 8(a)(3) of the Act and also interfered with, restrained, and coerced employees in the exercise of their statutory rights in violation of Section 8(a)(1). D. The Strike The day after Jerry Franklin was discharged there was a inconsistency was that his information "was just hearsay They hadn't talked to me and I hadn' t asked them " Nevertheless, elsewhere during the hearing Tarvin testified that about February I I he asked Franklin whether Franklin went to the union meeting, and Franklin answered that he did In general, Tarvin impressed me as being an unreliable witness who was willing to, and did, shade the truth in order to assist his employer's cause in this litigation 64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD meeting of the Company's employees at the Union's office. About 22 employees attended. The fear was expressed that the employees would be discharged one at a time. Therefore, it was agreed that they would strike if another employee should be discharged. On March 4, 1971, John R. Herring was discharged. (The discharge is not alleged to be unlawful.) When the employees heard about the discharge they agreed among themselves that they would stop working. Union Representative Dickinson was con- tacted that evening, and the employees developed with him the strategy that they would follow.35 The next morning the employees struck and began picketing the Company's premises. The picket signs advertised that the Company was unfair and refused to bargain. On March 10 Union Representative James Dickinson and a committee of employees met with Company Vice President William Hanke and Robert Wilkins, an attorney for the Company, at which time an unconditional application for reinstate- ment was made on behalf of all the striking employees. The union delegation was informed that all of the strikers had been replaced except three.36 The complaint alleges that the strike was caused and prolonged by Respondent's unfair labor practices. Therefore, its theory is that Respondent was under a duty, following the unconditional application for reinstatement, not only to reinstate the striking employees to the positions for which there were available vacancies, but also to discharge persons hired during the strike as replacements for the strikers and to offer those jobs to the striking employees. Accordingly, the complaint further alleges that Respondent unlawfully has discriminated against the following striking employees by its failure to reinstate them to their former positions on and after March 10, 1971: Alton L. Bassett, David L. Brown, Henry Harmon, John T. Herring, Jerry D. Johnson, Larry H. Lawrence, Walter R. Page,37 Nathaniel Rainey, George A. Sheffield, Albert N. Sims, Alvin D. Sims, James R. Underwood, Carroll D. Wheeler, Charles R. Wynn, and Willie Davis 38 If the Company's unfair labor practices were an efficient cause of the strike, the strike, for the purposes relevant hereto, will be deemed to have been an unfair labor practice strike even if other factors contributed to the employees' decision to stnke.39 Jerry Franklin's discharge on March 1 was the third discharge within a period of 2 weeks. I have found that each of the three employees who were discharged, Lex Jackson, Edward L. Abbott, and Jerry Franklin, were unlawfully discharged to discourage membership in the Union. At the meeting of employees held on the night after Franklin was discharged, according 35 Dickinson testified he met with company employees on the night of March 4 "They just said they wasn't working any more until they recognized their unit and they was firing them and there wouldn't be anybody left there if they waited for an election " 36 The Company reinstated three employees at the time the application was made 37 Page was reinstated to his former position about May 20, 1971 38 It was stipulated at the hearing that the above-named employees, except Willie Davis, had been employed by the Company on March 4, had engaged in picketing the premises of the Company between March 4 and March 10, and had made an unconditional application to return to work on March 10 It was also stipulated at the hearing that Willie Davis was a striking employee although he did not actively engage in any picketing activities and that he too unconditionally applied for reinstatement on to John T. Herring, Jr., "we discussed the firing of employees to destroy the Union and all members present voted that if anyone else was discharged that we would strike." About 3 days later John R. Herring, was dis- charged. This triggered the decision to go on strike. Although Herring's discharge (which was not unlawful) was the immediate cause for calling the strike, the proximate operative reasons also were the discharges of Jackson, Abbott, and Franklin. As these three employees were unlawfully discharged, the strike which began on March 5 in protest thereof (and in protest of Respondent's unlawful refusal to bargain with the Union) was an unfair labor practice strike. Accordingly, in agreement with General Counsel, I find that Respondent has further violated Section 8(a)(1) and (3) of the Act by its failure on and after March 10 to reinstate the above-named strikers to their former positions. E. The Refusal To Bargain On February 11, 1971, the Union demanded recognition as the representative of Respondent's employees in an admittedly appropriate unit, and Respondent refused such recognition. At the hearing, the parties agreed that 39 employees were included in the unit as of said date but could not agree on the inclusion or exclusion of the following seven employees. G. P. Brumbelow is the dispatcher. He receives the repair orders after they have been written by the service writers and assigns the work called for by such orders to the mechanics. Specialized work such as transmission and electrical repairs are assigned to the mechanics who are qualified to do that work, and