Koons Ford Of Annapolis, Inc.

506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Koons Ford of Annapolis, Inc. and District 65, United Automobile, Aerospace and Agricultural Implement Workers of America. Cases 5-CA- 15050 and 5-RC-11899 24 December 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS BABSON AND STEPHENS On 30 May 1984 Administrative Law Judge Marvin Roth issued the attached decision. The Re- spondent filed exceptions and a supporting brief, and the General Counsel filed cross-exceptions and a supporting brief. Additionally, the Respondent filed three motions to reopen the record and the General Counsel filed a brief in opposition to the Respondent's first motion to reopen the record. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,' and conclusions2 and to adopt the recommended Order as modified. i The Respondent and the General Counsel have excepted to some of the judge's credibility findings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. In adopting the judge's finding that the Respondent violated Sec. 8(a)(1) of the Act by interrogating employees concerning their union sympathies, we do not rely on his citation to Vincent et Vincent of Allen- town Mall, 259 NLRB 1025 ( 1982), insofar as that case applies a per se rule regarding interrogation violations. See Rossmore House, 269 NLRB 1176 (1984). The judge recommended that the Board issue a narrow cease-and- desist order requiring the Respondent to cease and desist from violating the Act "in any like or related manner." We find the Respondent's con- duct in this case egregious enough to warrant the issuance of a broad cease-and-desist order. Accordingly, we shall substitute the broad injunc- tive language, requiring the Respondent to cease and desist from violat- ing the Act "in any other manner," for the provision recommended by the judge. See Hickmott Foods, 242 NLRB 1357 (1979). 2 The Respondent excepts to the judge's finding that it violated Sec. 8(aX3) and (1) of the Act by granting unlawful wage increases, basing its exception, in part, on certain factual errors made by the judge . We have reviewed the decision in light of the record evidence and the Respond- ent's contentions and make the following factual corrections. The judge found that the Respondent's new car make-ready manager, Irv Sherbert, held a meeting with employees under his supervision and thereafter recommended raises to General Manager Hendrick on 4 Janu- ary 1983. However, Sherbert met with these employees and made his recommendations to Hendrick in mid-December 1982. In addition, the judge stated that when Parts Department Manager Richard Gavin rec- ommended raises in January 1983 for three of his employees, their names were added to a list that Hendrick had already prepared containing the names of three other employees also under the supervision of Gavin- employees Conway, Mitchell , and James Sherbert. Employees Conway, Mitchell, and Sherbert, however, were parts department employees in the Porsche-Audi Division, which was not under Gavin's supervision. In cor- recting these errors, we find that the remaining evidence as set forth by the judge fully supports his finding that the Respondent granted unlawful 1. The judge found that the Respondent violated Section 8(a)(3) and (1) of the Act by granting the "technician of the year" award to its mechanics in order to discourage employee support for the Union. We disagree. As noted by the judge, the complaint does not contain any allegations with re- spect to this conduct. At the hearing, the Respond- ent raised the "technician of the year" award by way of defense to other allegations of unlawful conduct found in the complaint. The General Counsel stated that he was not previously aware of such an award, but at no time did he take a posi- tion with respect to the award, nor attempt to amend the complaint to allege the "technician of the year" award as a violation. Since the complaint contains no allegation that this conduct was unlaw- ful, and the General Counsel did not seek to amend the complaint after he learned of the award, nor urge its illegality, we find that the matter was not fully litigated as a violation of the Act. According- ly, we do not adopt the judge's finding that the Re- spondent violated Section 8(a)(3) and (1) of the Act by granting the award. 2. The judge found that the Respondent' s general manager, Ronald Hendrick, violated Section 8(a)(1) of the Act by threatening certain employees that "if the Union got in he would not be able to talk directly to the employees as he had been doing but would have to go to the Union." The Board has recently held in Tri-Cas4 Inc., 274 NLRB 377 (1985), that a statement concerning loss of access to management in the event of unionization does not constitute a threat but "simply explicates one of the changes which occur between employers and em- ployees when a statutory representative is select- ed."3 Accordingly, we find Hendrick's statement did not constitute unlawful conduct. Therefore, we dismiss this allegation of the complaint. 3. In his recommended Order, the judge provid- ed, inter alia, that the election be set aside, that a cease-and-desist order be issued, and that the Re- spondent recognize and, on request, bargain collec- tively with the Union as the exclusive bargaining representative of the employees in the unit found appropriate. We agree.4 wage increases. In so finding, we agree with the judge's conclusion that the unlawful wage increases were violative of Sec . 8(a)(1). Further, we do not rely on any adverse inference the judge may have drawn from employee Archie Brown's testimony that he was never eval- uated pursuant to the Respondent's alleged semiannual review policy. Brown was a body shop employee who was not subject to the semiannu- al review policy described by the Respondent Member Babson additionally notes that the unlawful wage increases constitute independent violations of Sec. 8(a)(1) of the Act under NLRB v Exchange Parts Co., 375 U.S. 405 (1964). a Ibid. 4 In agreeing with the judge that the election should be set aside, Chairman Dotson finds it unnecessary to rely on his citation to Enola Continued 282 NLRB No. 88 KOONS FORD OF ANNAPOLIS 507 In ascertaining whether a bargaining order is warranted to remedy the Respondent 's misconduct we apply the test set out in NLRB v. Gissel Packing Co., 395 U.S. 575 ( 1969). In Gissel, the Court delin- eated two types of situations where bargaining orders are appropriate : (1) "exceptional" cases marked by "outrageous" and "pervasive" unfair labor practices; and (2) "less extraordinary" cases marked by "less pervasive" practices. s Thus, the Court placed its approval on the Board's use of a bargaining order in "less extraordinary" cases where the employer's unlawful conduct has a "tendency to undermine [the union's] majority strength and impede the election processes."e The Court indicated that when the unfair labor prac- tices are less flagrant and the union at one time had a majority support among the unit employees the Board may consider the extensiveness of an employer's unfair practices in terms of their past effect on election conditions and the likelihood of their recurrence in the future. If the Board finds that the possibility of erasing the effects of past practices and of ensuring a fair elec- tion (or a fair rerun) by the use of traditional reme- dies, though present, is slight and that employee sentiment once expressed through cards would, on balance, be better protected by a bargaining order, then such an order should issue.? In considering the Respondent's conduct in this case the judge intimated, without explicitly stating, that the unfair labor practices the Respondent com- mitted fall into the second category rather than the first category.8 We fmd it unnecessary to resolve whether the conduct is Category I or Category II since we fmd that the Respondent's conduct falls into at least the second category and therefore a bargaining order is warranted in any event. The judge noted there were approximately 26 in- stances from mid-November 1982 until the 12 Janu- ary 1983 election in which four of the Respond- ent's officials, including President John Koons Jr., either threatened employees with plant closure, dis- charge, and layoff, more onerous working condi- tions and stricter work rules leading to the dis- charge of employees, and loss of privileges and benefits; interrogated employees concerning their Super Thrift, 233 NLRB 409 (1977), and Dal-Tex Optical Co, 137 NLRB 1782 ( 1962), and any language found therein " Gissel, supra at 613-614. °Id.at614 Id. at 614-615 e The judge stated that the case would have plainly constituted a "Cat- egory I" case had John Koons not backed away from a prior threat to close the plant. In issuing the bargaining order, he found that the Re- spondent "has engaged in a pattern of unremedied unfair labor practices which effectively destroyed the conditions for a free and fair election [and] that those conditions probably cannot and will not be restored at any time in the forseeable future." union sympathies and the organization campaign; or unlawfully solicited employees to campaign against the Union. The most serious of the threats were those of plant closure, discharge, and layoff made by John Koons Jr., Service Manager Tomarchio, and Sher- bert. In early December during the height of the union organizational campaign, Koons, while inter- rogating employee Pierson about the Union, told him that "he didn't need the dealership and he would close it down and turn it into an apartment building or an office building." Later that month, at the annual Christmas party, a heated argument ensued between Hendrick and employee Kubert. John Koons intervened and with several employees present stated that "he did not need Koons Ford of Annapolis, that he had a place in Florida and could close the doors and move to Florida and that life would go on without Koons Ford." In response to Kubert's statement that he would not put his job on the line if he did not feel strongly about the Union, Koons replied, "You already have." Tomarchio engaged in similar threats while in- forming employee Jones that if the Union came in they would lose the benefit of working on cars on their own outside the dealership. Tomarchio told him he would be fired if he attempted to circum- vent that regulation. He reiterated the threats Koons made at the Christmas party by telling Jones that Koons did not need the Annapolis deal- ership and could close its doors and lock employ- ees out. Additionally, Tomarchio told employees Kubert and West that with the stricter regulations that would be established once the Union came in, employees could be fired or fined for coming in late, making unsatisfactory car repairs, or asking for more time to complete a job. Finally, Sherbert also engaged in discharge threats.9 While meeting with some of his depart- ment employees after work, Sherbert threatened on two occasions the two least senior employees in his department that if the Union came in they would be laid off. He also threatened employees Howes and Buckalew with discharge, stating that employ- ees who did "anything wrong," who "goofed," or were "late even once" would be fired. Other threats of reprisal were also made. For ex- ample, General Manager Hendrick threatened that if the Union came in the employees would lose such privileges as "hobby night" (where employees 9 The judge specifically noted that although Manager Sherbert was a low-level supervisor, he was "looked upon as something of a father figure by the young unskilled employees" and "[t]herefore he was in a position to exert strong influence on these employees " We draw no con- clusions from how Sherbert was subjectively perceived by his depart- ment employees and disregard the judge's remark. 508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD used the facility to work on their own cars free of charge), discounts on parts, loans, the annual Christmas party, and leaving work early, all of which benefits were considered important "perks" by the employees. These threats were directed at individual employees as well, as at groups of em- ployees at regularly scheduled service department meetings. Tomarchio also issued threats of this nature to individual employees throughout Novem- ber and December 1982 as did Sherbert at his regu- lar gathering of department employees each night after work. In addition to threatening the employees, interro- gating them, and soliciting some of them to cam- paign against the Union, the Respondent unlawful- ly granted wage increases and redressed employee grievances. Thus, on 6 January 1983 the Respond- ent, to discourage support for the Union, gave pay increases averaging between 25 and 60 cents per hour to 15 used car, parts, and make-ready depart- ment employees. 110 For the same reason, and on the same day, nine body shop employees had their compensation formula changed in response to their expressed complaints, a change that also resulted in an increase in wages for them. Accordingly, the judge found that the Respondent violated the Act by both redressing employees' grievances and by granting an unlawful wage increase."1 In determining whether a bargaining order is ap- propriate, in addition to examining the severity of the violations committed, the Board also examines the present effects of the coercive unfair labor practices that would prevent the holding of a fair election.12 It is highly significant that many of 'the violations present here were of an extremely serious nature. Both the courts and the Board have long recog- nized that threats of job loss (i.e., plant closure, dis- charge, and layoff) because of union activity are among the most flagrant interferences with Section 7 rights and are more likely to destroy- election conditions for a lengthier period of time than other 10 The judge, after analyzing the increases granted to the 15 employ- ees, inadvertently concluded that 16 employees received increases. 11 We agree with the judge that the change in the body shop employ- ees' compensation formula constituted an unlawful redress of grievances with or without the increase in their wages. 12 Quality Aluminum Products, 278 NLRB 338, 339 (1986). See NLRB v. Davis, 642 F.2d 350, 354 (9th Cir. 1981), where the court stated that Gissel instructed the Board to consider the extensiveness of the unfair labor practices, their past effect on election conditions the likelihood of their recurrence, and the probability that a fair election can be held. See also NLRB v. Appletree Chevrolet, 608 F.2d 988, 997 (4th Cir. 1979), where the court stated that since an election is the preferred method for determining a bargaining agent, to justify the issuance of a bargaining order the Board must "go beyond a finding of such unfair labor practices and ... make 'a detailed analysis assessing the possibility of holding a fair election in terms of any continuing effect of misconduct , and the po- tential effectiveness of ordinary remedies."' unfair labor practices. l3 Indeed, the natural and likely result of the threats found here was to rein- force the employees' fear that they would lose em- ployment if they persisted in their union activity. This fear was exacerbated by the fact that these violations were committed by Koons, the Respond- ent's top official, and two department managers of the unit employees. The positions these persons held clearly served to strengthen and amplify in the minds of the employees, the seriousness of the threats conveyed.14 The Respondent's carefully calculated and timed wage increase for 15 make-ready, parts, and used car department employees on 6 January 1983 was an equally serious violation. The same can be said of the 6 January 1983 wage increase to the nine body shop employees resulting from the concomi- tant redress of their grievances to change the com- pensation formula. The body shop employees' com- pensation change was enacted after the Respondent offered employees a choice between the existing formula, over which the employees had constantly expressed their displeasure, and the old formula, which the employees manifestly preferred. This was clearly a "deliberately embarked upon .. . course of action designed to convince the employ- ees that their demands [would] be met through direct dealing with Respondent and that union rep- resentation could in no way be advantageous to them. Obviously such conduct must, of necessity, have a strong coercive effect on the employees' freedom of choice, serving as it does to eliminate, by unlawful means and tactics, the very reason for a union's existence." 15 Wage increases in particular have a potential long-lasting effect, since the Board's traditional remedies do not require the Re- spondent to withdraw the benefits, from the em- ployees.16 Finally, the numerous and extensive threats of loss of benefits and more onerous work conditions, repeatedly and persistently engaged in by the Re- spondent's officials, suggest a careful orchestration and general campaign to destroy employee support for the Union. The success of the Respondent's unlawful cam- paign is illustrated by the clear dissipation of union support during the period of the Respondent's most egregious violations. By 16 December the Union had obtained at least 38 valid authorization cards 13 See, e.g., Gissel, supra at 611 fn. 31 ; Pggly Wiggly v. NLRB, 705 F.2d 1537, 1542 (11th Cir. 1983); Thriftway Supermarket, 276 NLRB 1450 (1985). 14 See Kona 60 Minute Photo, 277 NLRB 867 (1985); Ohio New & Re- built Parts, 267 NLRB 420 (1983). 15 Teledyne Dental Products Corp., 210 NLRB 435 (1974). 16 Red Barn System, 224 NLRB 1586 (1976), enfd. 574 F.2d 315 (6th Cir. 1976). KOONS FORD OF ANNAPOLIS 509 out of a total of 66 unit employees.17 Less, than 1 month later, the Union received only 27 votes in the election. It was within this 3- to 4-week period that John Koons Jr. and other officials of the Re- spondent made threats of plant closure and job loss and within I week of the election granted wage in- creases and redressed employee grievances. The Respondent's officials also throughout this period repeatedly hammered home the theme that union- ization would result in loss of benefits and more onerous working conditions for employees. We find that the inhibitive effects of these unfair labor practices are likely to persist despite a sub- stantial level of turnover and concomitant passage of time.18 We note the judge's finding that a sub- stantial portion of the turnover occurred among the Respondent's younger less skilled employees, while many of the older more skilled employees, who were the direct targets of many of the threats, are still employed. Even assuming the accuracy of the facts as set forth in the Respondent's 1 October 1986 motion to reopen the record, the 21 remaining unit employees include: 3 of the 13 mechanics whose department members were subject to the threats of plant closure and discharge; 4 of the 9 body shop employees whose compensation was changed resulting in an unlawful wage increase and redress of grievances; and 7 of the 15,parts, make- ready, and used car department employees who re- ceived wage increases the week of the election. In 17 The Respondent excepts to the judge's findings that 11 particular authorization cards are valid. Mechanics with helpers were involved in the signing or solicitation of nine of those cards, and the Respondent con- tends that those mechamcs are supervisors under the Act. Of those nine cards, the card of employee McMullen is also alleged by the Respondent to be invalid under NLRB v. Savair Mfg. Co., 414 U.S. 270, 277 (1973). The remaining 2 cards of the 11 that the Respondent challenges as in- valid are those of Lawrence and Epling. The General Counsel excepts to the judge's finding as invalid one card signed , by employee Snodgrass. ]Based on his findings, the judge concluded the Union demonstrated ma- jority support as of 24 November 1982 (32 out of 62 unit employees) and 16 December 1982 (40 out of 66 unit employees). We adopt the judge's finding that the mechanics with helpers were not supervisors under the Act. See Soil Engineering Co., 269 NLRB 55 (1984). Having made this determination , it is clear that by at least 16 De- cember 1982 a majority of the employees had designated the Union as their representative. Accordingly, we find it unnecessary to pass on the validity of the cards signed by employees Lawrence, McMullen, Snod- grass, and Epling. Chairman Dotson, who dissented in Soil Engineering Co. on the basis that the employees with helpers clearly had the independent authority to discharge a helper, would agree with the judge's finding that here the mechanics with helpers exhibited no such authority . Accordingly, he also adopts the judge's finding that the mechanics with helpers were not su- pervisors under the Act. 18 The Respondent filed three motions to reopen the record to present supplemental evidence indicating the change in ownership from John Koons Jr. to Joseph Koons on 1 July 11984 as well as evidence of employ- ee and management turnover subsequent to the hearing . In its latest motion, the Respondent presented evidence that as of 1 October 1986, only 21 of the original 66 unit employees remained and the proposed unit has expanded to 92 employees. We deny the motions to reopen on the basis that, as shown above, the evidence sought to be adduced would not require a different ' result. See Sec. 102.48(d)(1) of the Boards Rules and Regulations. 'light-of the"O.1itensive and repetitive nature of the violations, in particular the threats engaged in at general department meetings, we do not assume that other employees were unaffected. The contin- ued presence of these employees creates a potential that the inhibitive effect of the unfair labor prac- tices remain, preventing the possibility of a fair election.19 Substantially parallel circumstances were present in NLRB v. Air Products & Chemicals, 717 F.2d 141 (4th Cir. 1983), in which the Fourth Circuit en- forced a bargaining order issued by the Board.20 There, the employer engaged in similar unlawful activity, namely, threats to force a strike by not agreeing to union demands, of loss of benefits, and of-the futility of selecting the union,, as well as so- licitation of employees to dissuade other employees from. supporting the union. Additionally, three sep- arate employer officials threatened employees ' with plant closure and there was one threat of dis- charge. As in the instant case, there were no 8(a)(3) unlawful discharges.21 In issuing the bargaining order the Fourth Circuit relied on other factors specified by the Board that are also present in this case, namely, the substantial percentage of employ- ees affected, the serious nature of the threats, the extended period over which the violations oc- curred, and the large number of managers guilty of violations. Id. at 147. The, court 'concluded that these factors "clearly satisfie[d] the specificity re- quirement" the Board must meet to justify the issu- ance of a Gissel bargaining order. Id. at 146. We believe that, under the circumstances of the instant case, simply requiring the Respondent to re- frain from unlawful conduct will not eradicate the lingering effects of the hallmark violations, and will not deter their recurrence. We further conclude that the employees' representation desires, once ex- pressed through authorization cards would, on bal- ance, be better protected by our issuance of a bar- gaining order than by traditional remedies. Accordingly, we adopt the judge's recommenda- tion that the Respondent be required to bargain with the Union as the duly designated representa- tive of a majority of its employees in the unit found appropriate for purposes of collective bargaining, effective 16 December 1982, the date by which the Union acquired authorization cards from a majority 12 See Quality Aluminum, supra. 20 263 NLRB 341 (1982). 