White Plains Lincoln Mercury, Inc.

WHITE PLAINS LINCOLN MERCURY 1133 White Plains Lincoln Mercury, Inc. and Local 259, United Automobile Workers, International Union of United Automobile, Aerospace and Agricultural Implement Workers of America. Cases 2-CA-17617 and 2-RC-18845 May 27, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN, BABSON, AND CRACRAFT On March 31, 1982, Administrative Law Judge Harold B. Lawrence issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed exceptions and a supporting brief. The Respondent filed a brief in reply to the General Counsel's exceptions. 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 conclusions only to the extent consistent with this Decision and Order. For the reasons set forth fully in the judge's de- cision, we agree with his finding that on the morn- ing of October 2, 1980, 2 the Respondent violated Section 8(a)(3) and (1) by discharging 3 employees Steven Chirico, Martin Weemaels, Clement Crisci, James Harvey, and Robert Hopgood in retaliation for their union activities, and that the Respondent further violated Section 8(a)(3) and (1) by refusing to reinstate Crisci because it believed he initiated the unionization effort. We also affirm the judge's conclusion that the Respondent violated Section 8(a)(1) by threatening, in two separate conversa- tions with individual employees on October 2 and in a letter to employees dated November 20, to ter- minate employees, to engage in other unspecified reprisals against employees, and to go out of busi- ness if the Union came in. We also agree, based solely on the judge's credibility findings, that the Respondent did not unlawfully interrogate Chfrico on June 19, September 30, or October 7; did not unlawfully encourage employees to circulate a peti- tion disavowing support for the Union; and did not create the impression of surveillance of employees' protected activities. Finally, we agree with the 1 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. 2 The judge erroneously refers to this date as "October 6, 1980," in sec. !ILA, par. 7 of the decision. All dates in this decision refer to 1980 unless otherwise stated. 3 In this decision the terms "layoff" and "discharge" may be used interchangeably because the judge referred to the October 2 action alter- nately as layoff and discharge. judge's determination in the representation case that the challenge to discriminatee Crisci's ballot should be overruled. We disagree, however, with the judge's disposi- tion of several 8(a)(1) allegations, as described in sections 1-3 below, as well as with his determina- tion that the election cannot properly be set aside and that no remedial bargaining order may issue. 1. The Respondent car dealership employed ap- proximately 14 service department employees. In late September, employee Chirico obtained union authorization cards from a steward at a nearby car dealership. By September 25, eight service depart- ment employees had signed cards. On September 26, a ninth employee signed a card. On October 8, the Union filed a petition for an election in a serv- ice department unit. On the morning of October 2, without prior notice or indication of any sort, Joe Rossi, the manager of the service department, called the five above-named service department employees into his office and told them they were being laid off because business was slow. All five had signed au- thorization cards. On that same day, Cary Frankel, the Respondent's president, arranged, and then can- celed, a dinner meeting for that evening with the laid-off employees. Employee Crisci was not noti- fied about the cancellation and appeared at the Re- spondent's premises at 6 p.m. The judge credited Crisci's testimony that Frankel told him that he knew about the Union the night before and that Frankel asked Crisci directly who started the Union.4 Despite this specific finding, the judge nevertheless failed to discuss the import of Fran- kel's question and to conclude that it constituted an unlawful interrogation about the identity of union supporters. We fmd that this credited evidence es- tablishes an interrogation that, under the circum- stances, reasonably tended to coerce and that was therefore a clear violation of Section 8(a)(1) of the Act. 2. On the day after the Respondent's unlawful layoff of the service department employees named above, Chirico returned to the Respondent's place of business to pick up his paycheck. He testified that he told Frankel that the men wanted to return to work. Although the judge did not Make a find- ing about Frankel's specific reply, 5 he did find that a discussion ensued regarding Frankel's proposed plan for a reorganization of the shop's supervisory 4 The judge's discussion of this entire conversation is set forth in the section of his decision entitled "Animus Toward the Union as Expressed in Statements by Management." The judge states that Frankel "conceded" during his testimony that in this exchange he "made some land of suggestion to Chfrico relating to a petition to withdraw the authorization cards filed with the Union." 