general repairs are assigned to mechanics in accordance with their availability. When there are more mechanics available than work for them, the assignments normally are given on the basis of which mechanic received the last work assignment.40 The dispatcher's sole authority over other employees is to assign work to them, to follow the progress of the work, and to get the work done as quickly as possible. General Counsel contends that Brumbelow should be excluded from the unit because he has "no community of interest with mechanics, and because he has control over which mechanics can get a particular job." In effect„ General Counsel argues that Brumbelow is a managerial employee. I do not agree. While the dispatcher's job requires intimate knowledge of the functioning of the service department and the skills of the mechanics and while it also requires the exercise of judgment in assigning work in such order and to such mechanics as to meet the service department's March 10. 39 "If an unfair labor practice had anything to do with causing the strike, it is an unfair labor practice strike" General Drivers and Helpers Union, Local 662 (Rice Lake Creamery Co) v N L R B, 302 F.2d 908, 911 (C A D C), cert. denied 371 U.S. 827 Winn-Dixie Stores, Inc v. N L R B, 78 LRRM 2375 (C.A 4), cited by Respondent, is inapposite because the court concluded that there was no causal connection between the unfair labor practices and the strike. It is settled law that a stoke which is caused in substantial part by an employer's unfair labor practices does not lose its unfair labor practice character simply because it may also have had other objectives N L R B. v Fitzgerald Mills Corp, 313 F.2d 260, 269 (C.A. 2); Butcher Boy Refrigerator Door Co v. N LR B, 290 F.2d 22, 23 (C.A. 7) 40 What probably is meant is that the mechanic who is without work the longest receives the first assignment of work. COLONIAL LINCOLN MERCURY SALES, INC. 65 schedule, it, nevertheless, is work of a repetitive and routine nature which involves neither supervision of other employees, nor establishing policy for the Company, nor committing the resources of the Company. I find that the dispatcher should be included in the unit. R. Workman is the shop foreman. He is responsible for the quality of the mechanical repairs done in the shop. In addition, he is available to instruct and assist mechanics who may have difficulty effecting a repair. Workman has authority to reject work done by mechanics and to require them to redo repairs. Such rejection has an adverse effect on the earnings of the mechanics who are paid a commission based on the customer's charge for the work. Unlike other mechanics, Workman is paid a salary plus a commission computed on the basis of the total sales of the service department. I find that Workman has the authority responsibly to direct the mechanics in their work and is therefore a supervisor within the meaning of the Act. I therefore find that Workman should be excluded from the unit. Ray King is in charge of getting new cars ready for delivery; his department is under the direct supervision of General Sales Manager Al Stevens. King is responsible for getting out the work that is assigned to his department, and in this connection he directs the work activities of from four to six men. He also has authority to give the employees in his department time off and to assign overtime work to them. He is paid a salary while the other employees in the department are hourly paid. According to Stevens, King has authority to discharge employees in his department. I find that King is a supervisor and therefore is excluded from the unit. A B. Sorrells is the cashier. Her place of work is in the general office area and not in the service area. She receives the repair orders, including parts used, from the service department, which are transmitted to her through a pneumatic tube and totals the individual charges on the repair orders to arrive at the customers' bills.. The customers make their payments for the car repairs to Mrs. Sorrells. In case of question she will call on a service department employee to explain the charge to the customer. She also serves as Respondent's switchboard operator. Mrs. Sorrells is not required to go into the service area of the plant in the performance of her normal work. I find that Mrs. Sorrells is an office clerical employee, not a plant clerical employee, and is excluded from the unit. E Eubanks is the wife of Service Manager George Eubanks. She normally works for Respondent 8 hours per week. She selects the day she will work to suit her convenience. Her job consists of filing repair orders in the customers' files which are kept in the service writers' office. Her work contacts are with the service writers. I find that Mrs. Eubanks is included in the unit as a regular, part-time plant clerical employee. Homer Dabbs and D. A. Skinner: Respondent contends that these two persons were on authorized leaves of absence as of February 11, 1971, and therefore should be included in the unit. The Company does not have any established policy regarding leaves of absence. According to Hanke, leaves of absence are handled on an individual basis. Homer Dabbs stopped working for the Company prior to August 1970 and returned more than 9 months later in mid-March 1971. There is no evidence that he was carried on the Company's personnel roster for any purpose, such as vacation benefits, insurance benefits, etc., during this extended period. The only evidence relating to Dabbs having been given a leave of absence is the following testimony by Service Manager George Eubanks: . . [H]is wife was off in Texas with her mother, had cancer, had several operations and had to stay in a dry climate and he has a couple of times secured leaves of absence to go out there to visit her and most of the times it would run maybe one or two months, but it was a leave