21 We note the facts here are even stronger for issuing a bargaining order in that, unlike NLRB v Air Products, there was also an unlawful grant of benefits. 510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of employees in the unit after the Respondent had commenced its unlawful course of conduct.22 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Koons Ford of Annapolis, Inc., Annap- olis, Maryland, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 1(a). "(a) Threatening its employees with plant clo- sure, loss of jobs, job security, or opportunity for advancement, loss of privileges or benefits of em- ployment, more onerous working conditions, futile contract negotiations, or other reprisals if they des- ignate, select, or support District 65, United Auto- mobile, Aerospace and Agricultural Implement Workers of America or any other labor organiza- tion as their bargaining representative." 2. Substitute the following for paragraph 1(g). "(g) ' In any other manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act." 3. Substitute the attached - notice for that of the administrative law judge. IT IS FURTHER ORDERED that the election in Case 5-RC-11899 is set aside and that the petition is dismissed. 22 See fn. 17 supra. We need not decide whether the Union had a ma- jority at an earlier date since all of the Respondent's unfair labor prac- tices committed prior to 16 December 1982 are otherwise specifically remedied. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT threaten you with plant closure, loss of jobs, job security, or opportunity for ad- vancement, loss of privileges or benefits of employ- ment, more onerous working conditions, futile con- tract negotiations, or other reprisals if you desig- nate, select, or support District 65, United Auto- mobile, Aerospace and Agricultural Implement Workers of America or any other labor organiza- tion as your bargaining representative. WE WILL NOT coercively question you about your union attitude or activities or those of your fellow employees. WE WILL NOT solicit you to engage in antiunion activity. WE WILL NOT grant wage increases or other im- provements in terms and conditions of employ- ment, or remedy grievances, in order to discourage support for District 65; provided, however, that nothing herein requires us to vary or abandon any economic benefit or any term or condition of em- ployment that we have heretofore established. WE WILL NOT refuse to recognize or bargain collectively with District 65 as the exclusive bar- gaining representative of our employees in the fol- lowing appropriate unit: All full time and regular part time Service De- partment employees, including mechanics, body and paint shop workers, parts depart- ment employees, drivers, helpers, make ready employees, porters, dispatchers, and janitors employed at our Annapolis, Maryland, facility, but excluding sales persons, office clerical em- ployees, guards and supervisors as defined in the Act. WE WILL NOT unilaterally change wages or other terms or conditions of employment without prior notice to District 65 or without affording District 65 an opportunity to negotiate and bargain concerning such matters. WE WILL NOT in any other manner interfere with, restrain; or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL recognize and, on request, bargain col- lectively in good faith with District 65 as the ex- clusive bargaining representative of our employees in the unit described above, and embody in a signed agreement any understanding reached. KOONS FORD OF ANNAPOLIS, INC. Joseph J. Baniszewski Esq. and Edward Noonan, Esq., for the General Counsel. Robert E. Campbell, Esq. and Susan S. Grover, Esq., (Donovan, Leisore, Newton & Irvine), of Washington, D.C., for the Respondent-Employer. Larry Steele, of Martinsburg, West Virginia, for the Charging Party-Petitioner. DECISION STATEMENT OF THE CASE MARVIN RoTH, Administrative Law Judge. These consolidated cases were heard at Baltimore, Maryland, on June 6 through 9 and 20 through 24 and on October 17 and 18, 1983. The charge was filed by District 65, United Automobile, Aerospace and Agricultural Imple- KOONS FORD OF ANNAPOLIS ment Workers of America (Union) January 17^-1983. The complaint, which issued on March 14 and was amended at the hearing, alleges that ,Koons Ford of An- napolis, Inc. (Respondent or the Company), violated Sec- tion 8(a)(1), (3), and (5) of the National Labor Relations Act. The Company's answer denies the commission of the alleged unfair labor practices. Pursuant to a Stipulation for Certification upon Con- sent Election approved by the Regional Director on De- cember 16, an election was conducted on January 12, among the employees in the following appropriate unit: All full time and regular part time Service Depart- ment employees, including mechanics, body and paint shop workers, parts department employees, drivers, helpers, make ready employees, porters, dis- patchers and janitors employed at [the Company's] Annapolis, Maryland, facility but excluding sales persons, office clerical employees, guards and super- visors asdefned in the Act. The tally of ballots showed that of approximately 66 eligible voters, 27 voted for the Union and 39 voted against the Union. There were no challenged ballots. The Union filed timely objections to the conduct of the election, numbered I through 15, but subsequently with- drew Objections,5, 7, 8, and 14. On March 25 the Re- gional Director issued his Report on Objections, ,fording that the objections covered the same subject matter as the unfair labor practice complaint. The Regional Direc- tor ordered that the unfair labor practice and the repre- sentation cases be consolidated for the purpose of hear- ing, ruling, and decision by an administrative law judge, and that thereafter, the representation case be transferred to and continued before the Board. All parties were afforded full opportunity to partici- pate, to present relevant evidence, to argue orally, and to file briefs. On the entire record in this case,2 and from my observation of the demeanor of the witnesses, and having considered the briefs submitted by the General Counsel and the Company, I make the following FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT The Company, a Maryland corporation with an office and place of business in Annapolis, Maryland, is engaged in the retail sale and service of automobiles. In the oper- ation of its business, the Company annually derives gross revenues in excess of $500,000, and annually purchases goods and materials valued in excess of $5,000 directly from points outside the State of Maryland. I ford, as the Company admits, that it is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 1 All date, herein are for the period from July 1, 1982, 'through June 30, 1983, unless otherwise indicated. 8 The official transcript of proceedings is corrected in accordance with my order to show cause dated March 15, 1984. 511 IL THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ISSUE The principal issues in these cases are: 1. Whether the Company engaged in interrogation, threats of plant closure, discharge, layoff, loss of job se- curity and opportunity for promotion, deprivation of benefits and privileges, more onerous working condi- tions, futility of selecting the, Union, as bargaining, repre- sentative-and other reprisals, solicitation of employees to inform management about union activities and to talk against the Union to other employees, all in order to dis- courage support for the Union, and thereby violated Sec- tion 8(a)(1) of the Act. 2. Whether the Company granted pay increases, bo- nuses, and other changes in employee compensation in order to discourage employee support for the Union, and thereby violated Section 8(a)(1) and (3) of the Act. 3. Whether the election of January 12 should be set aside. 4. Whether by the above alleged unfair labor practices the Company precluded the holding of a fair election, and therefore violated Section 8(a)(5) and (1) of the Act by refusing to recognize and bargain with the Union as representative of the employees in the appropriate unit and unilaterally changing terms and conditions of em- ployment. Subsidiary to this issue are the questions of whether an uncoerced majority of the Company's unit employees designated the Union as their bargaining rep- resentative, and whether mechanics with helpers are su- pervisors within the meaning of the Act, as alleged by the Company. (The status of these mechanics is also sub- sidiary to alleged violations of Section 8(a)(l) involving those individuals'.) IV. BACKGROUND AND PRELIMINARY ISSUE: THE COMPANY'S OPERATIONS AT ANNAPOLIS, AND THE STATUS OF MECHANICS WITH HELPERS In order to place at least some of the present allega- tions in proper perspective, it is necessary to consider the history and organizational structure of the Company's operations. The Company is one of four automobile deal- erships that are owned and actively controlled by John W. Koons-Jr. The other three, all in Northern Virginia, are JKJ Chevrolet, Koons Chrysler-Plymouth, and JKJ Chrysler-Plymouth. Koons also has a dealership in Flori- da, but he is not actively involved in its day-to-day oper- ations. Koons is president of each of the dealerships. Since June 1981, Ronald Hendrick has served, as the Company's general manager in charge of the Annapolis dealership. Ned Tomarchio became service department manager in late March 1982, succeeding Bob Rose. To- marchio abruptly terminated his employment with the Company on December 20, 1982, under circumstances that will be discussed. James Collins, who previously served as a dispatcher and assistant to Tomarchio, became acting service manager and subsequently (in late January) was designated as service manager. However, 512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in April, Collins was replaced in that capacity by Dave Sparrow. Collins remained in a subordinate capacity to Sparrow as administrative service manager. The service department, which is the most important department in- sofar as the present case is concerned, includes line me- chanics (also known as technicians), service writers, the dispatcher, porters and mechanics' helpers. The body shop manager also reports to the service manager. At all times material, Betty Dorr was body shop manager. In December 1982 the department had six body, or metal, employees and three painters. Linwood Hall was body shop foreman (subordinate to Dorr) until some time in December. In early January, body employee Thalsberg (Crip) Brown was promoted to foreman.3 The sales de- partment, headed by John Taber, includes new- and used-car sales and the finance office. In December and January, Mario Debini was in charge of new-car sales. Irv Sherbert, who is and was at all times material new- car make-ready manager, normally reported to Debini, except that on technical matters he would report to the service manager. Make-ready included one mechanic and about five employees whose principal jobs were to clean, undercoat, and otherwise prepare new cars for delivery and to do general maintenance work on the premises. Edward Christmas was used-car manager. In December and January the used-car department included three me- chanics and one make-ready employee, in addition to nonunit salesmen. The finance office, headed by Comp- troller Bob Schmick, included about six clerical employ- ees. The' parts department, headed by Richard Garvin, included counter (sales), employees, clerks, and drivers. There is also a general office. The Company also has a Porsche-Audi dealership, headed by Hendrick, parallel to but smaller than the Ford dealership, with its own sales, parts, and service departments. (The unit includes both the Ford and Porsche-Audi dealerships.) In December and January, there were approximately 13 line mechanics in the Ford service department and 3 in the Porsche-Audi service department. The line me- chanics, who are skilled workers, were normally paid on a flat-rate hour basis. The mechanics were paid an hourly rate of up to $12.25 per hour, depending on their qualifications, i.e., number of certifications in specialized areas. However, they were not paid by the clock. Rather their pay depended on the time allowed for each job by the Chilton Manual, or the Ford Manual for warranty work. Thus a proficient mechanic could "beat the system," and thereby enhance his earnings, by regularly performing satisfactory work in less than the manual time (flat rate). Some mechanics found that they could also enhance their earning capacity by having a helper, i.e., an unskilled individual who was in the process, of learning automotive mechanics work. Two mechanics (James Felesky and John Leary) each had one helper (Pat Evans and Daniel Pearsall, respectively). Mechanic Karl -Jones had two helpers (Ed Buckalew and John a'Brown testified that he was promoted as of January 1 . General Man- ager Hendrick testified that he promoted Brown 1 or 2 days after he de- livered a speech to the service department employees . However, the Company's records indicate that Brown was promoted to "body shop es- timator" on January 5, the day Hendrick delivered the speech. I find that Brown was promoted prior to the speech Howes). Use of a helper was initiated at the request or direction of the general manager or the service manager. The evidence fails to indicate that any mechanic sought to obtain a helper. (When Service Manager Tomarchio told Jones that he should take a second helper, Jones suggested Howes, then a porter, because helper Bucka- lew had recommended him. However , Jones was not fa- miliar with Howes' qualifications, and did not even want a second helper.) Indeed, it was Tomarchio's idea that selected mechanics should have helpers. The Company was primarily interested in using its mechanics to train other employees. As far as the mechanics were con- cerned, helpers were useful only if and when the helper progressed sufficiently in his work to generate income (for the mechanic) that exceeded the helper's hourly wage. As will be discussed, these two interests did not always coincide. The helpers were paid an hourly wage, either the min- imum wage or slightly more Usually, but not always, their wages were deducted from the mechanic 's earnings. However, the Company processed the helpers paychecks (as it did for mechanics and all other personnel ), and also paid the helpers' fringe benefits (holiday and vacation pay and employer insurance contributions). When help- ers were temporarily transferred to other work (always at the Company's direction), e.g., to make-ready, the Company paid their wages. In the case of Daniel Pier- sall, both Manager Hendrick and Leary recognized that he had personal problems that were interfering with, his work, and therefore that he would be of questionable benefit to Leary.4 Eventually Leary informed Hendrick that Piersall was simply a "goof-off." On the basis of Leary's opinion, Hendrick terminated Piersall. ' The mechanics have little authority over their helpers, beyond training them and directing them in their work of helping the mechanics. The mechanics had no author- ity to hire, transfer, lay off, or terminate their helpers, or even to alter their wages, although the mechanics usually absorbed the cost of those wages. If a mechanic felt that he did not have enough work to justify a helper, or that the helper was not working out well, he could so inform the general manager or the service manager, who would then decide what action to take, e.g., suggest that the mechanic give the helper a further try (as Tomarchio ini- tially did with a previous Jones' helper), transfer the helper to other work (as with helper Evans), or termi- nate the helper (as with Piersall and eventually with Jones' former helper, Kevin McMaster). If the mechanic has an attitude or other similar problems with the helper, he would not attempt to discipline the helper. Instead (as did Leary with Piersall), he would report the problem to the service manager, who would take such action as he deemed appropriate. The mechanics did not even have authority to alter their helper's working hours, e.g., by letting the helper leave early.5 If the mechanic felt that 4 Hendrick initially testified that Leary paid Piersall's wages. Howev- er, after examining pertinent company records, Hendrick admitted that this was not true. 5 General Manager Hendrick testified that the mechanics had such au- thority. However, his testimony is inconsistent with the testimony of Continued KOONS FORD OF ANNAPOLIS 513 his helper was working out well , and deserved a raise, he could so inform the general manager or service manager (as Jones did with Buckalew). As the increase would be coming from the mechanic's pay, the Company had little reason to reject such requests. Thus Manager Hendrick testified that it basically made no difference to the Com- pany whether the mechanic was willing to give the helper an increase. The Company did not, until the third day of this hear- ing, contend that mechanics with helpers were supervi- sors under the Act. Indeed, the Company stipulated that Felesky, Leary, and Jones were eligible to vote in the election, and did not challenge their ballots . At the hear- ing, I ruled that the Company could litigate their alleged supervisory status in this proceeding . However I also stated, and I now so find , that the Company's prior stip- ulation may properly be considered as an admission against interest. According to company counsel, the Company reconsidered its prior position after hearing testimony by former line mechanic Thomas Dixon that he considered John Leary to be a supervisor because he "had people working under him." (In fact , Leary had only one helper.) However, the Company, and specifical- ly Manager Hendrick, who was intimately involved in all aspects of the Company's operations, did not learn any- thing about the status of the line mechanics as a result of this hearing that he did not already know. If the mechan- ics with helpers enjoyed supervisory authority , then it is obvious that Hendrick would have been aware of that fact at the time of the representation hearing. Moreover, the evidence adduced with regard to the Company's overall operations in general and line mechanics in par- ticular, indicates that within the Company's operating structure, line mechanics enjoyed the same status regard- less of whether they had helpers. All mechanics punched a timeclock, received an hourly wage based on their in- dividual qualifications as mechanics, and were paid on the flat-rate system (i.e., on the basis of their output of mechanical work). In contrast the Company 's managers (admittedly su- pervisors) were paid on a salary plus commission or in- centive basis, and did not punch a timeclock . The me- chanics had no authority over any employees other than their own helpers. Each manager had or shared an office. In contrast each mechanic had only his own work stall. All mechanics were required to wear blue work uniforms; the managers wore street clothes or executive- type uniforms, except for James Collins, who by his own choice wore the work uniform. The line mechanics, re- gardless of whether they had helpers, spent nearly all of their time performing mechanical work. In contrast the managers except for Irv Sherbert, performed little or no unit work, and even Sherbert spent much of his time di- recting the work of the make-ready crew. The managers former Service Manager Tomarchio, made in a different context, that even the mechanics had to request permission to leave early If the me- chanics could not leave early without permission from the manager, then it is unlikely that they could independently grant such leave to their help- ers Moreover, helpers might be needed for temporary transfer to other work. Therefore I credit the testimony of helper Buckalew that if he wanted to leave early he would ask mechanic Jones, who would then check with the service manager attended periodic managerial meetings , including meet- ings concerning the Union's organizational campaign. The mechanics, including those with helpers, were not invited and did not attend such meetings. However, all mechanics were required to attend service department meetings, together with other department employees. All line mechanics were subject to the provisions of the Company's "Technicians Job Description," which pur- ported to reflect company policy, and which indicated close supervisory control over the line mechanics. For example, mechanics could obtain work only from the dis- patcher, they could be disciplined for excessive "come- backs," they had to punch a timeclock and obtain per- mission to arrive late or leave early, and they were re- quired to attend service department meetings and to park in a lot assigned for their use. The mechanics job description contained 27 provi- sions, only one of which made any distinction between mechanics with helpers and those without , namely rule 13, which provided that "technicians with apprentices or helpers are responsible for repairs done by their helpers." These provisions are inconsistent with the discretion usu- ally accorded to personnel with supervisory status. As part of its defense on the merits of this case , the Compa- ny presented testimony and other evidence to show that the Company has a semiannual review policy , at least for "non-productive personnel," i.e., those paid on the basis of a fixed salary or hourly wage, in the service depart- ment. Although this would include mechanics' helpers, no evidence was presented that the mechanics with help- ers were ever involved in this process. It is evident that the limited authority given to the mechanics with helpers was intended to facilitate the work of the mechanics and more importantly, as part of the process of training em- ployees who themselves were potential mechanics, to the point where they could work on their own. As former service manager Tomarchio put it so aptly in his testimo- ny, "You don't need one supervisor for every person working." Tomarchio's explanation is a virtual admission that the mechanics cannot be regarded a supervisors. The recent Board decision in Soil Engineering Co., 269 NLRB 55, 56 (1984), is dispositive of the Company's contention. That case involved the question of whether drillers with helpers were supervisors under the Act. The Board found that the employer followed a policy of taking disciplinary action against helpers , including dis- charge, based on the recommendations of the drillers. Nevertheless, the Board, reversing the determination of the Administrative Law Judge, found that the drillers were not supervisors. The Board held that "the authority that the drillers exercised in directing their helpers' work is no different, in our view, from that any skilled work- ers has over helpers and apprentices. In so holding, we note that, were we to find the drillers to be supervisors, the result would be a highly disproportionate ratio of one supervisor for each employee. Such a ratio is unreal- istic, and incompatible with a finding that the drillers are supervisors."e The Board also cited as authority Southern Chairman Dotson dissented on the basis of evidence that the drillers had authority not simply to recommend discharge, but to discharge a Continued 514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bleachery, 115 NLRB 787, 791 (1956), enfd. 257 F.2d 235 (4th Cir. 1958), cert. denied 359 U.S. 911, in which the Board found that machine printers with helpers were not supervisors, holding that: We have no doubt that almost any employer, when told by a skilled craftsman that his helper is incom- petent and that he needs a new helper if he is prop- erly to perform his functions, would accept the judgement of the craftsman . While this may be called effective recommendation, it is inherent in the craftsman-helper relationship. See also Gulf Bottlers, 127 NLRB 850, 858-861 fn. 3, (1960), enfd. sub nom. Brewery Workers v. NLRB, 298 F.2d 297 (D.C. Cir. 1961), cert. denied 369 U.S. 843 (1962).' Therefore, I find that the mechanics with help- ers were employees under the Act. V. THE UNION ORGANIZATIONAL CAMPAIGN AND THE UNION'S ALLEGED MAJORITY STATUS In September 1982 mechanics Joseph Smith and Ricky Kubert contacted the Union . Subsequently union orga- nizer Larry Steele arranged a meeting at Smith's home on November 4. Steele, seven line mechanics (Smith, Kubert, John Chambers, Jim Felesky, Hugh Minter, Jack Ward, and Donald West), and Smith's 18-year-old daughter Lisa (not an employee) were present. Steele spoke to the employees. He explained that if the Union obtained signed cards from a majority of employees, they would ask the Company to recognize the Union, and if the Company did not, there would have to be an elec- tion. Steel also explained the negotiation process. He dis- tributed "single purpose" authorization cards that stated above the signature line "I hereby accept membership in District 65, and of my own free will hereby authorize District 65, its agents or representatives to act for me as a collective-bargaining agency in all matters pertaining to rates of pay, wages, hours, or other conditions of em- ployment." Steele explained that an employee became a union member by signing a card. Steele did not discuss initiation fees and dues at this meeting. Ordinarily, I would defer discussion of the question of majority status until after discussion of the alleged unfair labor practices. However, in the present case the Compa- ny has questioned the validity of most of the Union's au- thorization cards, and the questions presented cut across h e l p e r "on t h e spot ... if the driller felt that the helper was not worth his time." In the present case, the mechanics had no independent author- ity to terminate their helpers. T Georgia Pacific Corp., 225 NLRB 866 (1976), principally relied on by the Company, is distinguishable on its facts. That case involved the status of lumber jobbers who utilized their own equipment in hauling lumber pursuant to contract with the employer, and used and paid from one to eight drivers to perform this work. The evidence indicated that the job- bers "hire, fire, discipline, assign, transfer and otherwise responsibly direct the drivers of their equipment." The Board found that the jobbbers were not independent contractors, but were supervisors of the employer. The facts in Georgia Pacific are plainly not comparable to those of the present case and the cases cited above . Land O'Lakes, Inc., 204 NLRB 519, 522 (1973), also relied on by the Company, involved a fact situation similar to that in Georgia Pacific, in which the Board held that multiple- owner drivers who "hire and fire the nonowner drivers who operate their equipment," were supervisors under the Act. the span of union activity. Additionally, the fact and timing of union activity, both generally and as to particu- lar individuals, is at least arguably relevant to resolution of some of the unfair labor practice allegations . There- fore, I shall take up the question of majority status at this point in the decision. During the period from November 1 through January 10, there were 55 employees who were continuously em- ployed in the appropriate unit . The total size of the unit ranged from 59 on November 1 to a peak of 67 on De- cember 7 and 8. Thereafter the unit remained at a level of 66 through December 10. During this period (Novem- ber 1 through January 10) 12 employees were hired, 4 were terminated and another (Walker Liveramento) was hired on November 18 and terminated on December 9. The General Counsel contends that 41 unit employees signed valid authorization cards , during the period. Among the card signers, 35 were employed continuously during the period and 5 were hired on or before Decem- ber 9 and remainded employed throughout the period. The remaining signer was Livramento . The complaint al- leges that the Union attained majority status as of De- cember 10. However, the General Counsel in its brief as- serts that the Union actually attained majority status on November 17 and maintained that status throughout the period. Testimony was presented that six of the seven employ- ees present signed authorization cards at the close of the November 4 meeting.8 Smith, Kubert, Felesky, and West each testified that they read , filled out, and signed their respective cards. Smith testified that he saw Minter fill out and sign his card and give it to Steele . Smith, Kubert, and West testified in sum that Chambers took a card, but asked Lisa Smith to fill it out because he did not have his glasses. She did so, whereupon Chambers signed the card and gave it to organizer Steele. I find that all six cards were valid. It is settled law that where an issue is raised as to the authenticity of signatures on cards, they may be authenticated by persons other than the card signer, including persons who witnessed the signing or who received the cards from the signatories. McEwen Mfg. Co., 172 NLRB 990, 992 '(1968), enfd. sub nom. Amalmagated Clothing Workers v. NLRB., 419 F.2d 1207, 1209-1210 (D.C. Cir. 1969), cert. denied 397 U.S. 988 (1970). Chambers' card was plainly valid. Even if he were not able to read the card without his glasses, he nevertheless signed the card after organizer Steele truth- fully explained its purpose, and he furnished the informa- tion for Smith's daughter to enter on the card. (There is no dispute that the information on the card, e.g., Cham- bers' address, telephone and social -security numbers, 'and wage rate, were correct.) Three more employees signed cards on November 8. Thomas Dixon and Carroll (Fred) Pierson authenticated their respective cards. Pierson subsequently became a principal . union adherent. Ricky Kubert testified that he asked mechanic Ronald Kawecki to sign a card. Kubert explained that they were trying to get in a union and that Kawecki would become a member by signing the 8 Ward, the seventh employee, was terminated on November 30. KOONS FORD OF ANNAPOLIS card. Kawecki said that he wanted to join. He filled out and signed the card and returned it to Kubert . It is im- material that Lisa Smith entered the Company's name and address and service department on the cards, or that some other person entered other job information on Dixon's card. It is evident that the employees signed the cards in connection with their employment with the Company. Therefore even if such information was en- tered after the employee signed the card it would not alter the meaning or significance of the card. 9 Compare, Dollar Rent-A-Car, 236 NLRB 206, 210 (1978), in which the Board held as valid a card that was signed in blank. Therefore, I fmd that the cards were valid. t 0 On November 9 additional cards were solicited in the shop, and there was another meeting at Smith's home. Karl Jones testified that he signed his card at the meeting after organizer Steele asked him to join the Union. Having found Jones to be a employee, I find that his card is valid. Mechanic Robert Russell testified that he also signed his card at the meeting. Russell testified that he signed, dated, and filled in all of the card except for the Company's name and address. Russell testified that he thought his wife entered that information , although the handwritting appears to be that of Lisa Smith. For the reasons discussed in connection with similar cards, I fmd that Russell's card was valid . Joseph Smith testified that on November 9 he obtained signed cards in the shop from painter Bret Anderson and mechanic Darryl Horan. Smith testified in sum that each employee signed, dated, and completed the card, except for portions that were completed by Lisa Smith (company name and address and department) and returned the card to him. Smith also testified that Horan told him that he was interested in joining the Union . Horan's card was dated " 10/9/82." However there was no card solicitation prior to Novem- ber 4. It is evident that Horan incorrectly dated the card. I credit Smith, and I fmd that the cards were valid. Body shop employees Thalsberg Brown and Sedgewick Cole each testified concerning their respective cards. Brown testified that Joseph Smith gave him a card in the shop, that he signed, dated and completed the card (except for the company name and address and depart- Pierson testified that the Company's name and address and his job tide were written on his card when he signed it. In view of the consistent pattern of cards in which the Company's name and address and service department were entered by Lisa Smith , I find that such information was entered by her on blank cards at the November 4 meeting It is unlikely that employees would have consistently failed to fill in such information Therefore, by signing the cards the employees ratified such information, just at they ratified the printed text of the card. 10 The Company asserts (Br 223-225) that the Board will not deter- mine majority status based on cards containing "irregularities," e.g., in- formation subsequently added , erasures, or printed names, absent personal authentication by the signator The assertion is incorrect. See Amalgamat- ed Clothing Workers (McEwen Mfg) v NLRB, supra, 419 F.2d at 1209 fn 1, Daybreak Lodge Nursing Home, 230 NLRB 800, 804 (1977), enfd. 585 F 2d 79 (3d Cir 1978) The Company 's argument might be persuasive in a situation involving a serious discrepancy that could only be adequately explained by the signer Thus in the present case, with regard to the card of Roy Eping (which will be discussed), evidence indicated that Eping was not employed by the Company when he signed the card In these circumstances I ruled that the General Counsel would probably have to produce Epling in order to explain the circumstances under which he signed the card However, the cards signed on November 8, and other cards containing similar entries, do not present a comparable problem 515 ment, which were evidently completed by Lisa Smith), and that he returned the card to Smith. Brown was sub- sequently promoted to foreman, but he nevertheless voted in the election. I find that Brown's card may prop- erly be considered as evidence of the Union's status until January, when he was promoted to a supervisory posi- tion. Cole testified that he also obtained a card from Smith in the shop, signed, dated, and completed the card except for the portion completed by Lisa Smith, and re- turned the card to Smith. Cole testified that Smith told him that he would become a member if he signed, that the purpose of the card was to "get a union going," and that "if we get a majority vote may be we could [get] a union in the shop." However, Smith did not say that there would be an election. I find that his card was valid. See NLRB v. WKRG-TV,, Inc., 470 F.2d 1302, 1317-1318 (5th Cir. 1973); Peerless of America v. NLRB, 484 F.2d 1108, 1117-1118 (7th Cir. 1973). Ricky Kubert testified that he obtained signed cards from body shop employees Kenneth Boston and Henry Brown and mechanic John Grubb, all dated November 9. Kubert told the employees that they would become union members by signing the card, and that he did so in accordance with organizer Steel's explanation . In each instance the employee signed, dated, and completed the card (except for the portion filled in by Lisa Smith) and returned the card to Kubert. I find the cards were valid. Smith and Kubert obtained additional signed cards at work on November 10, 11, and 12. Smith testified that he gave cards to dispatcher Joseph Wellman and (then) porter Daniel Piersall , asked each employee if he was in- terested in joining the Union and was willing to sign a card, and told each to read the card. Smith further testi- fied that each employee filled out, dated, and signed the card and returned the card to him. The cards are dated November 10 and 11, respectively. I find they are valid. Kubert testified that he gave a card to body shop em- ployee Archie Brown, that they had previously discussed the Union, that Brown indicated that he wanted to sign a card, and that Brown signed and completed the card (except for the portion filled out by Lisa Smith) and re- turned it to him. Brown's card dated November 10 is valid. Mechanic's helpers John Howes and Edward Bucka- lew each authenticated their own cards. Both are dated November 10. Howes testified that he got the card from Smith; that he read, completed, dated, and signed the card; and that he returned it to Smith. Buckalew testified that he got his card from Kubert; read, completed, dated, and signed the card; and returned it to Smith. Buckalew testified that Kubert told him that the purpose of the card "was to organize a union, get a election, and have the UAW represent us." However, Kubert did not tell Buckalew that the cards would be used only to obtain an election, or that the Union would seek representative status only through an election. I find that the cards of Howes and Buckalew are valid. Parts counterman John Lawrence authenticated his own card, dated November 12. Lawrence testified that Smith gave him the card as they were leaving for lunch; that he took the card and read, filled out, and signed it; and that he returned the 516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD card to Smith about 30 minutes later. Lawrence testified that Smith asked him if he was interested in getting the Union into the shop and if so, that he should fill, out the card. Lawrence answered that he was interested, and that he previously belonged to a Union. Lawrence fur- ther testified that Smith also said that "they were trying to find out how many people were interested and to fill out the cards would give them an idea if they had enough people in order for the Union to come in to have a vote at a later date," and that if there were enough people interested in it, that later on their would be an election to find out if the Union gets in or not." Howev- er Smith did not tell Lawrence that the cards would be used only to obtain an election. Indeed, he specifically told Lawrence to sign the card if he was interested in having the Union in the shop (not if he was simply inter- ested in having an election). As matters turned out, Smith's prediction of an election was correct. The card is valid. WKRG-TV, supra; Peerless of America, supra. Parts counterman Carlos Cully testified that he ob- tained his card from Sedgewick Cole; that he read, com- pleted, and signed the card; and that he returned it to Cole. The card is dated November 12. Cully testified that before signing the card he spoke to some of the me- chanics, and that he did not discuss the purpose of the card at the time, he signed it. However, according to Cully, Cole subsequently' told him that the purpose of the card was "to get the ball rolling," and that when Cully asked him to explain what he meant, Cole failed to do so (although Cully admitted that he did not give Cole time to explain). As Cole did not "deliberately and clear- ly cancel-the "clear language" on the card "with words calculated to direct the signer to disregard and forget the language ''above his signature," the card was valid. NLRB v. Gissel Packing Co., 395 U.S. 575, 606-607 (1969). There was considerable organizational activity during the week of November 15, particularly among the make- ready and other unskilled employees. Joseph Smith, testi- fied that he gave janitor Richard Allsup a card, explain- ing that he should read the card and sign it if he wanted to join the Union and have the Union represent him. Smith testified that Allsup signed, dated, and completed the card and returned it to him. The card, dated Novem- ber 16, was valid. Porter Patrick Evans authenticated, his own card. Evans testified that he got his card from Smith and Kubert; that he read it, filled it out, and signed it; and that he returned the card to Smith. The card, dated November 16, was valid. Porter Michael Oli- ver's card, dated November 17, was authenticated by Oliver and by Sedgewick Cole, who gave him the card. Oliver testified that he read, signed, and completed the card.- Cole testified that he told Oliver that conditions were bad,' that the Union might help, and that they were trying to get up a union. The card was valid. Karl Jones testified that on November 16 he spoke to make-ready employees, Bruce Bennett, Donald McMul- len, and Robert Sanford, and gave them authorization cards. Jones testified that he asked the employees "if they wanted to sign the cards to have the UAW repre- sent them." He told them to read and make sure they un- derstood the cards and he offered to answer any ques- tions. He also told them that the cards would show, how many employees would support the Union, and would also be a way for the Union to contact the employees. Jones testified that he told them that the initiation fee was $10 and that monthly dues would probably equal 2 hours' pay. Bennett and McMullen each filled out and signed a card that day. Sanford returned a signed, dated, and completed card to Jones the next day, after discuss- ing the matter with his parents. Sanford, Bennett, and McMullen were each presented as company witnesses. Sanford did not testify concerning his card. Bennett testi- fied that dues and initiation fees were not discussed when he signed his card, but he did not otherwise contradict Jones' testimony. McMullen testified that at the "first" union meeting, organizer Steele said the initiation fee was $10, but that if the Union came in, those employees who did not pay their fee would have to pay $80 or $90. According to McMullen, this meeting took place at a restaurant, Mike's Crab House, and he probably signed the card after the meeting, although he could not re- member whether Smith or Steele gave him the card. So far as indicated by the present record, the only union meeting at Mike's Crab House took place on December 14. McMullen's card is dated November 16. Ricky Kubert testified that at a union meeting Steele explained the Union's initiation fee and dues policy. Steele told the employees that the initiation fee was $10, that they could pay the fee any time, and that dues would not be collected until the Company and the Union signed a contract. In light of McMullen's incredible testi- mony concerning the sequence of events, I credit Jones and Kubert. Jones unequivocally made clear to the em- ployees that by signing the cards they were designating the Union as their representative. Jones' statement that the cards could also be used for informational purposes, did not denigrate from their use for representational pur- poses. The cards were valid. Body shop employee Peter Maloney testified that he read, completed, dated, and signed ' his card, which is dated "Oct 15-82." Maloney testified that he did not know the exact date on which he signed the card. The card was stamped as received in the Board's Regional Office on November 24, the day the Union filed its elec- tion petition. Maloney quit the Company on December 6. I find that Maloney misdated the card, and that he probably signed the card on Monday, November 15. In any event the card should be considered as having been signed not later than November 24, when it was submit- ted to the Regional Office. Gordonsville Industries, 252 NLRB 563, 596-597 (1980), enfd. mem. 673 F.2d 550 (D.C. Cir. 1982). I find that Maloney's card is valid evi- dence of the Union's status until December 6, when he quit his job. Joseph Smith testified that on November 16 he gave a card to mechanic - James Rose, and asked if Rose's fian- cee, Tracy Snodgrass, a make-ready employee, would be interested in joining the Union. Rose said she probably would. Smith gave Rose a card and Rose gave it to Snodgrass. Smith testified that he saw Snodgrass fill out the card and return it to Rose, who gave it to Smith. The next day Rose quit his job. Snodgrass, ,who married KOONS FORD OF ANNAPOLIS 517 Rose in the summer of 1983, was presented as a cOmpa- ny witness. Snodgrass , testified that Rose gave her the card, which was already filled out, and told her ,to hurry and sign it and he would explain later . Snodgrass signed the card without reading it. That evening Rose told her that it was a union card . Snodgrass testified that at the time she signed the card she was not aware of the orga- nizational campaign, but later learned of the campaign, and was told that the card would bring a union into the shop. However, she did not ask the Union to return her card. I credit Snodgrass' explanation. Smith testified that he thought Snodgrass signed the card in the morning, al- though Snodgrass was a high school student who worked from 4 to 9 p.m. Therefore, I do not credit Smith's testimony that he saw Snodgrass fill out the card. The evidence fails to indicate any organizational activity among the make-ready employees prior to No- vember 16. Therefore Snodgrass, who reported to work in late afternoon, may not, have heard any talk about the Union before she signed the card. Snodgrass trusted Rose, and her trust was based on their personal relation- ship. However, figuratively speaking Rose wore two hats. Rose was Snodgrass' financee, but he was also acting as a union representative . In soliciting union mem- berships, Rose was obligated to adhere to the same standard of fairness as were leading union adherents like Smith and Kubert. Instead, Rose took advantage of his` personal `relationship with Snodgrass, and deprived her of an opportunity to consider or even read the card. Therefore, I find that Snodgrass' card cannot be consid- ered as evidence of the Union's status. By, letter dated November 23 the Union requested rec- ognition from the Company, and the next day the Union filed its petition for an election. The evidence fails to in- dicate that the Company ever responded to the Union's request. As of November 24, 32 employees had by sign- ing cards, validly designated the Union as their bargain- ing representative. During the period from November 17 thru 28 there were 62 employees in the appropriate unit. Therefore'as of November 24 a majority of employees in the unit had designated the Union as their representative. Subsequent organizational activity was, principally but not exclusively directed at' new employees . Walter Livra- mento, who signed a union card dated November 25, tes- tified that porter Evans gave him his card. Livramento testified without contradition that Evans told him that the card was to get the ' employees into the Union, that the Union meant job security, that there would soon be an election, and that "we had to give $10 to be ... in the election." Evans, who himself had only recently signed a card, may well have garbled his information. There is no evidence that organizer Steele or any princi- pal union adherents ever told anyone that they had to sign a union card in order to vote in the election. How- ever, Livramento was a new employee, and may well have believed Evan's statement. I fmd 'that Evans made a material and coercive misrepresentation concerning the purpose of the card, Therefore, Livramento's card cannot be considered as evidence of the ' Union's status. Joseph Smith testified that make-ready employee James Marshall sought him out and asked for a card. Marshall, told Smith - that he had been out, sick, but wanted to join the Union. Marshall took his card to the washroom where he filled out and signed the card, and then returned it to Smith. Marshall was called as a com- pany witness, but he did not testify concerning his card. The card, dated December 1, is valid . As of that date there were 64 employees in the unit . However, by ob- taining Marshall's card the Union was able to retain its majority status. Porter Roy Epling's card is dated December 3. Epling and Smith testified in sum that Pat Evans introduced Epling to Evans in the shop . Smith asked Epling if he wanted to join the Union, and Epling answered that he did. Smith told Epling that the card gave him the right to bargain with the Company through the Union, that he should read the card, and