288 NLRB No. 122 1134 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD system. The plan involved dividing the mechanics into two teams under two different supervisors, Pat Gravenese and Jack Care11a, thereby removing a major source of employee dissatisfaction, Manager Joe Rossi, from direct supervisory responsibility over any of the mechanics. 6 During this conversa- tion Frankel proposed meeting again with a group of the laid-off employees to discuss further the via- bility of the plan of reorganization. Chirico, Wee- maels, Harvey, and Hopgood met with Frankel on October 5 at a nearby restaurant. 7 There, Frankel explained, with the aid of a flow chart, how the se- organized service department would be run, i.e., with a layer of supervision between the employees and Rossi. Frankel testified that the purpose of the plan was to remove Rossi from the employees' chain of command. The judge found that Frankel presented the proposal in response to the discrimin- atees' expressed desire to return to work and fol- lowing "some kind of suggestion" from Frankel that they abandon the Union. In addition, as the judge correctly notes, at no time during these con- versations with employees did Frankel refer to the Respondent's supposed fmancial problems, which purportedly led to the layoffs just days earlier. After further discussion with Chirico on October 7, Frankel notified Chirico, Weemaels, Hopgood, and Harvey by mailgram that they should report to work no later than October 13. These four re- turned on that date to find the reorganization plan in place. The division of the department into two teams, as outlined in the flow chart model, contin- ued for a period of 2 weeks and was then aban- doned. The judge dismissed the complaint allegation that this reorganization plan was an unlawful promise of improved working conditions in re- sponse to the employees' expression of dissatisfac- tion. He based this conclusion in large part on his finding that the revised supervisory structure would not actually improve working conditions for employees, but rather would subject them to in- creased and more critical supervision than had been the case under Rossi. He concluded that the proposal was merely "put forth as a smokescreen in the event of legal complications under the Act and as a format for keeping discussion going with the men until Frankel was sure that they had all 'learned their lesson' and understood that he would 6 The judge found, based on credited evidence, that on October 2, the day of the layoffs, Frankel discussed with the discriminatees their reasons for going to the Union and that one or two stated sources of their dissat- isfaction was Rossi's treatment of Cosci, who the Respondent perceived was behind the unionization effort. We correct the judge's misstatement, in the section of his decision entitled "Background," that Crisci participated in the October 5 discus- sion concerning the proposed reorganization not tolerate the Union." In light of his other find- ings, we disagree with the judge's disposition of this issue. As stated above, the idea of a supervisory reor- ganization was first suggested to employees only after they had been unlawfully discharged in retal- iation for their unionization efforts and after Fran- kel had elicited from them that at least one com- plaint about their working conditions was Rossi's manner of supervision. Because Rossi was the object of their dissatisfaction, Frankel's proposal to insulate employees from Rossi by placing a buffer level of supervision between them and Rossi would in fact be perceived by the employees as a bene- fit—indeed, one directly responsive to their com- plaint—irrespective of the judge's characterization of the closer and "more critical" supervision they might encounter under the two-team approach. Moreover, the judge found that Frankel cast the reorganization line merely as a lure to continue the dialogue with the terminated employees. There is no evidence that the plan was ever discussed with employees who had not been laid off. In his con- versation with the employees concerning their desire to return to work, Frankel followed up his suggestion that they abandon their support for the Union with his proposal of a formula for eliminat- ing one of the the problems that led to their inter- est in the Union. 