of absence, to come back later on." It is not clear from Eubanks' testimony that Dabbs was given a leave of absence in August 1970. In any case, Eubanks indicated that the leaves of absence that he had given Dabbs in the past were for "one or two months." In this instance Dabbs was gone for 9 months. If Dabbs had been given a leave of absence when he left in August 1970, it expired long before his return. As to Skinner, George Eubanks testified: "... [H]is family lived close to Anniston, Alabama. He has got a young boy nine years old. He worked over here and went back on the week ends. It got to be a matter that the mechanic felt that he was neglecting his child because he said the nine year old would cry before he would come back over for the next week's work, so he decided he wanted to go over there and attempt at a new dealership to establish a job, but if not, if he could not make it, then he would like to return and it was agreed at that time he could return to employment." Eubanks' testimony indicates that Skinner quit his employ but was promised employment again should he return at a later date. I find that Dabbs and Skinner were not on leaves of absence as of February 11, 1971, and therefore are not included in the unit. I find that as of February 11, 1971, there were 41 employees in the unit involved in this case: The 39 employees agreed on by the parties at the hearing plus Brumbelow and Mrs. Eubanks. Twenty-nine of the employees in the described unit signed union authorization cards. These cards are entitled "Application For Membership" and in-pertinent part read as follows: "I here apply for membership in the Retail, Wholesale and Department Store Union and designate it to represent me in collective bargaining negotiations on wages, hours and working conditions." Twenty-seven of the cards had been delivered to Union Representative James Dickinson prior to his meeting with the Company on February 11, 1971, when, on behalf of the Union, he requested recognition as the representative of the Compa- ny's service department employees?i Respondent contends that three of these cards-signed by Glenn T. Kitchens, John T. Dabbs, Jr., and Edward Ray Easley-should not be counted towards the Union's majority because these employees, when solicited to sign the cards, were led to believe that the only purpose of the 41 The cards executed by Alvin Sims and Jerry D Johnson are dated March 1 , 1971, and March 5, 1971, respectively The 27 other cards were executed between February 9 and February 11, 1971 66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cards was to get a meeting. Glenn T. Kitchens testified that he was solicited to sign a card by Larry Lawrence. He inquired what the purpose of the card was and, according to Kitchens, Lawrence said: ... that they were trying to get a union into the shop to better the insurance purposes. But before they could get the union in they had to have a meeting and I said, well, I'm not really interested in joining no union. He said, well, everybody else is sticking together. I said, well, I will sign the card, Larry, to go to the meeting but I don't want to join a union. And I signed the card. He said read it. I said I'll take your word for it . . . I figured we would stick together and have the meeting and we would decide what we wanted to do. Kitchens further testified that Lawrence told him that if he did not want to sign the card he should wait and go to the meeting and then decide what he wanted to do. The card in question states its purpose in clear and unambiguous language. Despite Kitchens' expressed reservations about joining the Union, he chose voluntarily to sign the authorization card. He was not misled either by Lawrence, who solicited his signature, or by any ambiguity in the language printed on the card.42 Even if Kitchens chose to sign the card only because he wished to "stick together" with his fellow employees, rather than because of sympa- thy with the Union, the card nevertheless represents a valid designation of the Union. As the Supreme Court stated in N.L.R.B. v. Gissel Packing Co., 395 U.S. 575, 607-608, We cannot agree with the employers here that employees as a rule are too unsophisticated to be bound by what they sign unless expressly told that their act of signing represents something else. [We] also accept the observation that employees are more likely than not, many months after a card drive and in response to questions by company counsel, to give testimony damaging to the union, particularly where company officials have previously threatened reprisals for union activity in violation of § 8(a)(1) [citations omitted]. We therefore reject any rule that requires a probe of an employee's subjective motiva- tions as involving an endless and unreliable inquiry. John Thomas Dabbs, Jr., testified that he signed a union card on February 9, 1971. He was solicited by Larry Lawrence and John T. Herring, Jr. According to Dabbs: They gave me the card. I looked at it and it said Retail, Wholesale and Department Store Union. I saw it and John Herring said we are trying to get a union in. I kind of hesitated and I said, I'll go along with the majority. And then John Herring, Jr., said, well, this is not the union. We are trying to get a meeting. So, I signed the card and filled out my name and address. For the reasons stated above, I find that this card also is a valid designation of the Union. Furthermore, Dabbs testified that he attended all the union meetings and took the oath of membership in the Union. Edward Ray Easley testified that he was solicited by Larry Lawrence. According to Easley, Lawrence 42 Kitchens' testimony that he filled in the information asked for on the card and signed the card without reading it and without understanding that . .. just said that we were fixing to have a meeting to get the union in this company. He said, we've got to have a meeting