that if he agreed to join the Union and accept union representation he should sign the card. Epling read, dated, signed, and completed the card (except for the Company's name and ' address and Epling's date of employment "12-3-82," which was en- tered by Smith). Smith and Epling initially testified that Epling signed the card on his first day at work, although both subse- quently backed away from this assertion. In fact, as stip- ulated by the parties at the outset of this hearing, and as confirmed by the Company's records and Epling's own paystubs, Epling began working for the Company on Tuesday, December 7. Ned Tomarchio testified that he interviewed Epling (who had been recommended by Evans) on December 3, ,that Epling filled out a Job appli- cation on that date (which was introduced in evidence), and that he told Epling that he would let him know. To- marchio further testified that he called Epling on De- cember 6 and told him to report to work the next day. I credit Tomarchio, but I find that the card is valid be- cause Epling signed the card "in anticipation of employ- ment with" the Company. Riviera Manor Nursing Home, 200, NLRB 333 (1972), enfd. 487 F.2d 1405 (7th Cir. 1973). Epling knew that there was a job opening and that he had a good chance of being hired , and he was sufficiently familiar with his prospective job as to be able to enter his department, job, hours,, and rate of pay on the authorization card. The Company argues that the card was not valid be- cause Epling had not made "definite arrangements" for his employment as of December 3, and points out that in Riviera Manor, the Board found that the signer in ques- tion had made such arrangements. However, neither the Board nor the court of appeals indicated that this was the minimal standard. Rather both the Board and the court held that the card in question would be valid if signed "in anticipation of employment." Thus the court initially remanded the case to the Board because the Board failed to make a determination as to whether the individuals in question had been accepted for employ- ment or were employees when. they signed their authori- zation cards, "or at least had signed their cards after ar- ranging their employment or in anticipation of employ- ment by respondent," 80 LRRM 3221, 3222 (7th. Cir. 1972) (emphasis added.) Therefore, Epling's card is valid evidence of the Union's status as of December 7, when 518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Epling commenced working for the Company . At this point, following the departure of Peter Maloney, the Union had 33 valid cards in a unit of 67 employees, i.e., one short of majority status. Kevin Hall and Scott Owens began working for the Company as porters on December 2. Joseph Smith testi- fied that he asked them at work if they wanted to join the Union. Smith explained that "we were thinking of getting the United Autoworkers to represent us." They said they would like to join. Smith testified, that he gave them cards which they read, filled out, signed, and re- turned to Smith. There was no discussion of dues or ini- tiation fees. The cards dated December 8 were valid. Jack Winemiller began working for the Company on December 6 as a metal employee in the body shop. Ricky Kubert testified that they talked about the Union at work. Winemiller said that he wanted to join the Union. Kubert gave him a card. Winemiller said he was busy, but would take the card with him. The next day Winemiller returned the ' card, which was filled out, dated, and signed, to Kubert. Winemiller was called as a company witness, but=he did not testify concerning his card. The card, dated December 9, was valid. John Shobe began working as a metal employee in the body shop on November 29. Joseph Smith testified that he gave Shobe a card in the shop. They had previously discussed the Union. Shobe said that he wanted to join the Union. Smith told Shobe to read the card, and sign if he agreed with it. Shobe filled out and signed the card, and returned it to Smith. The card, dated December, 10, was valid. On December 14 there was a union meeting at Mike's Crab House. Joseph Smith testified that after the meeting, service writers David Kondracki and Norman Pennington each asked him for an authorization card. Smith told them that they would become union members by signing the card. Kondracki went to the washroom and returned his completed, dated, and signed card to Smith. Pennington similiarly returned his card to Smith the next day in the shop. As previously discussed, I find that organizer Steele did not make any misrepresenta- tions-at the December 14 meeting. The cards, both dated December 14, were valid. Smith further testified that he gave a card to service writer Charles Burry in the shop. Smith asked Burry if he was interested in joining the Union, and Burry said he was. Smith told him to read the card and sign it if he agreed. Burry took the card and shortly- thereafter filled it out, signed it, and returned it to Smith. The card, dated December 16, was valid. In sum, I find that by December 16 the Union had ob- tained 40 valid authorization cards in a unit of 66 em- ployees. Therefore the Union was and remained in pos- session of valid authorization cards from a majority of the unit employees. IV. THE ALLEGED UNFAIR LABOR PRACTICES AND THE OBJECTIONS TO THE ELECTION General Manager Hendrick testified that he learned about the Union's election petition on November 25, but that he heard about a week earlier that there was organi- zational activity in the shop. He further testified that he learned that Smith, Kubert, and Pierson were the princi- pal union activists, although other employees wore union insignia. On and after December 10 the Company sent letters and distributed literature to the unit employees in which it expressed its opposition to unionization. The General Counsel does not contend that the literature was unlawful. However, the General Counsel does contend that the Company responded to the Union's campaign by other, unlawful means. A. Alleged Unlawful Threat. Interrogation, and Solicitation 1. The Christmas party, and alleged threats and interrogation by John Koons in December On Saturday evening, December 18, the Company held its annual Christmas party at the Bay Ridge Restau- rant in Annapolis. By this time the election campaign was well underway. As will be discussed, the events of that evening marked a watershed in the Company's cam- paign against unionization, and also tend to shed light on the nature of that campaign both before and after as well as on December 18. Therefore, instead of proceeding in chronological order, I shall commence with the events of that evening. The party began about 8 p.m. Later that evening, President Koons' driver informed General Manager Hen- drick that he smelled gas in Koons' motor home, which was parked outside the restaurant. Hendrick determined that the gas was turned on. He returned to the restau- rant, but encountered Ricky Kubert and Sales Manager Debini in the hallway. Hendrick demanded to know who turned on the gas, and made statements that suggested to Kubert that Hendrick was accusing a union adherent or adherents." At this point Fred Pierson was summoned to the hallway. Hendrick's remarks led to a heated argu- ment between Hendrick and Pierson, and they nearly came to, blows. John Koons was summoned to the scene, and he attempted to calm them down . In the meantime other persons gathered in the hallway, including Service Department Manager Tomarchio and mechanic Donald West. At this point the conversation turned to the Union, and the testimony is in dispute about what Koons said on the subject. Kubert and Pierson testified in sum that Koons said that he did not need Annapolis, that he had a place in Florida and could close down and move there, and that life would go on without Koons Ford of Annapolis. They talked about health insurance coverage. West testi- fied that Hendrick said the Company did not have to agree to that. According to Kubert, Koons said that he ,did not have to "negotiate" to anything. However, Kubert subsequently testified that Koons said he did not have to "agree" to anything. Pierson said that if there was a strike, the Company could not get cars across a picket line. Koons restorted that the Company could get cars from other dealers. Kubert and Pierson testified in sum that Pierson said that he would not have put his job on the line if he did not feel so strongly about the Union, whereupon Koons replied, "You already have." Donald 11 The Union withdrew an allegation that the Company thereby acted unlawfully, and that issue is not present in this case. KOONS FORD OF ANNAPOLIS West corroborated their testimony in. this regard ; 10110,:of Koon's associates attempted to break up the conversa- tion. However, when Pierson saw Tomarchio, he pointed to him and said that he was responsible for the Union. Koons then called Kubert and Pierson aside and they talked further. The following Monday Tomarchio ten- dered his resignation. It, is undisputed that on Monday, Koons told Kubert and Pierson that he did not want any hard feelings, that what was said at the party was forgot- ten, and that no action would be taken against anyone. Koons, in his testimony, was evasive about the most crucial aspect of the employees' testimony and indeed was almost apologetic. According to Koons: I don't even remember discussing it about them put- ting their job on the line. I said , you know, I mean I never thought that I 'have-had no intention of that. In fact, you know, Fred, you know, even throughout this whole thing we considered possibly promoting him and still might. So, it was just the opposite. Koons further testified that he told the employees that the Company could not close the dealership because it was not allowed to do so, and that the Company planned to stay in business. General Manager Hendrick, who also testified ' concerning the Christmas party incident, gave confused and contradictory testimony , concerning Koons remarks, including versions different from that of Koons. At one point Hendrick testified that he was not sure whether Koons said that Pierson's job was never on the line, or could be on the line, or was already on the line. At another point Hendrick testified that Koons told the employees that their jobs were probably on the line if the Company didn't have any business, and that the Company would close if it went bankrupt . Ned Tomar- chio, the Company's other witness concerning the hall- way incident, testified only concerning the incident in- volving himself. Pierson also testified concerning the conversation with Koons on the shop floor about, a week before the Christ- mas party. Pierson testified that Koons asked 'him why they needed a union. Pierson answered that they needed someone to represent the employees in negotiations. Koons then asked why the employees didn't come to him to negotiate any problem. Pierson answered that they did not think they would be treated fairly. Pierson testified that Koons said he did not need the dealership, and could turn it into an apartment building or an office building. Pierson answered that he was sorry that Koons felt that way, and that the employees were not out to rape him. Pierson testified that he did not know whether anyone overheard this conversation, but that he talked to four other employees about it. Koons in his testimony was also somewhat evasive and defensive about this conversation. He testified that he did not recall this particular conversation, although he prob- ably spoke to Pierson. With regard to closing the dealer- ship, Koons tended 'to testify concerning his intentions rather than what he actually said . Koons further testified that he did not ask the employees about why they needed a union, but did "apologize for lack of communi- 519 w in .atiat;seems to- have developed down there." In fact, Koons did not display any interest in lack of com- munication until the Christmas party, when he learned that the employees regarded Tomarchio as responsible for such failure of communication. With regard to the conversation at the Christmas party, I credit the testimony of the , employees to the effect that Koons said he could close the dealership, and told Pierson that he had put his job on the line by his union activity. As discussed, the testimony of Koons and Hendrick was contradictory and' evasive concerning these matters, and Koons came close to admitting that he told Pierson that he put his job on the line. In the con- text in which these statements occurred , namely, the ar- guments about the Union, Koons' statements plainly con- stituted a threat to close the dealership if a union came in, and an implied threat that the Company would or could discharge employees because of their union activi- ty. Koons did not make a prediction that was carefully phrased on the basis of economic or other objective con- siderations. Indeed Koons admitted that if he were in- clined to close the dealership for economic reasons he would have done so in January 1982 . The employees were aware that Koons has other dealerships , including one in Florida. In the circumstances, including Koons' outspoken hostility to unionization, the employees could reasonably infer that Koons would close the Annapolis dealership rather than accept a union. Therefore, the Company, by Koons, violated Section 8(axl) of the Act. However, in light of Kubert's conflicting and uncorro- borated testimony, I find that Koons did not say that he would not negotiate with the Union. I further credit the testimony of Pierson concerning his earlier conversation with Koons. I ford in the context of the conversation that Koons similarly threatened to close the dealership rather than accept unionization. I further fmd that Koons unlawfully interrogated Pierson concerning' his attitude and that of other employees toward the Union. Koons had no legitimate reason to question ' Pierson. Rather in light of subsequent developments, which will be dis- cussed, it is evident that Koons , was seeking information for the purpose of learning which benefits he could promise or grant to the employees in order to ' discourage support for the Union. Koons, did not give Pierson any concurrent assurance against reprisal. Rather Koons ac- companied his interrogation with a threat to close the dealership. Therefore the Company, by Koons, violated Section 8(a)(1) by unlawfully interrogating Pierson and by threatening to close the dealership if the employees voted in the Union. The Company contends in its brief that no fording of unlawful conduct is warranted because of (1) Koons' apology to I(ubert and Pierson on the Monday following the Christmas party, and (2) a speech by Koons on Janu- ary 10, in which he denounced alleged rumors that the dealership would close, asserted that he had no intention of closing the dealership, and would bargain in good faith if the employees selected the Union as their repre- sentative. However, such statements would not preclude a finding that Koons previously threatened to close the dealership or threatened other reprisal . Rather these sub- 520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sequent statements are relevant to the question of (1) whether a conventional cease-and-desist order is war- ranted, and (2) whether the subsequent statements miti- gate against the propriety of a remedial bargaining order. As these questions necessitate consideration of the Com- pany's overall course of conduct, I shall defer further discusson of these questions to a later point in this Deci- sion. 2. Alleged unlawful threats, interrogation, and solicitation by Make-Ready Manager Irv Sherbert Irv Sherbert was a relatively low-level supervisor. However, he was looked on as something of a father figure by the young, unskilled employees including not only the make-ready employees under his direct supervi- sion, but also the porters and helpers who performed comparable, beginning level work. Therefore, he was in a position to exert strong influence on these employees who trusted him. The General Counsel presented seven present or former employees who testified concerning alleged un- lawful statements by Sherbert. Karl Jones testified that in late November or early December he was present in the make-ready office with Sherbert and four make-ready employees (Bennett, McMullen, Sanford, and Vester). Sherbert said that he heard they were trying to get in a union, and asked why. Jones explained the advantages of unionization. Jones testified that Sherbert responded that if the Union got in it would not stand behind the em- ployees, and that the employees would not be able to get discounts on parts, leave work early, or work on their own cars in the shop. Pat Evans testified concerning three conversations in the make-ready office after work, when pursuant to their usual custom, Sherbert and, the employees were drinking beer and talking. These conver- sations took place in late November and December. Evans testified that in the first conversation, at which make-ready employees Bennett and Tom Lewis ' were present, Sherbert said that if the Union came in, the em- ployees would not be able to wash their own cars be- cause he was the manager. Evans testified that in the second conversation, at which ' employees Bennett and Epling were present,' Sherbert said that if the Union came in, "the last two hired would be the first two fired because it would go by seniority and they probably wouldn't need all that help." At the time Epling, who was a porter, was the most recently hired employee in the service department. Bennett, who began working for the Company in August 1982, was the least senior em- ployee in make-ready after the termination of Walter Livramento on December 9. Epling testified concerning such a conversation, but his version differed from that of Evans and was internal- ly inconsistent. Epling initially testified that he, Evans, Bennett, and two other employees (apparently McMullen and Vester) were present when Sherbert said that he was the last hired, and that he and Bennett would' probably be the first to go if the Union came in. However, Epling subsequently testified, and so indicated in his affidavit, that Sherbert did not mention I any names, but that he (Epling) suggested that Sherbert was referring to himself and Bennett. Evans testified that at the third conversa- tion, at which employees Sanford, Bennett, and Lewis were present, Sherert said that if the Union came in they would not be allowed to drink beer as they were doing then. Epling also testified that on occasion in the shop, Sherbert asked him what he thought of the Union. When Epling indicated that he would wait to decide, Sherbert told him that the Union was a bunch of bull and that he should talk to the boys his age and tell them that the Union was no good. Epling did not testify that Sherbert ever followed up on this request. Epling further testified that on this occasion Sherbert told him that he was the "first [sic]" hired and could be the first to go if the Union came in. Mechanic James Felesky testified that on one occasion in the make-ready office, Sherbert told him that if the Union was voted in, Koons would force a strike by "not agreeing to anything that the Union demanded," and then hire permanent replacements for the employees, who would lose their jobs.12 Used-car mechanic Robert Russell testified that on one occasion when he stopped at the make-ready office, Sherbert told him that if the Union got in the employees would not be able to work on their own cars, but he (Sherbert) could do so any time, and would do so for spite.' s Mechanic's helper Ed Buckalew testifed concerning two conversations with Sherbert in the make-ready de- partment. Buckalew testified that in the first conversa- tion, Sherbert said that if the Union came in the employ- ees would lose privileges, and would "probably" lose the privilege of working on their own cars, also known as "hobby night" (i.e., on the first and third Wednesday evenings of each month, employees were permitted to bring in their own cars and make repairs , clean, or other- wise service them free of charge). However, on cross-ex- amination, Buckalew testified that Sherbert said there was a "possibility" that hobby night would be discontin- ued. Buckalew testified that in the second conversation, at which helper John Howes was present, Sherbert again said that the employees would probably lose privileges, including hobby night, if the Union came in, and that any employee who did anything wrong would be fired. Howes partially corroborated the testimony of Bucka- lew. Howes testified that in one conversation Sherbert asked their opinion of the Union. When they said they were undecided, Sherbert told them they did not need the Union, and that if the union came in they would probably lose hobby night. Howes testified that in the second conversation, Sherbert said that he had experi- ence with unions, and that unions caused employees to lose their jobs if they "goofed" or were "late even once." In response to requests by company counsel prior to this hearing, Howes and Buckalew each signed writ- 12 In his affidavit to the Board, Felesky stated that he was never "per- sonally" threatened or harrassed by anyone - in the Company. However, in the same affidavit Felesky described the above conversation. Felesky's conclusory statement does not impeach his testimony concerning the con- versation. Is In his investigatory affidavit, Russell stated that Sherbert said this to himself and several other employees. However, Russell's information concerning other employees may have been based on hearsay Therefore his affidavit is not necessarily inconsistent with his testimony that he did not know whether 'anyone overheard his conversation with Sherbert. KOONS FORD OF ANNAPOLIS 521 ten statements in which they stated that Sherbert did not threaten them. However, as the statements failed to indi- cate just what Sherbert did tell them about the Union, the conclusory statement that Sherbert did not "threat- en" them has no evidentiary value, and does not impeach the testimony of the employees. Sherbert, in his testimony, came close to admitting the allegations of the complaint. Indeed, he corroborated much of the testimony of the General Counsel's wit- nesses, and even when his version differed from those of the employees, Sherbert's version would , in some cases, also constitute an unlawful threat. Sherbert testified that he told Felesky that if negotiations did not go the way "the people" wanted, the Company might force a strike by refusing "to give anybody anything" and then hiring permanent replacements and putting everyone out of a job. Sherbert initially testified that he said the employees would "have to" go on strike, but he subsequently at- tempted to water down this admission by asserting that he said this "might" happen. In light of these admissions, Sherbert's followup asser- tion that he did not say that Koons would force a strike or refuse to negotiate, plainly was not credible. Sherbert admitted that he told Jones "what might become of leav- ing early," if the Union came in, and "what might happen" if the negotiations went the way the Company thought, and that the employees might lose the privilege of working on their cars. Sherbert went on to testify that he told the employees that they would not be able to bring in their cars unless it was agreed to "in the con- tract." However, hobby night was an existing privilege that would not depend on a contractual provision, and that could not be taken away unless the Union specifical- ly bargained it away, i.e., contractually or otherwise agreed that employees could not work on their own cars. See Yellow Cab Co., 229 NLRB 1329, 1353-1355 (1977), enfd. in pertinent part 603 F.2d 862, 889-890 (D.C. Cir. 1978). Therefore Sherbert's testimony , even if credited, was tantamount to an admission that he threatened the em- ployees with loss of hobby