9 Therefore, contrary to the judge, we find that this apparent quid pro quo—giving up the Union in exchange for their old jobs under new circumstances—clearly constitutes an unlawful promise of benefit under Section 8(a)(1). Accord- ingly, we find that the Respondent violated Section 8(a)(1) by so promising to improve employees' working conditions and, subsequently, by actually changing the supervisory system and implementing the reorganization plan for the first 2 weeks after their return from layoff. i° 3. As the judge sets forth in his decision, from the time the Respondent first learned of the em- ployees' organizational efforts, its management made various statements and took certain actions indicative of its opposition to the Union. Some of this opposition took the form of unlawful threats of retaliation, including threats to close the business." 8 See the section of the judge's decision entitled "G Promises Respect- ing Conditions of Employment" 9 The judge points out m the section of his decision entitled "D. Urging Circulation of Petition Among Employees For Withdrawal of Union Support," and Frankel's testimony establishes that Frankel _con- ceded, making a suggestion regarding a petition renouncing support for the Union. 10 The plan's quick demise further supports the conclusion that there was no valid business reason for the reorganization and that it was only a ruse to attract the laid-off employees " See the section of the judge's decision entitled "F. Threats To Close the Busmess, Threats of Reprisal," WHITE PLAINS LINCOLN MERCURY 1135 During the course of the preelection campaign, on November 13 and 20, Frankel mailed letters to the employees urging them to vote against the Union. The November 13 letter is styled as an at- tempt to answer questions employees may have about union representation and addresses a variety of issues. Among the statements in the November 13 letter are the following: The Union does not give wage increases, better benefits or job security. The union's promises are simply words. The only promise they can deliver on is that if they win, they will be the only one to speak for you. . . [flu addition to the price in dues and assess- ment that you will pay for union representa- tion, you will lose some of the face to face contact with management. You face the possi- bility of a disruptive strike and you may be re- quired to picket. You know the financial condition of our in- dustry. If the union insists on excessive or h-re- sponsible demands, we may be forced to lay people off or we may be forced into bankrupt- cy. The November 20 letter responds to certain union campaign literature as follows: All of the benefits described in the union's letter are paid for by the employer. We pay for pension. We pay for insurance. We pay your wages. We pay your other fringe benefits. If we do not have the money for these benefits we must do something to cut our expenses. The Union claims they will give you "job security." Again UNTRUE. The union does not employ you; we do. if we are economically unable to pay and we have to lay people off, the union can not prevent it. If we have to go out of business, the union can not prevent that either. T'he letter continues with a listing of 19 area car dealerships that had recently gone out of business, noting: "All of the employees of these dealers were thrown out of work when their employer went out of business." The letter goes on: We do not want to be forced out Of busi- ness. . . . But we need the flexibility to operate competitively. The union will try to take that flexibility away. WE DON'T NEED THE UNION AND NEITHER DO YOU. Aside from the cost to you in dues and assessments, if they force us out of business. It could cost you your job. TOMORROW WHEN YOU VOTE THINK OF HOW LITTLE YOU STAND TO GAIN FROM HAVING A UNION AND HOW MUCH YOU COULD LOSE. [Emphasis in original.] The judge concluded that both letters contained "clear and unequivocal threats" of job loss as the consequence of voting for the Union. We agree with the judge's conclusion only as applied to the November 20 letter.12 The only reference in the November 13 letter to the possibility of job loss is phrased as a hypotheti- cal situation in which an unreasonable union might "insist on excessive or irresponsible demands," which could force the Respondent to take business measures that could result in adverse consequences for employees. Further, the overall tone of the letter is designed to raise questions in the employ- ees' minds about possible disadvantages resulting from union representation and to point out that a basic principle of collective bargaining is that a union cannot unilaterally guarantee improvements in all terms and conditions of employment. By contrast, the November 20 letter is fraught with reminders that the Respondent, as the source of the employees' livelihoods, might decide to sac- rifice their jobs in the event of unionization. Its message was to equate unionization with unprofita- bility, loss of jobs, and business closing—not on the basis of objective fact or probable consequences beyond the Respondent's control, but