first. We've got to all get together and see how we want to do this. He said, if you sign this card we are going to have a meeting. And he told me about the insurance regulations and this and that that went with it. He said, this card would draw us altogether for a meeting. And we would see whether or not we wanted the union. That was my understanding. For the reasons expressed above, I also find that Easley's card constitutes a valid designation of the Union. Accordingly, as of February 11, 1971, when the Union demanded recognition as the collective-bargaining repre- sentative of the Company's service department employees, and when the Company refused to recognize the Union as such representative, the Union had received designations from 27 employees in the appropriate unit which then was composed of 41 employees. The Union, therefore, had been designated as representative by a majority of the employees The refusal of the Respondent to recognize the Union, which had been designated as representative by a majority of employees in the Company's service department, when such recognition was requested on February 11, 1971, alone does not spell out a violation of Section 8(a)(5). Both parties were willing to submit the question of representa- tion raised by the Union's demand for recognition to determination by the Board through its election processes. However, although an election was conducted on April 16, 1971, Respondent by its unlawful conduct, found above, contaminated the election procedure so as to render the results of the election meaningless. When on February 11, 1971, Respondent's president, Ben Brady, learned about his employees' self-organizational activities, he promptly announced his opposition and that he would strenuously oppose the Union. Within 2 weeks of that date Respondent engaged in various unlawful acts calculated to discourage employees' union support. Particularly significant were the discriminatory discharges of Jackson, Abbott, and Frank- lin. These discharges not only removed three union members from the Company's employ, but was a devastat- ing tactic for eroding the employees' union enthusiasm. The discharge of some employees for their union member- ship or support (or in such manner, or under such circumstances, as to convey to the employees the impres- sion that the discharges were reprisals against employees for the organizational activities taking place) is a potent, but unfair and unlawful, means of combating an organiza- tional drive. A threat then hangs over the remaining employees that if they continue to support the Union they too will be subject to peremptory removal from theirjobs. Such threat constitutes a forceful inhibition on the exercise by employees of their statutory rights to engage in self- organizational activities. Furthermore, the reach of such threat is long. The fears generated in employees by the discharge of some of their coworkers are pervasive, extensive, difficult to extinguish, and quick to reappear under only slight stimulus. By reason of Respondent's unlawful conduct, I shall recommend that the results of the it was an application for membership in the Union is incredible COLONIAL LINCOLN MERCURY SALES, INC. 67 April 16, 1971, election be set aside. Furthermore, I find that Respondent's unlawful conduct served to undermine the Union's majority (to the extent that the results of the April 16 election can be considered as a reflection of the employees' sentiments regarding union representation) and that the possibility of a fair rerun election, in the circumstances, is slight . I further find that, on balance, the employees' desires, previously expressed by their execution of union membership applications , will be better protected by a bargaining order than by another election . According- ly, I shall recommend such bargaining order in this case.43 IV. THE REPRESENTATION PROCEEDING An election among the employees of Respondent's service department was held on April 16, 1971, in a proceeding initiated by a petition filed by the Union on February 11, 1971. The Union lost the election and timely filed "Objections to Election" which in 12 numbered paragraphs set forth its objections to the conduct of the election and to conduct affecting the results of the election. The "Objections to Election" are attached hereto as Appendix "A." In connection with the latter objections, which are covered by paragraphs numbered 1, 2, 3, 4, and 12 in the Union's objections, only conduct which occurred after the filing of the representation petition may be considered 44 The incidents adverted to by the Union's objections to conduct affecting the results of the election duplicate the allegations of the unfair labor practice complaint herein. As the unfair labor practices committed by the Respondent occurred on or after February 11, 1971, and as such unfair labor practices prevented the conduct of a fair election, I shall recommend that the results of the election be set aside. Paragraphs numbered 5 through 11 of the Union's objections state the Union's objections to the conduct of the election. The election was held on the Company's premises and the balloting was scheduled between 8 a.m. and 9 a.m. Respondent operates a franchise automobile dealership. The balloting was conducted in a closed room located off a far corner of the Company's showroom. In order for the voters to gain access to the voting booth, they had to traverse almost the entire breadth of the showroom. The executive offices are located in the back of the showroom. The balloting was conducted during hours when the showroom was open to the public for business so that the presence of some company officials on the showroom floor probably was required and should have been anticipated. Thus, during the polling hours, Brady, Hanke, Stevens, Eubanks, and Tarvin, as well as company attorneys, were in the showroom and the voters