night if the Union came in. 14 Sherbert also admitted that he told the employees that they would "probably" lose the privilege of drinking beer after work on the premises, although he said noth- ing about negotiations concerning the subject. Again, Sherbert's testimony was tantamount to an admission of an unlawful threat. Sherbert testified that he did not recall saying that there would be no parts discount, or that employees would be discharged if they slipped up or were late once. However Sherbert admitted that he "fig- ured" that the attendance rules would be strict if the Union got in, and that he told the employees that he would not be as close with them as he had been. Sher- bert initially testified that he did not threaten any em- ployee with layoff. However, Sherbert eventually admit- ted after considerble evasion that he told the employees 14 At one point Sherbert testified that he permitted Buckalew to bring in his car during working hours, but told him that if the Union came in he would "have to wait to the regular time," i e., hobby night If so, then Sherbert's statement constituted a threat that the Company would restrict the privilege if the Union came in. "the last man hired, you know . . . gets replaced," and that he specifically referred to layoff. The Company also presented the testimony of four present or former make-ready employees (Robert San- ford, Bruce Bennett, Donald McMullen, and Charles Vester), concerning the statements allegedly made by Sherbert. Bennett testified that he did not remember Sherbert discussing what would happen if the Union came in, or specifically making any reference to hobby night or following seniority in layoffs. Vester flatly testi- fied that Sherbert did not say how he felt about the Union, and in sum, that he never indicated what if any- thing the employees might lose, other than to say that specific matters would have to be negotiated. Sanford testified that Sherbert said that everything was negotia- ble, but did not say that the employees would lose any- thing if the Union came in. Sanford further testified that he did not recall Sherbert saying anything about no drinking, or about last hired, first to go. Sanford further testified that he knew that Sherbert was against the Union, based on what he said, but he failed to indicate what Sherbert said that led him to that conclusion. In light of Sherbert's own admissions, their testimony is plainly incredible and worthless. Bennett did testify that Sherbert asked his opinion on the "union issue." Bennett thereby contradicted Sherbert's testimony that he never asked the employees whether they were for or against the Union. I credit the testimony of the General Counsel's wit- ness. I specifically find that Sherbert threatened that Koons would force a strike by not agreeing to any union demand, i.e., by unlawfully entering negotiations with a closed mind, which would cause the employees to lose their jobs. I further find that Sherbert expressly threat- ened Epling, and subsequently impliedly threatened Epling and Bennett with layoff if the Union came in. As of November and December the Company was in the process of hiring additional employees, and anticipated that business would improve. Nevertheless, without giving any objective basis, Sherbert equated unionization with a need for fewer employees, and indicated to the employees that they would probably be laid off (and not simply that seniority would be followed in the unlikely event of an ecomonic layoff). I further find that Sherbert, without any objective basis and without any reference to the give-and-take of good-faith contract negotiations, threatened the employ- ees with loss of discount on parts and the priviledge of working on their own cars, leaving work early, and drinking beer after work on company premises, and fur- ther threatened them with severe discipline in the form of discharge for making one mistake or for being late once. At no time did Sherbert suggest that the employ- ees might gain anything, or even that the Union would seek anything to compensate for those losses. A union does not enter contract negotiations for the purpose of persuading the employer to take away benefits from its employees. It is evident that Sherbert was sending a clear signal to the employees that in reprisal for union- ization, the Company would deprive or seek to deprive the employees of their benefits and privileges, and would 522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD impose or seek to impose severe discipline on them. Moreover, an employer violates Section 8(aXl) by telling its employees without any objective basis in fact, that a union would seek more onerous working conditions if se- lected as the employees', representative. M. O'Neil Co., 211 NLRB 150, 151 (1974), enfd. 514 F.2d 894 (D.C. Cir. 1975); H. A. Kuhle Co., 205 NLRB 88, 104-105 (1973). Therefore, Sherbert's threats were unlawful even to the extent that he suggested that the Union would be respon- sible for these horrible consequences. I further find, on the basis of Sherbert's own admis- sion, that Sherbert violated Section 8(a)(1) by threaten- ing the employees that if the Union came in he would not be as close with them as he had been . Wilker Bros. CO., 236 NLRB 1371, 1372 (1978), enfd. in pertinent part 652 F.2d 660 (6th Cir. 1981). The Company's argument that Sherbert was simply a garrulous, friendly fellow who expressed his own opinions as one worker to his fel- lows, is not persuasive. As General ' Manager Hendrick admitted, the Company's managerial and supervisory personnel were kept well informed as to what they could and could not tell the employees. There is no suggestion that the Company ever censured Sherbert or disavowed his remarks. Rather, as has been and will be discussed, Sherbert's statements were consistent with the statements of other supervisors in the chain-of-command, up to and including John Koons. Therefore, I find that the Compa- ny, by Sherbert, violated Section 8(a)(1) of the Act by the foregoing threats. However, I shall defer my con- cluding findings with regard to the alleged unlawful in- terrogation and solicitation until the next section of this decision. 3. Alleged unlawful threats, interrogation, and solicitation by Service Manager Ned Tomarchio The General Counsel presented testimony by five present or former employees concerning alleged unlaw- ful statements by former Service Manager Tomarchio. Mechanic Karl Jones testified that on one occasion in late November, he went to Tomarchio's office to discuss a work problem. Tomarchio raised the subject of the Union, asserting that Jones did not have to discuss it. Jones answered that he had nothing to hide. Tomarchio asked if they were trying to get in a union. Jones said they were. Jones testified that Tomarchio said, in a sar- castic tone, that it was a "good idea," and went on to assert that if the Union came in "you won't be able to recognize that many faces in the back of the shop be- cause if they can't stand my rules, they'll never be able to stand up to the union rules." Jones testified that To- marchio also told him that if the Union came in the em- ployees would not be able to work on their own cars, or leave work early (even with permission), and the parts department would not be able to give them discounts on parts. Jones testified that on a later occasion, when they were returning together from Jessup, Maryland, after de- livering cars to the State of Maryland, Jones referred to the fact that he was working on a friend's car (outside the dealership and on his own time). The Company per- mitted this practice if it did not conflict with shop work or deprive the Company of income. Jones testified that Tomarchio said that the Union would not allow the em- ployees to do this, and that they could be fined or fired for working on can outside of the dealership . Jones fur- ther testified that in this conversation Tomarchio also said that John Koons did not need the Anapolis dealer- ship, had other businesses, and could "close the doors" and "just lock us out." Mechanic Ricky Kubert testified that on one occasion in mid-December, he also went to Tomarchio's office to discuss a work problem. Tomarchio asked if there was any way he could talk Kubert out of the Union. Kubert told Tomarchio that he could "give it your best shot." Kubert testified that Tomarchio told him that if the Union came in, the rules and regulations would be much stricter, that it would be difficult, for the employees to adhere to union "rules and regulations," that employees could be fired for being late or for a "comeback ," i.e., returns by customers for unsatisfactory or incomplete work, and that if Kubert fell down and injured himself, Tomarchio would not be able to pick him up "because of the Union regulations." When Kubert replied that the employees would be the Union, Tomarchio insisted that the Union would bring its own rules and regulations, and that Kubert would have no say at all. Kubert testified that on another occasion Tomarchio told him that he would be glad to have a union, beause the Union would help him make the rules harder, and he could impose more rules and regulations. Mechanic Donald West testified that on one occasion in early December he went to Tomarchio's office to ask for more paid time on warranty job. Tomarchio told West that if the Union came in, he would not be able to help West. Tomarchio then sternly asserted that if West could not do the job in the allowed time he would get someone else to do it. Having made his point, Tomarchio then put his arm around West, told him that since there was no union he could help him, and gave West the extra time. Pat Evans testified that before he signed a union card, Tomarchio promised to send him to front-end school while remaining on the payroll. Evans further testified that on three occasions in late November and early De- cember he was summoned to Tomarchio's office to dis- cuss the Union, and that Roy Epling was also'summoned to the first interview. Evans testified that at the first interview Tomarchio asked if he knew about the Union and who signed cards, and Evans answered that all the mechanics did. Tomarchio then asked Evans to get the porters and helpers to vote no, because he needed all the help he could get. As Evans left the office he vocally cursed the Union. At the second interview Tomarchio asked if he had gotten anyone to vote no. Evans an- swered that he did. Tomarchio told him that if the Union came in he could not go to front-end school, because se- niority came first and he (Tomarchio) would have no control. Evans testified that' in the third interview, To- marchio asked him what the Union wanted, and he told him. Evans added that he had some porte;s and helpers who were going to vote no, whereupon Tomarchio ex- pressed his approval. Epling testified concerning an interview with Tomar- chio at which Evans was present. However, Epling's tes- KOONS FORD OF ANNAPOLIS 523 timony was both internally inconsistent and partiallq'in- consistent with that of Evans. Epling testified that To- marchio told them that only seniority counted, and that if the Union came in they did not have a good chance of moving up. He told them to talk to the other young em- ployees and tell them not to vote for the Union. Epling testified that they agreed, but did not say they were against the Union. Epling initially testified that they did not talk to the employees, but he subsequently testified that he did not know what Evans did. Tomarchio testified that in a conversation with em- ployees Jones, Buckalew, Howes, and Evans, at which Evans spoke against the Union, he told the employees that in a union situation, seniority counts for more than ability. Tomarchio testified that, he was referring to op- portunity for advancement, and did not mention dis- charge or layoff. Tomarchio further testified that on their trip back from Jessup, Jones asked whether Koons would close the dealership if the Union came in, where- upon Tomarchio answered with a profane expression to the effect that Koons lacked the courage. Tomarchio also testified that on another occasion Jones told him that he was against the Union, whereupon Tomarchio in- sisted that he did not care. According to Tomarchio, Jones asked whether they would lose privileges, such as the parts discount and hobby night, whereupon Tomar- chio answered that it depended on whatever was negoti- ated. Tomarchio further testified that with regard to leaving work early, he told Jones that the employees would have to be at the dealership during the hours spelled out in a contract. Tomarchio testified that Kubert repeatedly sought to question him about his opinion of the Union, and he tried to avoid such discussions. According to Tomarchio, he told Kubert and other employees that he didn't care whether the Union came in, and that he could manage in either a union or nonunion situation. Tomarchio testified that Kubert told him that the employees would not have to punch a timeclock when the Union came in, and that he disagreed, asserting that a contract would contain business principles that would be negotiated by Koons. Tomarchio testified that he told West that in a union sit- uation, the contract would provide for skill levels, and that each employee would be expected to perform by himself at his skill level. According to Tomarchio, he told West that he could help, but that if the Union came in he would be administratively tied up, his time would be restricted, and he would not always be availale. To- marchio further testified that Evans voluntarily told him that he would not let him down, and would vote against the Union, whereupon Tomarchio replied that he did not care, that it was up to Evans, and that if he felt so strongly he should go out and spread the word. Accord- ing to Tomarchio, Evans voluntarily reported back that others Would vote against the Union, whereupon Tomar- chio replied that he did not care. Tomarchio further tes- tified that he did not question employees about their union activity or sympathies, or solicit employees to oppose the Union, ' or threaten employees with reprisals as alleged in the complaint. I credit the testimony of Jones, Kubert, West, and Evans, and L credit the testimony of Epling to the extent that it is consistent with that of Evans. The statements attributed to Tomarchio are consistent with the contem- poraneous statements and conduct of Make-Ready Man- ager Sherbert and with Koons' statement at the Christ- mas party, and together indicate a company policy with regard to its opposition to unionization. Moreover To- marchio repeatedly demonstrated a personal vindictive- ness toward the employees in general and the leading union adherents in particular, which tended to color both his version of the conversations in question and the actual situation in the workplace. Thus, Tomarchio testified that Ricky Kubert was "very opinionated" and "looking for me to be the scape- goat," that Jones "was always buttering up to me," and that the service department employees were "undisci- plined." In fact, the Company had high regard for its line mechanics, and Jones, who was assigned two helpers by Tomarchio, was regarded as one of the best mechan- ics. This is not to say that I have no credibility problems with any of the General Counsel's witnesses. As indicat- ed, I have substantial reservations with respect to the tes- timony of Epling. However, I fmd it unlikely that all five witnesses would knowingly testify falsely against the Company, particularly Kubert, Jones, and West, all of whom were employed by the Company at the time of their testimony. Kubert in particular generally impressed me as a candid witness who did not hesitate to admit facts that were favorable to the Company, and who held up under cross-examination despite repeated attempts by company counsel 'to paraphrase or misconstrue his testi- mony. 1s I fmd that the Company, by Tomarchio, violated Sec- tion 8(a)(1) by threatenng its employees with plant clo- sure and loss of jobs, more severe discipline including fines and discharges and onerous "rules and regulations," refusal to help employees in their work, loss of schooling or other opportunity for advancement, and loss of the benefits and privileges of discounts on parts, leaving work early, working on their own cars or on other cars outside the dealership, all if the employees selected the Union as their bargaining representative. Tomarchio made no reference to the collective-bargaining process, and did not suggest that the employees might gain any- thing from this process. Rather Tomarchio simply equat- ed union representation with all of these dire conse- quences, either as a result of company action or through the thinly disguished pretext of fictitious "union rules and regulations." Therefore the threats were unlawful. M. O'Neill Co., supra; H. A. Kuhie Co., supra. I further find that the Company, by Tomarchio and Sherbert, violated Section 8(a)(1) by soliciting Evans and Epling to persuade other employees to oppose the union and to report on the results of such activity, i.e., the atti- tude of other employees. The Company was particularly determined to ' use Evans, a self-reliant, intelligent, and ambitious individual who might be in a position to influ- is In his affidavit, Kubert stated that no one from the Company har- assed or threatened or promised him anything personally. However, in the same affidavit Kubert described his conversations with Tomarchio. Therefore, Kubert's conclusory statement in his affidavit does not tend to impeach his testimony in this proceeding. 524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ence other young employees. The Company thereby vio- lated Section 8(a)(1) of the Act. Vincent et Vincent of Al- lentown Mall, 259 NLRB 1025 (1982). I further find that the Company, by Tomarchio and Sherbert, violated Sec- tion 8(aXl) by interrogating employees concerning their union attitude and activities and those of their fellow em- ployees. The supervisors had no legitimate reason to question the employees, and in only one instance did the supervisor inform the employees that he did not have to answer. In,some instances, involving Evans and Epling, the employees were summoned to Tomarchio 's office in an atmosphere of unnatural formality. In the circum- stances, the interrogation was demonstrably preliminary to an unlawful purpose, namely to determine the strengths and weaknesses of union support in order to counter the union campaign by company-sponsored em- ployee solicitation, threats of reprisal, and (as will be dis- cussed) redress of grievances and grants of benefit. Therefore, the interrogation was unlawful. Vincent et Vincent, supra, 259 NLRB at 1025-1026; Sparton Plastics, 269,NLRB 546, 552 (1984).16 On Wednesday, January 5, at 4:30 p.m. General Man- ager Hendrick conducted a meeting of the service de- partment personnel in the upstairs conference room. Hendrick also spoke separately to the body shop employ- ees. Mechanics Smith, Kubert, Jones, Felesky, and Pier- son testified for the General Counsel concerning the service department meeting. Acting Service Manager Collins began the meeting by discussing shop matters and announcing certain awards to the mechanics (the awards will be discussed at a later point in this decision). Hen- drick then spoke concerning the Company's policy with regard to unionization and the election campaign. Smith, Kubert, and Jones testified in sum that Hendrick said if the Union got in he would not be able to talk directly to the employees as he had been doing, but would have to go to the Union. 117 Smith, Kubert, and Felesky all testified that Hendrick said there would be no discounts on parts if the Union got in. Felesky further testified that Hendrick said the employees would, not be able to charge parts, and Smith testified that he said the Company would no longer make personal loans, as it had done for some employees. Fe- lesky and Kubert, testified that Hendrick said the employ- ees would lose the privilege of working on their own cars. However, Smith testified that he said the employees would probably lose , hobby night, and that this was the only time that Hendrick used the word "probably." The employees testified in sum that Hendrick did not say that these matters would depend on the outcome of contract 16 In his brief (fn. 49) the General Counsel withdrew the, allegation of par. 10(b) of the complaint that Tomarchio unlawfully created the 'im- pression of surveillance by informing the employees he knew the 'me- chanics had signed cards . Par. 10(a) of the complaint' alleges that Tomar- chio solicited employees to inform management about who signed union cards. I rind that the statement in question (to Evans) was interrogation rather than solicitation. However, as discussed, I find that Tomarchio un- lawfully solicited Evans to report on the results of his antiumon talk among employees. 17 Par. 20 of the complaint alleges that on two occasions in early Janu- ary, Hendrick made statements to this effect in his office. No evidence was adduced concerning such conversations . I find that if such statements were made at all, they were made at the service department meeting negotiations. Smith, Kubert, and Felesky testified in sum that Hendrick said the Company was actively seeking to replace Jim Collins and Betty Dorr with people who were more qualified to deal with a union. However, Pierson, who questioned Hendrick about the matter, gave a more detailed version of Hendrick's remarks. Pierson testified that Hendrick said the Company was seeking a service manager and a body shop manager. Pierson then asked what was wrong with the present managers, whereupon Hendrick replied that if the Union got in the Company would need someone who was more familiar with the workings of a union and how to deal with the situation. Both Collins and Dorr were popular among the employees. It is undisputed that Hendrick told the employees that the rumors about closing were not true, and that the dealership would not close (in fact, as previously dis- cussed, the alleged "rumors" began with John Koons at the Christmas party). Hendricks testified that he did say the Company might not be able to keep open if it had, to pay out more in benefits than it could afford. I also credit the testimony of Hendricks that he said the Com- pany would bargain in good faith. Hendrick also apolo- gized for his, accusations at the Christmas party concern- ing Koons' mobile home. With regard to the allegations of the complaint, Hendrick testified that he told the em- ployees that they did not need a union, that the Compa- ny had an open door policy, and that with a "third party" the employees would not have much to say. Hen- drick testified that he did not say the employees would lose discounts or hobby night, but did say that he did not know what would be in a contract. Hendrick further tes- tified that he said he did not know if the Company would be able to continue making loans. Hendrick denied saying that the Company would terminate Collins and Don. According to Hendrick, he said that he was looking for a body shop foreman (not manager), and that he did not know if he could make Collins the permanent service manager, because he did not know the qualifications if the Company lost the election and had to work with a union. (As heretofore found, Crip Brown was promoted to body` shop foreman prior to this meeting.) Collins, who was present at the meeting , testified that Hendrick told Pierson that Collins would be considered for service manager, and that Hendrick also said he was looking for a body shop foreman. However, Collins did not corrobo- rate Hendrick's testimony with regard to other specific allegations of the complaint. Don was evidently not present at the meeting. The Company produced three present or former employee witnesses concerning the meeting (Robert Sanford, Bruce Bennett, and Donald McMullen). They testified in sum that Hendrick said the Company would not close but would bargain in good faith. However, they did not corroborate Hendrick's tes- timony with regard to the specific allegations of the complaint. The employees testified in sum that they could not remember what else was said.18 is In an unsworn statement that he gave to the Company's attorneys, Edward Buckalew said that there were no threats at the meeting. As pre- Continued KOONS FORD OF ANNAPOLIS 525 I credit the testimony of the General Counsel's 'wit- nesses and I do not, unless otherwise indicated, credit Hendrick's testimony to the extent that it conflicts with their testimony. In light of Smith's testimony, I fmd that Hendrick spoke in absolute terms about what would happen if the Union came in, except that he said that the employees would ' probably lose hobby night . Hendrick's statements were consistent with those made by Tomar- chio and Sherbert, except that after the confrontation at the Christmas party, the Company tended to take a softer line; by backing away from its more extreme threats to close the dealership or force a strike by not agreeing to any union demands . As discussed, I find it unlikely that the line mechanics would knowingly testify falsely against the Company. Hendrick's testimony with regard to the allegations of the complaint ' was substan- tially uncorroborated except for the matter of Collins and Dorr, and his testimony with regard to Dorr was de- monstrably false, because the Company was not looking for a body shop foreman at that time. I find that the Company by Hendrick violated Section 8(a)(1) by threatening the employees with loss of access to management if they voted for the Union. Tipton ' Elec- tric Co., 242 NLRB 202, 205-206 (1979), enfd. 621 F.2d 890 (8th Cir. 1980); Community Cash Stores, 238 NLRB 265,,268 (1978). I further find that Hendrick violated Section 8(a)(1) by threatening the employees with loss of the benefits and privileges of discounts and charging parts, hobby night, and obtaining personal loans from the Company. Hendrick did not speak in terms of the give- and-take of collective bargaining. Rather, without giving any objective reasons, he told the employees that they would or probably would lose these benefits and privi- leges if the Union came in. By making these threats, Hendrick effectively nullified his assertion that the Com- pany would bargain in good faith. However, I find that Hendrick did not violate Section 8(a)(1) by telling the employees that the Company was actively seeking to re- place Collins and Dorr. As these managers were supervi- sors under the Act, the Company could lawfully'termi- nate them for union-related reasons, and the Company did not act unlawfully by informing the employees of its intentions in this regard. See Algonquin Bowling Center, 170 NLRB 1768, 1770 (1968). Patrick Evans testified that he made an appointment to meet with Hendrick on January , 10, in order to hear his side before the election. Evans testified that Hendrick said he could not say much, but that all he could guaran- tee from the Union was dues, and that if the Union came in there probably would never be another Christmas party unless the Union paid for it. Evans testified that he told other employees about this conversation . Hendrick testified that Evans questioned him about the Union, asked what changes would take place if the Union came in, and specifically, whether there would still be a Christmas party. Hendrick testified he answered that whether the employees gained or lost depended on the outcome of negotiations, and with regard to the Christ- mas party, that "economically, things can change" with viously discussed, I fmd that such conclusory statements have little pro- bative value. or without the Union, and that he didn't know the answer. I credit Evans. If Evans wished to question Hendrick about specific matters, then it is unlikely that he would have -chosen the annual Christmas party as a subject for discussion. Rather it is more likely, as testified by Evans, that Hen- drick injected the matter into their conversation. More- over, the Company continued to have a Christmas party even in 1980 and 1981 , when it was ostensibly operating at a substantial loss. Therefore, Hendrick's alleged expla- nation to Evans does not ring true, because it is evident that absent a discriminatory motive, the Company had no intention of discounting the annual Christmas party even under the worst .of circumstances. I find that the Company, by Hendrick, violated Section 8(a)(1) by threatening its employees with loss of 'the annual Christ- mas party if the employees selected the Union as their representative. 5. Alleged threats by John Koons on January 10 On Monday, January 10 John Koons addressed a meeting of the service and parts department employees. Koons testified in sum that he made clear his opposition to unionization, but apologized for the lack of communi- cation under Tomarchio, asserted that he would not close the dealership, and further asserted that he would bargain in good faith if the Union came in . Koons' testi- mony was corroborated by present and former employee witnesses for both sides, including Karl Jones and Ricky Kubert. However, former line mechanic Thomas Dixon testified that Koons said there had been "a lot of fun in the shop prior to the union activities," but that if the Union came in he would not be able to lend money or let anyone charge parts, and would not help the employ- ees. Dixon further testified that Koons said he would not close the dealership unless the Union forced him to do so by asking too much. Koons, in his testimony, denied making the alleged threats, or even discussing the matter of credit and loans. Koons testified that Hendrick formu- lated company policy with regard to these matters, and that he was not fully familiar with that policy. Dixon's version of Koons' speech was uncorroborated by any other witness. He tended to be hesitant and uncertain about just what Koons said. It is quite possible that Dixon was confused between Hendrick's speech and Koons' speech. I credit Koons, and I find that Koons did not make any unlawful threats in his January 10 speech. B. Alleged Unlawful Pay Increases, Bonuses and Other Changes in Employee Compensation The complaint alleges that the Company violated Sec- tion 8(a)(1) and (3) of the Act by granting certain pay increases, bonuses, and other changes in compensation to unit employees ' during the election campaign.19 All of 19 The complaint alleges that the Company made these changes be- cause the named employees "joined, supported or assisted the Union" and engaged in other protected concerted activities, "and in order to discour- age employees from engaging in such activities." However, in light of the specific alleged unlawful changes and the evidence presented in support of the complaint, I do not understand the thrust of the General Counsel's Continued 526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD these changes are alleged to have occurred about Janu- ary 6, i.e., within a week of the election, except for bo- nuses to make-ready employees that were announced at the Christmas party on December 18. I shall first discuss one of the changes that occurred in January, because, as will be discussed, the circumstances of that change are evidentiary with respect to the other allegations of the complaint and the Company's answer to those allega- tions. 1. Change in formula for computation of body shop employees' wages During the election campaign there were six metal em- ployees and three painters in the body shop. Prior to April 1982, they were paid weekly on the basis of 50- percent of the labor charge for the jobs on which they worked. (The labor cost is determined by the Crashbook Guide. For warranty work the employees were paid under the flat-hour system.) The metal employees, but not the painters, purchased their own materials, i .e., tape, putty, fiberglass, sandpaper, grinding discs, and similar items. In April 1982 the Company changed the compen- sation formula. Painters received 45 percent of labor charges up to $1200, and 50 percent above that amount. Metal employees were paid on a sliding scale of 40 per- cent of labor charges up to $800, 42.5 percent of the amount from $800 to $960, and 45 percent of the gross labor charges above $960. However, the Company, sup- plied all materials at no cost to the employees. There is no contention by the Company that this change took place as the result of any periodic evaluation. General Manager Hendrick specifically admitted that neither the April 1982 change nor the January 1983 change, which is the subject of the complaint, were made as the result of any semiannual evaluation. (Moreover, as will be dis- cussed, the Company contends that such reviews were made in June and December and implemented in July and January of each year. Therefore, the April 1982 change would not fit into this pattern.) It is evident, at least with respect to the painters, that the April 1982 change was a reduction in their rate of pay. The Company's witness gave conflicting reasons for this change. Hendrick testified that John Koons told him that most shops paid only 45 percent, and that the Com- pany was having problems that were caused by the use of inferior materials. However, Body Shop Manager Dorr testified that there were no such problems. Don testified that she was told that work was slow and the change was expected to make the employees more pro- ductive, but she professed to be unable to explain how the change would achieve this result. John Koons testi- fied that he reduced the rate of pay at JKJ Chevrolet, and instructed Hendrick to do the same at Annapolis, in order to produce more income for the Company through centralized purchasing of supplies. The explanation makes no sense because the metal employees had been case to be that the Company granted increases and benefits only to em- ployees who joined the Union. Rather the thrust of its case appears to be based on the second conclusory assertion, namely, that the Company made these changes in order to discourage employee support for the Union. purchasing supplies at no cost to the Company, and the Company had always furnished supplies for the painters. Koons was correct in part, namely that the change was intended "to make more profit for ourselves." In sum, the Company sought to make more profit by reducing the rate of pay of its body shop employees, and by plac- ing them in a position where they had to produce more in order to move into a higher income rate. The change was extremely unpopular with the em- ployees, who from the beginning constantly complained to Dorr; who in turn informed Hendrick of these com- plaints but to no avail. Dorr testified that the employees told her the change would cost them $2000-$3000 per year. In September Service Manager Tomarchio attempt- ed on his own to institute a different compensation system, but his action was promptly countermanded by Hendrick. About this time one of the body shop employ- ees quit his job because of dissatisfaction with the com- pensation system. According to Hendrick, Dorr asked him to permit Tomarchio to continue the revised system. However, Dorr testified that Tomarchio's system was "different and confusing" and that she repeatedly asked Hendrick to restore the former system. According to Hendrick and Dorr, Hendrick told her that he would re- evaluate the compensation system in January. In fact, Hendrick had no authority to make such a promise, be- cause the April 1982 change had been personally ordered by John Koons. In his testimony, Koons was vague and evasive about when he decided to restore the 50-percent compensation rate. According to Koons, the matter was under discus- sion since September, and he was "leaning that way" in November or December, but the actual decision was not made until December or January, and that he and Hen- drick agreed on the change in early January. The Com- pany presented several body shop employees who testi- fied concerning the compensation system. However, only one witness testified that there was any 'promise to review the system, and that witness ended up by cor- roborating the General Counsel's position. Metal employee Archie Brown testified that in Sep- tember or October, Betty Dorr told him that they would let the existing system remain in effect until January to see if it would work. However, Brown then testified that Dorr said they would "let it stand for a year to see if it worked." If Don meant one year from April 1982, then the existing system would remain in effect until April 1983. If Don meant one year from their conversation, then it is evident that the existing system would remain in effect until at least September 1983 . Either way, it is evident from Brown's testimony that as of September 1982 the Company had no intention of changing or even reconsidering the existing system in or about January. It is 'undisputed that effective as of January 6, the Company restored the former 50 percent compensation rate for the body shop employees. Hendrick and Dorr testified in sum that in early January, Dorr met with the body shop employees and offered them a choice of either continuing the existing compensation system or returning to the 50-percent compensation rate, provided that the metal employees purchased quality materials. The em- KOONS FORD OF ANNAPOLIS ployees voted unanimously to return to the former system. Dorr informed Hendrick of their choice. Hen- drick told her that the change would be implemented in the next pay period, and Dorr promptly informed the employees. No evidence was introduced that the Compa- ny ever evaluated the compensation system as, allegedly promised by Hendrick. As indicated, the Company let the employees make their choice. Indeed, the Company has virtually conceded in this proceeding that it restored the former system as a means of redressing its employees' grievances. In its answer, the Company conceded that it restored the former compensation rate as the result of .,an ongoing effort and dialogue between Respondent said its effected employees concerning the most desirable and effective system to be used in meeting the needs of both respondent and its employees." In fact, prior to De- cember 1982, the Company turned a deaf ear to its em- ployees' complaints. Betty Dorr admitted that she knew that the Union was using the compensation problem as an issue in the campaign, and that in December she told John Koons that the biggest problem in her shop was that the employees wanted the old compensation formu- la. It is also undisputed that after the Company restored the former formula, it made no effort to monitor the pur- chase of materials by the metal employees and never told them what materials they should use. Indeed , several company witnesses testified to that effect. I find that but for the Union's successful organizational campaign and its petition for a Board election, the Com- pany would not have restored the former compensation system. I further find that the Company restored the former system in order to discourage employee support for the Union in the pending election. Therefore, the Company violated Section 8(aXl) and (3) of the Act. See generally NLRB v. Exchange Parts Co., 375 U.S. 405, 409-410 (1964); NLRB v. Pandel-Bradford, Inc., 520 F,2d 275, 279-282 (1st Cir. 1975). Specifically, it is unlawful for an employer to grant redress of employee grievances during an election campaign in order to discourage sup- port for a union, regardless of whether the employer's action actually results in monetary benefit to the employ- ees. See Uarco, Inc., 216 NLRB 1 (1974). Therefore, in determining whether the Employer acted unlawfully, it is immaterial whether the change actually resulted in financial benefit to the employees. In fact, the change did result in a higher, rate of compensation. Indeed, the employees' own complaints speak for them- selves. It is unlikely that employees would persistently and urgently demand a return to a system that paid them less or, the same as they were currently earning. With re- spect to the painters, it is obvious that they received a higher rate of pay under the pre-April 1982 system be- cause they never paid for their own supplies. Fifty per- cent of $1200 is more than 45 percent of $1200 ($60 per week more, to be exact), In support of its contention that the employees did not make more income as a result of the January change, the Company presented a compari- son of the employees' gross wages under the formula in effect from April 1982 to January 1983, with that under the restored former formula since January 1983. The Company's argument begs the question. The em- ployees' gross income depends first and foremost on their 527 volume of work, i.e., gross sales, which in turn depends primarily on factors other than their rate of compensa- tion. A more accurate measure of the change may be made by comparing the employees' earnings under the April 1982 formula with that under the, formula restored in January, for weeks in which they had comparable gross labor sales figures on their respective jobs . For ex- ample, during the week ending December 1, 1982 , paint- er Jim Fenderson earned $301.14 on gross labor sales of $669.20. During the week ending April 6, 1983, under the restored 50-percent formula, Fenderson earned $331 on gross labor sales of $662 . During the week ending April 14, 1982, metal employee Kenneth Boston earned $271.44 on gross labor sales of $678.60, which is a low volume of business for metal employees. During another slow week in 1983 (week ending April 20, 1983) Boston earned $308.80 on gross labor sales of $617.60, i.e., a dif- ference in earnings of about $37. The difference in earn- ings was substantially greater during comparatively busy weeks., During the week ending June 30, 1982 , metal, em- ployee Sedgewick Cole earned $569.51 on gross labor sales of $1269.79. During the week ending January 12, 1983,' Cole earned $631.41 on ' gross labor sales of $1262.8 1, i.e., a difference of about $62. Under the last week of the sliding scale formula, metal employee Jack Winemiller earned $667.17 ' on gross labor sales of $1482.60. The next week, under the restored 50-percent formula, Winemiller earned $731.80 onn gross labor sales of $1463.60, i.e., a difference of over $64.' Nevertheless, the Company contends that the metal employees did not actually make any financial gain be- cause they now had to pay for their own supplies. In support of this contention, the Company presented wit- nesses who testified in sum that the metal employes spent from $30 to $40 per week on supplies. No records were presented in support of this contention. However, the comparative figures discussed above indicate that, even assuming these estimates to be correct , the metal employ- ees were nevertheless in a position to make more money under the 50-percent formula. Moreover, the 'employees could deduct such expenses on their Federal and State income tax returns. For this and other' reasons indicated by the evidence, I am inclined to view these estimates of expense figures with some skepticism. Thus Jack Wine- muller testified that he spent about $30 per week on sup- plies, depending on the work done. Sedgewick Cole tes- tified that he spent $30 to $40 per week on supplies de- pending on the work done. However, 'the Company's labor sales figures indicate that Winemiller was the body shop's biggest producer during the first 7 months of 1983. Winemiller worked on jobs with gross labor sales totaling $31,382.65, compared with $19,779.11 for Cole during the same period. These figures, coupled with the employees' obvious self-interest and their own strong preference for a system under which they purchased their own supplies, tends to indicate that Cole, at , least, was exaggerating. , In sum, I find that the Company violated Section 8(a)(1) and (3) of the Act by redressing employee griev- ances and by granting a higher rate of pay to the body shop employees in order to discourage employee support 528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for the Union. The Company waited until shortly before the election in order to maximize the impact of its action. It is unlikely that the Company would have embarked on such a course of action without also attempting to simi- larly appease other important segments of the election unit. Therefore, I find that the evidence with respect to the wage formula change, including the Company's ad- missions with respect to the reasons for that change, is also evidential with respect to other increases and bo- nuses granted during the election campaign, and tends to impeach the Company's asserted reasons for such in- creases. 