had to pass by them to reach the voting booth 45 At the preelection conference, which was held about 7:30 a.m. on the morning of the election, the Union's represent- ative, Herschel Holmes, designated Larry Lawrence, one of the striking employees, as the Union's observer. Mr. Wilkins, an attorney representing the Company, objected and stated that Lawrence would not be permitted on company property. Although the Board representative told Wilkins the latter was furnishing grounds for objection, Wilkins remained steadfast. The Board agent informed Holmes that the premises belonged to the Company, and it had the right to order Lawrence off the premises. Holmes then designated a nonstriking employee as the union observer. For the morning of the election the Company hired a uniformed policeman to be present during the polling period. According to Hanke: There was some pretty high feelings that existed at the time of that strike and all during the period afterward and up until the election. The uniformed policeman was brought to the place just to be sure that there was not an incident of any kind. You must remember that we had strikers and we had replacements. And we just did not want any kind of incidents between them or among themselves. Also, during the preelection conference the company attorney informed the Board agent and the union repre- sentative that the striking employees would be permitted to vote only after the nonstriking employees had voted. He explained, "we are not going to keep our men back there while your men vote because they have got work to do." Before the polls opened the policeman ordered the striking employees away from in front of the Company's building. They were permitted to wait on the sidewalk in front of the adjacent used-car lot. After the nonstriking employees had voted, Stevens came out and permitted the striking employees to go into the premises to vote in groups of four. As it turned out, the last striker didn't vote until about 9:18 a.m., although the polls were scheduled to close at 9 a.m. Stevens testified that before the voting began the Company's counsel gave him a list ... of how the departments were going to vote so we wouldn't just close down, we were still in business, they had it set up where there would be four people at a time so we set up to call the departments, in departments, like your office staff all at one time and we would take them four at the time and it was the same way with the strikers that were standing outside. My instructions was to bring four people to the voting door each time, no more than four at the door. The statutory object of Board elections is to obtain a definitive expression of employees' desires regarding the selection of a bargaining representative. Ideally, employees should have the opportunity to cast their ballots in an area and under circumstances where there will be no extraneous influences on their decision. Such an ideal can never be achieved when the election is conducted on the employer's premises. On the other hand, to find a completely neutral place for the balloting might require the selection of a location which, as a practical matter, would be inaccessible to some of the voters or, if not inaccessible, would be sufficiently inconvenient to discourage them from exercis- ing their franchise. This also would impair the ideal election procedure which seeks to obtain an expression from every eligible employee. Thus, practical considera- 43 N L R B v Gissel Packing Co, supra, Ace Foods, Inc, 192 N LRB No 45 Each of the named company officials was on the showroom floor 180, Merritt Motor Company, 181 NLRB No 172 during some part of the time, if not all the time, that the polling booth was 44 Goodyear Tire & Rubber Company, 138 NLRB 453 open. 68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tions often dictate accepting a less than ideal situs for the balloting and frequently such location is the employer's premises. Board experience has indicated that, although this is not ideal, in most instances, it is satisfactory. Whenever an election is held on company property, the employer by volunteering the use of his premises assumes special obligations. The election is conducted by the Board. It is under the auspices and control of the Board. The employer must not intrude in the election process. The employees should not gain the impression that the election process is subject to the direction of the employer rather than of the Board. In effect, the employer is under an obligation to surrender control of his property to the Board for a limited time and to the limited extent required for the conduct of the election.46 In this case, the Employer did exactly the opposite. At the preelection conference he dictated a category of employees whom the Union might not use as observers, he dictated where and in what order the employees would vote, and he employed the services of a uniformed policeman to insure his authority. I find that the Company's conduct in this case was a sufficiently aggravated intrusion into the election process as to vitiate the results. For this reason, also, I recommend that the election conducted on April 16, 1971, should be set aside. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Company set forth in section III, above, occurring in connection with its operations de- scribed in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. Vi. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, I shall recommend that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent unlawfully has refused to bargain collectively with the Union, I shall recommend that it be ordered to bargain collectively with the Union, upon request, with respect to rates of pay, wages, hours of employment, and other terms and conditions of employ- ment of the employees in the appropriate unit described below. I shall also recommend that any understanding reached between the parties shall be embodied in a signed agreement. Because the Respondent is being directed to bargain collectively with the Union, although no designa- tion of representative was made in accordance with the procedures of Section 9 of the Act, I shall further recommend that the notice herein contain language advising the employees of their right to a decertification election. See N.L.R.B. v. Priced-Less Discount Foods, Inc, 405 F.2d 67, and 407 F.2d 1325 (C.A. 6); Ace Foods, Inc., 192 NLRB No. 180. Having found that the Respondent unlawfully dis- charged Lex Jackson on February 12, 1971, Edward L. Abbott on February 15, 1971, and Jerry R. Franklin on March 1, 1971, I shall recommend that the Respondent offer each of these employees immediate and full reinstate- ment to his former job, or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make each of them whole for any loss of earnings he may have suffered by reason of the discrimination against him by payment to him of a sum of money equal to that which he normally would have earned from the aforesaid date of his discharge to the date of the Respondent's offer of reinstatement, less his net earnings during such period. The backpay provided for herein shall be computed on the basis of calendar quarters, in accordance with the method prescribed in F. W. Woolworth Company, 90 NLRB 289. Interest at the rate of 6 percent per annum shall be added to such net backpay and shall be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. Having found that the strike which began on March 5, 1971, is an unfair labor practice strike and that the Respondent unlawfully has refused to reinstate the 15 sinkers named above, I shall recommend that the Respon- dent offer said employees immediate and full reinstatement to their former jobs, or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, discharging if, and as, necessary persons hired on and after March 5, 1971. I shall further recommend that Respondent make said strikers whole for any loss of earnings they may have suffered by reason of Respondent's unlawful refusal to reinstate them to their former jobs by payment to them of a sum of money equal to that which they normally would have earned from March 15, 1971 (that date being 5 days after the date on which unconditional application for reinstatement was made by said striking employees), to the date of the Respondent's offer of reinstatement less their net earnings during such period. The backpay provided for herein shall be computed on the basis of calendar quarters, in accordance with the method prescribed in F. W. Woolworth Company, 90 NLRB 289. Interest at the rate of 6 percent per annum shall be added to such net backpay and shall be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. For the reasons which are stated in Consolidated Industries, Inc., 108 NLRB 60, 61, and cases there cited, I shall recommend a broad cease-and-desist order. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. By refusing to recognize and to bargain collectively with the Union on and after February 11, 1971, with respect to the employees in the below-described appropri- ate unit, Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(5) of the Act. The unit appropriate for collective bargaining is: 46 See Ace Letter Service Co , 187 NLRB No 79, Fairview Hospital, 174 Measurements Co, Inc , 148 NLRB 1657, 1659 NLRB No 192, motion to stay denied 443 F 2d 1217 (C A 7), Performance COLONIAL LINCOLN MERCURY SALES , INC. 69 All employees in the service department of the Respondent's Auto Sales and Service Agency in Atlanta, Georgia, including mechanics, assistant me- chanics, new car get-ready, used car make-ready, body shop employees, plant clerical employees, and parts department employees, but excluding all office clerical employees, professional employees, guards, and super- visors as defined in the Act. 2. By discriminatorily discharging Lex Jackson, Ed- ward L. Abbott, and Jerry R. Franklin, thereby discourag- ing membership in the Union, the Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(3) of the Act. 3. The strike by Respondent's employees which began on March 5, 1971, was caused and has been prolonged by Respondent's unfair labor practices herein found. 4. By failing and refusing, since March 10, 1971, to reinstate the 15 striking employees named above after they had made unconditional applications for reinstatement to their former positions, thereby unlawfully discriminating against them and discouraging membership in the Union, Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(3) of the Act. 5. By reason of the foregoing conduct and by reason of the unlawful interrogation of employees, described above, and the unlawful change in its policy regarding employees' hours of work, Respondent has interfered with, restrained, and coerced employees in the exercise of the rights guaranteed by Section 7 of the Act and thereby has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 6. 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, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 47 ORDER Respondent, Colonial Lincoln Mercury Sales, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively interrogating employees concerning their union membership or activities or concerning the union membership or activities of other employees. (b) Changing policies regarding hours of work or other terms of employment to affect adversely employees' conditions of employment in reprisal against employees for engaging in union activities or to discourage union activities on the part of employees. (c) Discouraging membership in Retail, Wholesale and Department Store Union, Council of Georgia, AFL-CIO, or any other labor organization, by discharging any of its employees or by otherwise discriminating against any of its employees in regard to their hire, tenure of employment, or other