2. Bonuses to make-ready workers, and the technician of the year and technician of the month awards At the December 18 Christmas party, General Manag- er Hendrick announced that the Company was awarding $50 bonuses to eight named employees for their "fine work" in preparing a large number of cars for delivery to the State of Maryland (Hendrick inadvertently failed to name a ninth employee, Edward Buckalew, who was given his check the next workday). The General Counsel contends that the awards were unlawful. In support of its position that the awards were not unlawful motivated, the Company presented evidence concerning "technician of the year" and "technician of the month" awards in order to show that the granting of bonuses was not un- usual. For the reason that will,be discussed, I find that the bonuses to the make-ready workers was not discri- minatorily motivated, but that the Company distributed technician of the year and retroactive technician of the month money among its line mechanics in order to dis- courage support for the Union, and thereby violated Sec- tion 8(axl) and (3) of the Act. The $50 bonuses were awarded to make-ready em- ployees and some regularly classified porters and helpers who were specially assigned to prepare a fleet of cars for delivery to the State of Maryland. The contract in ques- tion ' called for the delivery of some 351 cars over a period of about 8 months. However, a substantial number of the cars were delivered in early December. Hendrick testified that some 172 cars were delivered during a short period of time in December. Preparation was made diffi- cult by rainy weather. Some of the work was performed during overtime hours. Most of the work was performed by the Company's young, unskilled, and relatively low- paid employees. In these circumstances, it would not be surprising that the Company, in a burst of Christmas good will, might choose to reward the make-ready workers in some way. I recognize that this is a close question. The bonuses were announced and granted during the election campaign. However, as indicated, the bonuses were awarded in the context of another unusual situa- tion. The Company regarded' its make-ready and other unskilled personnel as a group that was particularly vul- nerable to employer pressure, and therefore (as found) tended to direct much of its unlawful conduct at them. The Company may have been inclined to give them a double dose of rewards (as will be discussed, the Compa- ny gave merit pay increases to the make-ready employ- ees in early January). It is also possible that the Compa- ny saw an opportunity to grant increases to the helpers and newly hired porters (temporarily assigned to make ready) who would not be amenable to "merit" increases. However, it is unlikely that the Company would grant wage increases and other benefits to some of its employ- ees in order to discourage support for the Union, while totally neglecting the line mechanics, who were the larg- est, most important, and most influential group among the unit employees. Indeed this is a principal weakness in the General Counsel's theory of the case. Additionally, the evidence indicated that until the confrontation at the Christmas party, the Company tended to take a hard line, whereas in January the Company took a softer ap- proach, modifying its threatening language while holding out an olive branch in the form of wage increases, which were timed in order to achieve the maximum effective- ness. The technician of the month award was initiated by Service Manager Tomarchio in April 1982. Tomarchio set up a rating system whereby the service writers and Assistant Manager Collins (and Tomarchio in the event of a tie vote) selected the outstanding mechanic of the month. That mechanic was' given a $200' award, which was announced at the monthly service department meet- ings. Second and third awards ($20 and $10, respective- ly) were also given. From the beginning the mechanics found the system distasteful. Evidently they regarded the awards as divisive and smacking of favoritism. There- fore, the recipients would share their awards with the other mechanics. In September Tomarchio asked the me- chanics to select the recipient. The mechanics demon- strated their contempt for the system by selecting the mechanic with the worst record of comebacks. Tomar- chio told them to vote again. The result was that no award was given in September. In his testimony Tomarchio described the technician of the month system, but made no reference to any tech- nician of the year award. No mechanic testified that they were promised a technician of the year award. Neverthe- less General Manager Hendrick testified that at a meet- ing in early January, he told the mechanics that Tomar- chio made a commitment for a technician of the year award, that the mechanics told him that they did not care, but that he insisted he would "settle my obliga- tion," whereupon the mechanics said they would split up the money. The Company then distributed $700 in cash, which was divided up among the mechanics ($53.85 per mechanic). At the same time the Company distributed monthly award money not only for December, but also for September, notwithstanding that Tomarchio had de- clined to give an award for that month. I find that the Company's distribution of a large sum of cash to its mechanics in early January, at the same time that it increased the rate of compensation to its body shop employees and granted merit increases to most of its hourly paid employees, was part and parcel of the same course of conduct that was designed to dis- courage employee support for the Union. Hendrick knew that because of the unique wage structure of the mechan- ics, which was based on their qualifications and rates as KOONS FORD OF ANNAPOLIS 529 set forth in the applicable manual, he could not grant them wage increases in a conventional manner. Hendrick also knew that the mechanics had no interest in any "technician" award, and viewed such awards with con- tempt. Therefore, he seized on a fictitious "technician of the year" award, knowing that the mechanics would simply divide the money among themselves. Hendrick thereby found a means of appeasing the mechanics, who were the spearhead of the union movement, by giving them what amounted to a substantial bonus shortly before the election. Hendrick even added to the pot by reviving the September award, which had been rejected by Tomarchio. I find that the Company violated Section 8(a)(1) and (3) of the Act by granting bonuses to its' mechanics in the guise of a "technician of the year" award, in order to discourage support for the Union. The Company raised the matter of the January distribution by way of defense to the complaint, and was 'permitted to and did present evidence concerning the "technician of the month" and "technician of the year" awards. Witnesses were ques- tioned by Respondent, the General Counsel, and the ad- ministrative law judge concerning the matter. The Janu- ary distribution is closely related to allegations of the complaint concerning wage increases and other compen- sation changes at the time . I find that the matter was fully and fairly litigated, and that it is appropriate for me to make findings thereon. Quaker Mfg. Corp., 224 NLRB 1059, 1061 fn. 3 (1976), enfd. 574 F.2d 358 (6th Cir. 1978). I believe that I am obligated to make appropriate findings on conduct asserted by way of defense by a re- spondent, which conduct appears to be unlawful, regard- less of whether the General Counsel has taken a position on the matter. M & J Trucking, 214 NLRB 592, 597 (1974), enfd. 583 F.2d 337 (9th 0r. 1976). An administra- tive law judge, like the Board, is not confined to consid- er only theories advanced by the parties, but must make an independent evaluation of the evidence.20 3. January pay increases to make-ready and parts department employees and used car mechanics Effective January 6, the Company gave hourly pay in- creases to seven of its eight make-ready employees (25- cent increases to McMullen, Lewis, Sanford Bennett, and Snodgrass, a 30-cent increase to ' Vester, and a 50-cent in- crease to used car_ make-ready employee Marshall). Sharon Albert, the remaining . make-ready employee, worked in the Porsche-Audi Division and was paid per unit cleaned. Effective January 6 the Company also gave hourly pay increases to 6 of its 11 parts department em- ployees (25-cent increases to Brock, Conway, and Mitch- ell; a 35-cent increase to Lawrence; and a 40-cent in- crease to James Sherbert). Among the remaining parts department employees, Arismendi was hired on Decem- ber 1 and worked part time, McCabe began working as a 20 At the hearing the General Counsel asserted that he was not previ- ously aware of the "mechanic of the year" award. In his brief, the Gener- al Counsel takes the position (Br. 83) that the technician of the month awards as administered by Tomarchio, were lawful. Obviously they were, as the program was initiated long before the union campaign. However, the General Counsel did, not take any position with respect to the January distribution. parts driver on November 2, and Cully was promoted to counterman on October 28, when he received an hourly wage increase plus commission . Also effective January 6, the Company gave increases of $25 per week to two of its three used-car mechanics (Strittmatter and Russell). The third mechanic, Owen, was absent because of illness during much of late 1982 and early 1983. Inventory clerk Mary Sherbert also received an hourly raise effective January 6, but her increase is not alleged as discrimina- torily motivated. General Manager Hendrick testified in sum that the January raises were granted pursuant to a semiannual review policy, which he established in the summer of 1981 shortly after becoming manager. According to Hen- drick, employees (except line mechanics) met with and were reviewed by their supervisors in June and Decem- ber of each year. The results of such review, including pay increases if warranted, would be implemented the following month (July and January, respectively). Hen- drick testified that he wanted but did not'require written evaluations, and that consequently some but, not all eval- uations were written. Hendrick testified that he promised "several of the girls upstairs," i.e., the office clericals, that there would be a semiannual review, but that other employees were informed of this policy either by their supervisors or through a "service department training policy" booklet, which was prepared by himself and Service Manager Tomarchio during 1982 and issued in September or October of that year. Tomarchio testified that he gave copies of the manual to line mechanics Pier- son, Smith and Kubert in October 1982. The manual pro-, vided"in pertinent part that: "The Service manager must evaluate at least semi-annually all non-productive person- nel under his authority." Hendrick ands Tomarchio in their testimony defined "non-productive personnel" as those who did not generate income for the Company, i.e., those employees who were paid on the basis, of an hourly wage of fixed salary. Hendrick and John Koons further testified in sum, that this semiannual review policy was consistent with a similar policy utilized at the other Koons dealerships. The evidence indicated that if the Company did in fact follow a semiannual review policy, it was honored more in the breach than the observance. The Company pre- sented in evidence documents that, Hendrick identified as comprising all the written employee evaluations since he became manager. Most of the evaluations were signed by Tomarchio's predecessor, Bob Rose. 'Only one was signed by Tomarchio. The remainder v' ere signed by managers who were principally responsible for sales and clerical personnel, e.g., John Taber and; Mario Debini. There were no written evaluations by Hendrick, Jim Collins, or managers Sherbert, Don, Gavin, or Christ- mas. Archie Brown, a long-time body shop employee who was presented as a company witness, testified that Rose evaluated him in 1981, but that he did not go through any evaluation process thereafter, until June 1983, and specifically that Betty Dorr did not evaluate him in De- cember 1982. Jim Collins testified that he was aware of an evaluation procedure because when he worked as a 530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dispatcher, Rose would evaluate him at the beginning and middle of the year. However Collins admitted that Tomarchio (his immediate supervisor) never evaluated him, and that he (Collins) never evaluated any employ- ees, even in December 1982 when he was acting service manager. According to Collins, he did not evaluate em- ployees because he lacked the experience, although Col- lins was obviously at least as well qualified , and probably more so, than Irv Sherbert in this regard . Make-ready employee Sanford and former make-ready employee Bennett, who were 'presented as company witnesses, tes- tified in sum that Sherbert individually evaluated them every 6 months. Sanford further testified that on each occasion Sherbert filled out a, form, which Sanford signed. Their testimony was contradicted by other com- pany witnesses, including Sherbert himself. Sherbert testified that he never filled out an evaluation form, that Hendrick never told him to do so, and in sum that the only "evaluation" process that he used in De- cember or January, consisted of calling the make-ready employees together, telling them they were doing a fine job but should improve their appearance , and then rec- ommending to Hendrick that they receive raises. Sher- bert testified that this occurred on the morning of Janu- ary 4, immediately on his return from vacation, that Hendrick told him to give the raises , and that he in- formed the employees that afternoon that they would be receiving raises effective Thursday, January 6. Donald McMullen and Charles Vester each testified in sum that Sherbert did not go through any evaluation process until July 1983. Significantly, General Manager Hendrick tes- tified that he drafted a list of proposed raises some time between Christmas and New Year's (including the raises that were subsequently given to the make-ready crew), had the list typed on December 30 or 31, and presented the list to John Koons for his approval on January 4. If so, then it is evident from Sherbert's testimony that Hen- drick intended to give raises to the make-ready crew re- gardless of any evaluation process (Hendrick testified that Sherbert made his recommendations before leaving for vacation on December 24. However, as indicated, Sherbert testified otherwise). Parts Manager Gavin similarly testified that he did not make either oral or written performance reviews, and did not tell employees under his supervision that there would be a 6-month review.21 Gavin testified that in January he recommended Lawrence, Brock, and Howell for raises, but did not recommend raises for any other employees in his department. Hendrick's draft of pro- posed raises, discussed above, indicates that Hendrick'ini- tially intended to give raises to parts employees Conway, Mitchell, and Sherbert but subsequently added Law- rence, Brock, and Howell. Hendrick testified that the three were added because Gavin was late in geting in his recommendations. However, in light of Gavin's testimo- 2i Parts counterman Jack Lawrence, who worked in the department for 5 years, testified as a General Counsel witness that prior to January 1983 he was never told of any review policy. The Company did not present any parts department employees as witnesses. ny, it is evident that Hendrick was determined to give raises even when not recommended by Gavin.22 The evidence discussed above indicates that former Service Manager Rose made use of a review procedure, but that after Rose left the practice fell into disuse. The practice was revived only after commencement of the present litigation, in an effort to retroactively justify the large scale and unprecedented raises and other pay in- creases that were granted shortly before the election. The service department manual relied on by the Com- pany, together with the Company's own records, further indicates that even to the extent that the Company effec- tuated a policy of granting pay raises at periodic inter- vals that policy was designed primarily for a relatively small group of employees. There are only a few "non- productive personnel" in the service department. Below the managerial level they consist of clerical employees, porters, a janitor, and mechanic's helpers. The make- ready and used car employees fall under the sales depart- ment. The parts employees are also in a separate depart- ment. The evidence further indicates that the periodic raise policy was used primarily for the benefit of the clerical employees. As discussed, Hendrick admitted that he told only the clerical employees about the alleged review policy. In early July 1981 , when Hendrick was acting as gen- eral manager and Rose was service manager, the Compa- ny gave raises to' 10 employees , all of whom were cleri- cals. The Company gave no merit increases in January 1982. According to Hendrick and Koons, the Company did not then give raises because of its poor financial con- dition. However, the Company was also in poor financial condition in July 1981 , shortly after Hendrick took over, when the Company gave raises to its clerical (nonpro- ductive) employees, notwithstanding Hendrick's pledge to put the dealership " in order and "put a clamp on all expenses." Because this was the first and only winter of Hendrick's administration prior to the Union's organiza- tional campaign, the evidence plainly falls short ' of dem- onstrating a consistent pattern of granting merit increases each January, much less a committment to the employees to grant such increases. In early July 1982 the Company granted pay increases to 14 employees, 7 of whom were clericals.23 The evi- dence further indicates that the Company did not have a policy against granting wage increases or making other substantial changes in employee compensation at times of the year other than January or July, if in its opinion such changes were warranted. As discussed, in April 1982 the Company substantially changed the rate of compensation for its body shop personnel. Also in the spring of 1982, shortly after Gavin became parts manager, he made a thorough review of the compensation structure in his de- partment, pursuant to Hendrick's instructions. As a 22 Hendrick testified that he and Gavin agreed that parts clerk Stock was a poor performer who was already overpaid. The circumstances of three of the other five department employees who failed to receive raises, have previously been noted. The fifth employee, parts counterman Marski, was by far the highest paid employee in the department. as Make-ready employee Venter testified that he received a raise in July 1982. In fact, he did not. KOONS FORD OF ANNAPOLIS result, the Company , changed the rate of compensation for several department employees. (The employees were paid under a complex system, varying from one employ- ee to another, whereby countermen and sometimes clerks were paid an hourly wage plus percentage of gross sales above a certain amount, while the drivers and some clerks received an hourly wage.) Significantly, the Com- pany did not wait until July to implement these changes. It is evident that by reason of these changes, Gavin felt that the January 1983 raises were not warranted from an economic standpoint, but was pressured by Hendrick into recommending the raises. The case of warranty clerk Bonnie Bailey, relied on by the Company as evidence of its alleged semiannual review policy, is particularly illustrative. Bailey's person- nel file contained an employee status change report, ef- fective November 1 and signed by Tomarchio, which in- dicated that Bailey would receive a commission of 1 per- cent on warranty labor charges . The change was marked as denied by Hendrick because "not semi-annual review," and Hendrick testified that this was his reason for disapproving the change. Hendrick testified that he made the entry about December 1. As the Union had by then filed its election petition, and December was osten- sibly the time for performance reviews, the veracity of Hendrick's entry is at best questionable . In fact, Hen- drick simply overruled Tomarchio's promise to Bailey on its merits. Instead on November 1 (according to the Company's records) the Company paid Bailey $150 "to correct misunderstanding" and effective December 13 (according to company records), the Company gave her a $1-per-hour salary increase (the date of November 1 is scratched out on her personnel folder). If as indicated by the Company's records, the Compa- ny changed Bailey's compensation on November 1 and possibly again on December 13 at the latest, then there was no reason why the Company could not have done likewise for its body shop , parts ' department, and make- ready employees if it were so inclined. Instead , the Com- pany waited until shortly before, the election, and then granted increases to,most of these employees with little evident regard to consideration of merit. In support of its economic defense, the Company also adduced testimony by John Koons to the effect that he followed a semiannual review and merit raise , policy at other dealerships, However, this evidence simply, tended to confirm what Koons admitted , in his ' testimony, namely that he gave Hendrick substantial discretion in running the Company, and that consequently Hendrick normally set pay rates ' at Annapolis, subject to final ap- proval by Koons. Thus, in January 1982 JKJ Chevrolet granted raises, but the Company and Koons Chrysler- Plymouth did not. In July 1980 the Company and JKJ Chevrolet granted raises, but Koons Chrysler-Plymouth did not. Therefore, it is evident that Hendrick was not obligated to follow pay practices at other Koons dealer- ships unless specrfical>ry instructed by Koons. Indeed, Hendrick made clear in his testimony that it was his de- cision to utilize the alleged semiannual review policy, and that he was not ordered to do so by Koons. Also in support of its economic defense, the Company produced internal memorandum that purported to dem- 531 onstrate that the Company regularly followed a semian- nual review policy, and continued to effectuate that policy in December 1982. The Company presented min- utes of a managers' meeting on June 30, 1981, which listed among things to do: "Schedules girls individually for a salary review as promised today." The Company also presented a memo dated June 17, 1982, from Hen- drick to four managers, telling them to prepare their rec- ommendations for salary increases or decreases by June 22. Hendrick did not send copies of the memo to Gavin, Don, or Christmas. These documents, if they prove any- thing, simply confirm that the ostensible semiannual review policy had limited application. The Company also produced two memoranda ostensibly prepared in December 1982. The first, an agenda for a managers' meeting ` on December 1, indicated that the managers were instructed to review all employees and make rec- ommendations regarding raises . The second, a similar agenda for a December 8 meeting, listed as an agenda item "Review of semiannual _ employee evaluations." However, the General Counsel presented in evidence a third agenda, for a December, 22 meeting , indicating review at that meeting of "annual" employee evaluations. As found, no written evaluations were prepared in De- cember or even January, and recommendations to the extent made were submitted to Hendrick in January. It is evident that these memoranda, which were 'prepared after the Union filed its election petition, were simply in- tended to falsely create the -impression that the Company was carrying out a preordained review policy. The employee complement in the_ used;car department consisted of mechanics Owen, Russell, and Strittmatter and make-ready employee Marshall . Marshall had previ- ously received a 50-cent-per-hour merit increase in May 1982. Russell and Strittmater were line mechanics who were transferred into the used-car department in Septem- ber 1982 on a temporary basis because of Owen's 'illness. They were placed on a hourly wage ($6.25, or $250 per week). Marshall, who was presented as a company wit- ness, testified that in late December, General Sales Man- ager Taber told him that he would probably get a raise if he could put in more timie. Marshall was suffering and continued to suffer from asthma, and his attendance never improved. Nevertheless, without waiting to see if his attendance improved, the Company, through Used- Car Manager Christmas, informed Marshall on'January 4 or 5 that he"was receiving a raise, adding the admonition that he should put in more time. Marshall received a 50- cent-per-hour increase, one of the largest increases given by the Company at that time. Mechanic,, Russell, who was presented as a General Counsel' witness, testified that on the morning of the election Christmas told him that he would like to give him a raise but could not "because of the union stuff that was going on." Russell complained that he heard that the make=ready employees had received raises. Russell testi- fied that that afternoon, Christmas told him that the Company's attorney advised that they could give sched- uled raises, and that Russell would get a '$25 per week raise. Russell Strittmatter and Marshall all received raises effective January 6. Christmas, in his testimony, denied 532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that he discussed the raise with Russell on election day. Christmas testified that in December he recommended to Hendrick that the three employees receive raises because he felt they deserved them, but that Hendrick was unsure of what to do because of the pending election. Christmas further testified that on January 5 he again asked Hendrick about the raises, and that Hendrick, after apparently making a telephone call, told Christmas to "give them the raises and do the performance reviews." Christmas immediately informed the employees that they were receiving raises. Marshall, in his testimony, inferentially corroborated Christmas' testimony in one respect . Marshall testified that on the day he learned of his raise, Russell indicated to him that he also received a raise. However, Christmas' testimony was inconsistent with the Company's answer to the complaint and with the testimony of Hendrick and Marshall in other respects. The Company's answer stated that the raises to Strittmatter and Russell "were contem- plated at the time of reassignment as necessary in these `special cases' to ease the financial impact of their classi- fication change." If so, then there was no reason why they could not have received the raises long before Janu- ary, since, according to Hendrick and Koons, a change in job duties does not come under the alleged semiannual review policy, and therefore compensatory raises may be and were in fact granted at any time. Moreover, as discussed, Hendrick allegedly made his decision to give the raises in December, subject only to Koons' final approval, which was given on January 4 when