term or condition of employment. (d) Refusing to bargain collectively with Retail, Whole- 47 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in sale and Department Store Union, Council of Georgia, AFL-CIO, as the exclusive collective-bargaining represent- ative of the employees in the following appropriate unit: All employees in the service department of the Respondent's Auto Sales and Service Agency in Atlanta, Georgia, including mechanics, assistant me- chanics, new car get-ready, used car make-ready, body shop employees, plant clerical employees, and parts department employees, but excluding all office clerical employees, professional employees, guards, and super- visors as defined in the Act. (e) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights to self- organization, to form, join, or assist Retail, Wholesale and Department Store Union, Council of Georgia, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, 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. 2. Take the following affirmative action, which is deemed necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively concerning rates of pay, wages, hours of employment, and other terms and conditions of employment with Retail, Wholesale and Department Store Union, Council of Georgia, AFL-CIO, as the exclusive representative of all the employees in the appropriate unit described above, and, if an agreement is reached, embody it in a signed contract. (b) Offer to the employees named below immediate and full reinstatement to their former jobs, or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority and other rights and privileges, and make them whole for any loss of earnings they may have suffered by reason of the unlawful discrimination against them in the manner set forth in the section of this Decision entitled "The Remedy." The employees to whom such offers of reinstatement and payments of backpay shall be made are: Lex Jackson Edward L. Abbott Jerry R. Franklin Alton L. Bassett David L. Brown Henry Harmon John T. Herring Jerry D. Johnson Larry H. Lawrence Walter R. Page Nathaniel Rainey George A. Sheffield Albert N. Sims Alvin D. Sims James R. Underwood Carroll D. Wheeler Charles R. Wynn Willie Davis (c) Notify immediately the above-named individuals, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, Section 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 70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this recommended Order. (e) Post at its premises in Atlanta, Georgia, copies of the attached notice marked "Appendix B."48 Copies of said notice, on forms provided by the Regional Director for Region 10, after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 10, in writing, within 20 days from the date of the receipt of this Decision, what steps the Respondent has taken to comply herewith.49 IT IS FURTHER RECOMMENDED that the election conduct- ed on April 16, 1971, beset aside, that the petition in Case 10-RC-8619 be dismissed, and all proceedings held in connection therewith be vacated. 48 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 " 49 In the event that this recommended Order is adopted by the Board after exceptions have been filed , this provision shall be modified to read "Notify the Regional Director for Region 10, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith " APPENDIX A OBJECTIONS TO ELECTION Pursuant to Section 102.69 of the Board's Rules and Regulations, Series 8, as amended , Retail, Wholesale and Department Store Union, Council of Georgia, AFL-CIO, herein called the Petitioner, files this its Objections to the conduct of the election and conduct affecting the results of the election held on April 16, 1971, in the above styled matter, wherein the tally of ballots shows four votes cast for the Petitioner, twenty-eight votes cast against the Petitioner, and thirty-two challenged ballots cast, and as grounds for its Objections shows as follows: 1. The Employer discriminatorily discharged several em- ployees for the purpose of coercing, intimidating, and interfering with the rights of its employees under Sec. 7 of the Act, as amended, and to destroy the majority standing of the Petitioner among its employees and to prevent the employees from casting a free and untrammeled vote in the National Labor Relations Board election. 2. The Employer by reason of its discriminatory discharges, and other unfair labor practices, caused an unfair labor practice strike and upon the termination of the strike, the strikers made unconditional offers to return to work but the Employer failed and refused to reinstate them for the purpose, among others, of interfering with and affecting the results of the election. 3. The Employer, through its officers, agents and supervi- sors, interrogated its employees concerning their union activities, desires and sympathies for the purpose of affecting the result of the election. 4. The Employer, through its officers, agents and supervi- sors, made promises of benefits and threats of reprisals for the purpose of affecting the results of the election. 5. The Employer, through its officers, agents and supervi- sors, came into the voting area during the hours that balloting was being conducted while they were standing in line waiting to vote and generally engaged in electioneering activities. 6. The Employer, through its officers, agents and supervi- sors, interfered with and affected the results of the election by its actions against its employees, who had been on strike, and who were refused reinstatement upon their unconditional offers, when they came to the Employer's place of business on April 16, 1971 to vote, to wit: (a) A uniformed policeman from the City of Atlanta police force was hired by the Employer and placed near the polling area to intimidate, coerce and restrain the former strikers who the Employer refused reinstatement. (b) This policeman at the request of the Employer refused to allow the former strikers to come on to the Employer's premises when the polls opened at 8:00 A.M. and these persons were not even allowed to stand in front of the building on the sidewalk prior to coming in to vote. Further, these persons were not even allowed to enter the Employer's premises until around 8:50 A.M., and many of them had still not entered upon the Employer's premises at the time the election was scheduled to terminate at 9:00 A.M. 7. The Employer engaged in a studied plan to segregate all of the former strikers and not let them on the property of the Employer until after all its present employees had voted. Officers, agents and supervisors of the Employer came out of the Employer's building down the sidewalk and to the place where the former strikers were ordered by the policeman to wait, and there proceeded to instruct the former strikers as to how they would come into the building and who could come in at a particular time and when they could come in and generally gave the impres- sion that the Employer was running the election. COLONIAL LINCOLN 8. The Employer's action on the day of the election was for the sole purpose of harrassing, obstructing and interfering with the rights of the former strikers to cast a free and untrammeled vote and caused them to suffer indignities as individuals which the National Labor Relations Board should not tolerate in its elections. 9. The Employer, through its officers, agents and supervi- sors, did interfere with the holding of a free election by keeping a constant surveillance on the employees, who were former strikers. 10. The Employer, through its officers, agents, and supervi- sors, refused to allow employee Larry Lawrence to act as observer for the Petitioner at the election. 11. The election did not terminate at the time set forth in the notice of election for the closing of the polls, which was 9:00 A.M., due to the tactics of the Employer and this interfered with the holding of a free election. 12. The Employer, through its officers, agents and supervi- sors, by other actions and conduct interfered with the holding of a free and fair election. WHEREFORE, Petitioner urges that the Board inquire into the aforesaid Objections to the Election and sustain the Objections by setting aside the election held on April 16, 1971 and directing that another election be held. APPENDIX B NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT interrogate our employees concerning their union membership or activities or concerning the union membership or activities of other employees. WE WILL NOT change our policies regarding hours of work or other conditions of employment to affect adversely our employees' conditions of employment in reprisal against employees for engaging in union activities or to discourage union activities on the part of our employees. WE WILL NOT discourage membership in Retail, Wholesale and Department Store Union, Council of Georgia, AFL-CIO, or any other labor organization, by discharging any of our employees or by otherwise discriminating against any of our employees in regard to their hire, tenure of employment, or other term or condition of their employment. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their MERCURY SALES, INC. 71 rights to self-organization, to form, join, or assist Retail, Wholesale and Department Store Union, Council of Georgia, AFL-CIO, or any other labor organization , to bargain collectively through represent- atives of their own choosing, 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. WE WILL offer to the employees named below immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions , without prejudice to their seniori- ty and other rights and privileges , and WE WILL make them whole for any loss of earnings they may have suffered by reason of the unlawful discrimination against them . The employees to whom such offers of reinstatement and payments of backpay shall be made are: Lex Jackson Walter R. Page Edward L. Abbott Nathaniel Rainey Jerry R. Franklin George A. Sheffield Alton L. Bassett Albert N. Sims David L. Brown Alvin D. Sims Henry Harmon James R. Underwood John T. Herring Carroll D. Wheeler Jerry D. Johnson Charles R. Wynn Larry H. Lawrence Willie Davis WE WILL, upon request, bargain collectively con- cerning rates of pay, wages, hours of employment, and other terms and conditions of employment with Retail, Wholesale and Department Store Union, Council of Georgia, AFL-CIO, as the exclusive representative of all our employees in the appropriate umt described below, and, if an agreement is reached, embody it in a signed contract. The appropriate unit is: All employees in the service department of our Auto Sales and Service Agency in Atlanta, Georgia, including mechanics, assistant mechan- ics, new car get-ready, used car make-ready, body shop employees, plant clerical employees, and parts department employees, but excluding all office clerical employees, professional employees, guards, and supervisors defined in the Act. Employees, pursuant to Section 9(c)(1) of the National Labor Relations Act, may, at an appropriate time, petition the National Labor Relations Board at the office set forth below for an election to decertify the Union as their -collective-bargaining representative. The filing of such a petition can only be done as the voluntary act and choice of the employees and on their own initiative, without encouragement or assistance from any representative of management. COLONIAL LINCOLN MERCURY SALES, INC. (Employer) Dated By (Representative) (Title) 72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We will notify immediately the above-named individuals, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. 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, Peachtree Building, Room 701, 730 Peachtree Street, NE., Atlanta, Georgia 30308, Telephone 404-526-5760.