Koons visited the dealership. If the Company needed legal advice before granting raises, then it is un- likely that it would have waited until January 4 or 5 to obtain such advice . Additionally, as discussed, Manager Taber, who was Christmas' superior, informed Marshall in late December that he would probably not receive a raise until he improved his attendance . I do not credit Russell's testimony concerning his alleged conversation with Christmas on election day. I find that all the em- ployees received their raises at the same time . However I find that but for the pending election, they would not have received those raises. In sum, the Company on January 6 granted pay in- creases to 16 unit employees, increased the rate of pay of 9 other unit employees, and granted bonuses to 13 line mechanics. These changes effectively and immediately increased the compensation of 38 of 66 unit employees-"' There is direct evidence, including company admissions, that the rate increase granted to the body shop employ- ees was a last minute effort by the Company to redress longstanding employee grievances in order to.discourage support for the Union. The evidence adduced in this pro- ceeding further demonstrates that the Company did not 24 The circumstances of some of the unit employees who did not re- ceive raises has previously been discussed . Among the remaining employ- ees, the porters and two clerical employees were recently hired, the help- ers were paid by arrangement with their respective mechanics, and the janitor was a part time, semiretired employee. The remaining unit em- ployees (service dispatcher, service writers, and Porsche-Audi mechanics) were paid by salary plus commission or flat rate arrangements, which placed them among the Company's highest paid employees. In these cir- cumstances, the fact that these employees did not receive increases in January 1983 is not significant. have a systematic, general, semiannual review policy; that the Company's actions in January were unusual and unprecedented; .that many employees probably would not have received increases but for the Union's organization- al campaign; and that even to the extent that some em- ployees might have received raises, the timing of these increases was carefully calculated to achieve the maxi- mum propaganda values in the election campaign. I find that in January, the Company granted pay increases, in- creases in wage , rates, and bonuses to its employees in order to discourage support for the Union, and thereby violated Section 8(a)(1) and (3) of the Act. C. The Election, the Propriety of a Conventional Cease-and-Desist Order, and the Propriety of a Bargaining Order The Union's objections to the conduct of the election, which are encompassed by certain allegations of the complaint, are meritorious to the extent that I have found that the Company engaged in unfair labor practice conduct during the critical period between the filing of the election petition on November 24 and the Board-con- ducted election on January 12. Therefore" I am recom- mending that Union Objections 1, 2, 3, and 4 (covering pay increases in January) and 9, 11, 12, 13, and 15 (threats of reprisal) be sustained. For the reasons previ- ously discussed, I am recommending that Objections 6 (bonuses to- make-ready workers) and 10 (threat to fire well-liked supervisors) be overruled. I further find that the Company unlawfully interfered with the conduct of the election by conduct alleged in the complaint and found unlawful but not specifically alleged in the objec- tions (threats, interrogation and solicitation) and conduct found unlawful but not alleged in either the complaint or the objections (bonuses to line mechanics). See American Safety Equipment Corp., 234 NLRB 501 (1978), revd. on other grounds 643 F.2d 693 (10th Cir. 1981). In Enola Super,Thrift, 233 NLRB 409 (1977), the Board held: ... Our normal policy is to direct a new elec- tion whenever an unfair labor practice occurs during the critical period since "[c]onduct violative of Section 8(a)(1) is, a fortiori, conduct which inter- feres with the exercise of a free and untrammeled choice in an election." Dal-Tex Optical Co:, 137 NLRB 1782, 1786-1787 (1962). The only recog- nized exception to this policy is where the viola- tions ' are such that it is virtually impossible to con- clude that they could have affected the results of the election. Applying the foregoing standard to the election in the present case, the election must be set aside by reason of the Company's unlawful conduct. I further find that a cease-and-desist order is warranted with respect to all violations found herein` including threats of plant closure, discharge, and refusal to bargain in good faith. In Passavant Memorial Area Hospital, 237 NLRB 138 (1978), the Board held as follows: It is settled that under certain circumstances an em- ployee may relieve himself of liability for unlawful KOONS FORD OF ANNAPOLIS conduct by repudiating the conduct. To be effec- tive, however, such repudiation must be "timely," "unambiguous," "specific in nature to the coercive conduct,", and "free from other proscribed illegal conduct." Douglas Division, The Scott & Fetzer Com- pany, 228 NLRB 1016 (1977), and cases cited there- in aV 1024. Furthermore, there must be adequate publication of the repudiation to the employees in- volved and there must be no proscribed conduct on the employer's part after the publication. Pope Maintenance Corporation, 22$ NLRB 326, 340 (1971). And finally, the Board has pointed out that such repudiation or disavowal of coercive conduct should give assurances to employees that in the future their employer will not interfere with the ex- ercise of their Section 7 rights. See Fashion Fair, Ina, et al., 159 NLRB 1435, 1444 (1966); Harrah's Club, 150 NLRB 1702, 1717 (1965). John Koons' postparty apology to employees Kubert and Pierson, and the speeches of Hendrick and Koons on January 5 and 10, respectively, in which they asserted that the Company would not close but would bargain in good faith, fail to meet the above standard. Koons said nothing to Donald West, who heard Koons tell Pierson that he put his job on the line, nor to any other employ- ees who may have heard about the incident at the Christmas party. Koons waited until over 3 weeks after the party, and even longer after Tomarchio had made a similar threat, to assert that he would not close the deal- ership. In the meantime, the Company permitted the impact of these and other threats to settle in the minds of the employees. When Koons, finally got around , to making this assertion, he referred only to alleged rumors of closure, without acknowledging that he personally was responsible for such rumors. Moreover, the statements of Hendrick and Koons were accompanied by and occurred in the context of other statements and actions, which for all practical pur- poses nullified their promise to bargain in good faith. Thus, in the same speech that Hendrick made this prom- ise, he threatened the employees with loss of various benefits if the Union came in. At the very time they made these' promises, they were in the process of grant- ing substantial wage,increases in order to discourage em- ployee support for the Union„ Neither Koons ' nor Hen- drick made any reference to the unlawful actions of To- marchio and Sherbert. Therefore, a conventional cease- and-desist order is warranted. Passavant, supra; see also Safeway Stores, 266 NLRB 1124, 1125 (1983). The more difficult question is whether by reason of the Company's unlawful conduct, I should find that the Company unlawfully failed or refused to recognize and bargain with the Union, and therefore, that a remedial bargaining order is warranted. The applicable standard is set forth in the landmark case of 11^RB v. Gissel Packing Co., 395 U.S. 575, 613-615 (1969). In Gissel the Supreme Court held as follows: Before considering whether the bargaining orders were appropriately entered in these cases, we should summarize the factors that go into such ter- 533 ipination. Despite our reversal of the Fourth Circuit below in Nos. 573 and 691, on all major issues, the actual area of disagreement between our position here and that of the Fourth Circuit is not large as a practical matter. While refusing to validate the gen- eral use of a bargaining order in reliance on cards, the Fourth Circuit nevertheless left open the possi- bility of imposing a bargaining order, without need of inquiry into majority status on the basis of cards or otherwise, in "exceptional" cases marked 'by "outrageous" and "pervasive" unfair labor prac- tices. Such an order would be an appropriate remedy for those practices, the court noted, if they are of "such a nature that their ` coercive effects cannot be eliminated by the application of tradition- al remedies, with the result that a fair and reliable election 'cannot be had." NLRB v. Logan Packing Co., 386 F.2d 562, 570 (CA. 4th Cir. 1967); see also NLRB v. Heck's Inc., 398 F.2d 377, 388. The Board itself, we should add, has long had a similar policy of issuing a bargaining order, in the absence of a § 8(ax5) violation or even a bargaining demand, when that was the' only available, effective remedy for substantial unfair labor practices. See e.g., United Steelworkers 'of America v. NLRB., 126 U.S.App.D.C. 215, 376 F.2d 770 (1967); J. C. Penny Co., Inc., v. NLRB., 384 F.2d 479, 485-486 (C.A. 10th Cir. 1967). The only effect of our holding here is to approve the Board's use of the bargaining order in less ex- traordinary cases marked by less pervasive practices which nonetheless still have the tendency to under- mine majority strength and impede the election processes. The Board's authority to issue such an order on a lesser showing of employer misconduct is appropriate, we should reemphasize, where there is also a showing that at one point the union had a majority; in such a case, of course, effectuating as- certainable employee free choice,become's as impor- tant a goal as deterring employer misbehavior. In fashioning a remedy in the exercise of its discretion, then, the Board can properly take into consideration the extensiveness of an' employer's unfair practices in terms of their past effect on election conditions and the likelihood of their recurrence in the future. If the Board finds that the possibility of erasing the effects of past practices and of ensuring a fair elec- tion (or a fair rerun) by the use of traditional reme- dies, though present, is slight and that employee sentiment once expressed through cards would, on balance, be better protected by a bargaining order, then such an order,should issue .... We emphasize that under the Board's remedial power there is still a third category of minor or less extensive, unfair labor practices, which, because of their minimal impact on the election machinery, will not sustain a bargaining order. There is, the Board says, no per se rule that the commission of any unfair practice will automatically result in a § 8(a)(5) violation and the issuance of an order to bar- gain. See Aaron Brothers, supra. 534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD If John Koons had not backed away from his prior threat, this case would plainly constitute a Class I Gissel case, i.e., an exceptional case marked by outrageous and persuasive unfair labor practices , which without further analysis of the factual context, would warrant issuance of a remedial bargaining order. See Gissel, 395 U.S. at 587- 589, 615 (the Sinclair case). Although Koon's disclaimers were inadequate to preclude a conventional cease and desist order, they must be considered as part of the over- all factual context in determining the propriety of a bar- gaining order. On consideration of that context, I ford that the Company has engaged in a pattern of unreme- died unfair labor practices that effectively destroyed the conditions for a free and fair election, that those condi- tions probably cannot and will not be restored to any time in the foreseeable future, and that therefore a bar- gaining order is warranted , based on the Union's majori- ty status as of November 23 and 24, when it requested recognition and petitioned for a Board-conducted elec- tion. The present case presents an almost textbook example of the "fist inside the velvet glove." NLRB v. Exchange Parts, 375 U.S. 405, 409 (1964). The Company through its supervisory personnel repeatedly hammered home the theme that unionization would per se result in the loss of a wide range of privileges and benefits that were impor- tant to the employees, e.g., job security, employer assist- ance, access to management, hobby night, working on cars outside the job, parts discount, opportunity for schooling advancement, drinking beer after work, and the annual Christmas party. These threats for all practi- cal purposes nullified the Company's belated assertion that it would bargain in good faith. Moreover, the em- ployees were well aware that retention of some of these privileges and benefits were dependent on employer good will or other subjective or variable factors within the Company's control, e.g., the extent to which the service manager might grant more time to a mechanic on a flat rate job. Therefore, it is unlikely that the posting of a Board notice (and that essentially is all that a conven- tional Board order could provide in this case) would offer much assurance to the employees . See E S. Merri- man & Sons, 219 NLRB 972 (1975), enfd. mem 569 F.2d 351 (9th Cir. 1978).25 Most serious, however, were the pay increases granted shortly before the election. In these cases, the Board does not punish the employees by depriving them of such benefits. Essentially all the Board can do is to tell the employer not to do it again. This would be a case of locking the barn door after the horses were stolen. By its unlawful actions (most conspicuously in the situation of the body shop employees) the Company at the very last minute acted to redress employee grievances that gave rise to the organizational campaign , and granted pay in- creases that were designed to discourage support for the Union.26 The impact of such actions, coupled with the 86 Even a subsequent apology could not reasonably be expected to wipe out an implied threat of discharge from the Company's president. As Pierson put it on cross-examination: "Its going to stick in my mind for a long time." 86 As indicated, the vote in the election was 27 to 39 The votes of the nine body shop employees alone might well have been decisive. Company's unlawful threats, cannot easily be forgotten. Therefore the Board, with judicial approval, has issued remedial bargaining orders in cases involving comparable or even less serious employer misconduct . See Tipton Electric Co. v. NLRB., 621 F.2d 890, 898-899 (8th Cir. 1980) (threats of loss of access to management and a har- monious working relationship, coupled with promised improvements in pay policy that were granted shortly after-the election); NLRB v. Colonial Knitting Corp., 464 F.2d 949, 952 (3d Cir. 1972) (interrogation of an employ- ee and pay raises granted on the day before the election); Keystone Pretzel Bakery, 696 F.2d 257, 263-265 (3d Cir. 1982) (authorizing employee to conduct surveillance, in- terrogation, solicitation and promise to resolve griev- ances and, grant benefits, and polling ,employees); Gor- donsville Industries, supra, 258 NLRB at 603 (promise and grant of general wage increases deemed sufficient to warrant bargaining order even without consideration of other unfair labor practices); and Michigan Products, 236 NLRB 1143, 1147 (1978) (promises of wage increases and benefits and to deal directly with employee commit- tee). I further fmd that neither the passage of time nor em- ployee turnover is likely to result in conditions that would allow uncoerced employee choice in a free and fair election. I have already discussed some of the rea- sons for this fording. The Company presented evidence that as of the close of the hearing (October 18, 1983), 24 of the 66 employees in the unit as of January 10 were no longer employed by the Company; and one was no longer in the unit. The evidence indicates that there is substantial turnover among the Company's younger, un- skilled employees, e.g., porters, helpers, and make-ready employees. However, the evidence also indicates that there is much greater stability at higher levels of pro- gression, particularly among the line mechanics and those on commission. Thus, among the employees who were still in the unit as of the close of the hearing, Smith was employed by the Company for 7 years, Kubert for 9 years, Cully for 4 years, Cole for 7 years, Felesky for 15 years, Pierson for 15 years, Lawrence for 5 years, Archie Brown for 11 years, Henry Brown for 15 years, George Marski for 11 years, Russell for 5 years, Strittmatter for 38 years, and John Chambers for 23 years. These em- ployees included the principal union adherents and em- ployees who were direct targets of the Company's unfair labor practices. It is evident that it will be a long time before the 1982-1983 election campaign is forgotten at the Company and before the effects of the Company's unlawful conduct can be dissipated. See E.S. Merriman & Sons, supra. I ford that the Company violated Section 8(a)(5) and (1) of the Act by failing and refusing to recognize and bargain with the Union on and after November 24, 1982, as the exclusive representative of its employees in the ap- propriate unit. It follows that the Company further vio- lated Section 8(a)(5) and (1) by granting bonuses to its make-ready workers in December and by granting wage increases, a higher wage rate, and unscheduled bonuses to unit employees in January, without giving the Union KOONS FORD OF ANNAPOLIS notice or an opportunity to bargain concerning such mat- ters. Trading Port, 219 NLRB 298, 302 (1975). CONCLUSIONS OF LAW 1. The Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act, 3. All full time and regular part time Service Depart- ment employees, including 'mechanics, body and paint shop workers, parts department employees, drivers, help- ers, make-ready employees, porters, dispatchers, and jani- tors employed at Respondent's Annapolis, Maryland, fa- cility but excluding sales persons, office clerical employ- ees, guards, and supervisors as defined in the Act, consti- tute a unit appropriate for the purposes of collective bar- gaining within the meaning of Section 9(b) of the Act. 4. By discriminatorily granting wage increases , higher wage rates, and bonuses to its employees in order to dis- courage support for' the Union, the Company has en- gaged and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 5. By granting such increases; by threatening its em- ployees with plant closure, loss of employment, and other reprisals if they choose the Union as their bargain- ing representative; by coercively interrogating its em- ployees concerning their union activity and that of their fellow employees, and by soliciting employees to engage in antiunion activity, the Company has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act, and thereby has violated and is violating Section 8(a)(1) of the Act. 6. Union Objections, 1, 2, 3, 4, 9, 11, 12, 13, and 15 in Case 5-RC-11899 have been sustained by the evidence, and the Company thereby interfered with the , Board election on January 12, 1983. Union Objections 6 and 10 are overruled. 7. By the conduct set forth in paragraphs 4 and 5 above, the Company interfered with the employees' free- dom of choice in the election, and precluded any reason- able possibility of a fair and uncoerced rerun election. 8, Since November 24, 1982, the Union has been and is, the exclusive collective-bargaining representative of the Company's employees in the unit described above. '9. By failing and, refusing since November 24, 1982, to recognize and bargain, with the Union as the exclusive bargaining representative of the employees in the above appropriate unit, and by unilaterally changing the wages of its employees without giving the Union notice or an opportunity to bargain concerning such matters, the Company has engaged in and is engaging in unfair labor practices within, the meaning of Section 8(aX5) and (1) of the Act. 10. The aforesaid labor practices are unfair labor prac- tices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Company has committed viola- tions of Section 8(a)(1), (3), and (5) of the Act, I shall recommend that it be required to cease and desist there- from and from in any like or related manner infringing 535 on' the rights guaranteed its employees,in Section 7 of the Act. As heretofore, found, affirmative relief is also appropriate here. I shall direct the Company to recog- nize and to bargain collectively, upon request, with the Union as the exclusive bargaining representative of the employees in the unit found appropriate herein, and to embody any understanding reached in a signed agree- ment. The remedial order will also include the custom- ary provisions relating to the posting of notices, and re- lated matters. Finally, I shall recommend that the election in Case 5- RC-1 1899 be set aside and, in view of the bargaining order entered herein, that Case 5-RC-1,1899 be dis- missed. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed27 ORDER The Respondent, Koons Ford of Annapolis, Inc., An- napolis, Maryland, its officers, agents, successors, and as- signs, shall 1. Cease and-desist from (a) Threatening its employees with plant closure; loss of jobs, job security, or opportunity for advancement; loss of access to or help from management, loss of privi- leges or benefits of employment; more onerous working conditions, futile contract negotiations; or other reprisals, if they designate, select, or support District 65, United Automobile, Aerospace and Agricultural Implement Workers of America or any other 'labor organization as their bargaining representative. (b) Coercively interrogating employees about their union attitude or activities or those of their fellow em- ployees. (c) Soliciting employees to engage in antiunion activi- ty. (d) Granting wage increases or other improvements in terms and conditions of employment, or redressing griev- ances, in order to discourage support for the Union; pro- vided, however, that nothing herein shall be construed as requiring Respondent to vary or abandon any economic benefit or any term or condition of employment that it has heretofore established. (e) Refusing to recognize or bargain collectively with the Union as the exclusive collective-bargaining repre- sentative of its employees in the above described appro- priate unit. (f) Unilaterally changing wages or other terms or con- ditions of employment without prior notice to the Union or without affording the Union an opportunity to negoti- ate and bargain concerning such matters. (g) In any like or related manner interfering with, re-, straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 27 If no exceptions are filed as provided by Sec 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board, and all objections to them shall be deemed waived for all pur- poses 536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Recognize, and on request, bargain collectively in good faith with the Union as the exclusive bargaining representative of the employees in the unit described above, and embody in a signed agreement any under- standing reached. (b) Post at its office and place of business in Annap- olis, Maryland, copies of the attached notice marked "Appendix."28 Copies of the notice on forms provided 28 Ifthis Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." by the Regional Director for Region 5, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspic- uous places including all places where notices to employ- ees are customarily posted . Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. IT IS FURTHER recommended that the election in Case 5-RC-11899 be set aside and that the proceeding be dis- missed.