rather as cal- culated threats during the course of an intense an- tiunion campaign." While the November 13 letter attempts to fuel debate on the Union's worth, the November 20 letter conveys the message that the employees could lose their jobs if they supported the Union and selected it to represent them. Ac- cordingly, we affirm the judge's fmding that the November 20 letter threatened the employees with loss of their jobs; we reverse, however, his finding that the November 13 letter contains unlawful threats of retaliation and find, instead, that it falls within the bounds of permissible campaign tactics. See NLRB v. Gissel Packing Co., 395 U.S. 575, 618- 619 (1969), and NLRB v. Sinclair Co., 397 F.2d 157, 160 (1st Cir. 1968). Also compare, e.g., A. J. 1,2 In adopting the judge's finding that the November 20 letter unlaw- fully threatens, employees' job security, we reject the Respondent's Con- tention that its due-process rights were in any way infringed by virtue of the absence of a specific allegation in the complaint dealing with the campaign letters. We note that the issues raised by the letters were fully litigated and that the Respondent had adequate opportunity both to present evidence supporting its position and to object to the admission of testimony on the subject (from Frankel during cross-examination) and to the admission of the documents themselves. We note that the Respond- ent's counsel actually argued in support of the introduction of the letters into evidence at the hearing Moreover, we find, as the judge implicitly did, that the content of the letters is sufficiently related to the allegations in the complaint to be encompassed within it 13 See National Micronetics, 277 NLRB 993, 995 (1985). 1136 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Schmidt Co., 265 NLRB 1646 (1982), with Comput- er Peripherals, 215 NLRB 293 (1974), and Stumpf Motor Co., 208 NLRB 431, 431-432 (1974). 4. On November 21, a representation election took place among the service department employ- ees, resulting in a six to six vote. There were two determinative challenged ballots and the Petitioner- Union filed objections to the conduct of the elec- tion. Following an investigation, the Acting Re- gional Director issued a report overruling the Union's challenge to the ballot of Jack CareIla, finding him not to be a supervisor. He did not re- solve the challenge to Crisci's ballot, but consoli- dated that issue with the instant unfair labor prac- tice proceeding because the lawfulness of his dis- charge would be determinative of his voting eligi- bility. The judge concluded that Crisci was dis- charged and denied reinstatement in violation of Section 8(a)(3) and (1), overruled the challenge to his ballot, and ordered that it, along with Carella's ballot, be opened and counted. As for the objections, the Acting Regional Di- rector recommended that the Union's two specific objections be overruled and the third objection—a catchall objection that alleged that by "these and other acts" the employer had interfered with the election—be set for hearing to resolve whether Frankel unlawfully interrogated employees and so- licited an antiunion petition on October 8, 1980. Evidence concerning these alleged events was un- covered in the investigation of the unfair labor practice charges that the Union filed before the election, and the allegations were set forth in para- graph 11 of the complaint. Except for the matters included in paragraph 11, the Acting Regional Di- rector recommended that the third objection be overruled. The Union filed no exceptions to his report, and the Board adopted it. Thereafter, the Acting Regional Director issued a "Notice of Hearing on Objections and Challenges and Order Consolidating Cases." In addition to consolidating the unfair labor practices for hearing, it expressly provided that the hearing "should be held for the purpose of receiving evidence to re- solve . . . the issues raised by Petitioner's general objection ('Objection 3') to the election, to the extent that these issues accord with the allegations in paragraph 11 of the Complaint." The judge found that the Respondent did not, as paragraph 11 alleged, unlawfully interrogate employees or urge them to circulate an antiunion petition. Because he found no merit to these allegations, he concluded that there was no basis for sustaining the consoli- dated catchall objection and, therefore, no basis for setting aside the election. Citing Irving Air Chute Co. 14 and Bandag, Inc., 15 the judge then deter- mined that, in the absence of meritorious objec- tions, he was precluded from recommending a re- medial bargaining order, despite his companion finding that the Respondent's other unfair labor practices were among the "most egregious" and "flagrant form[s] of interference with employees' rights." He stated that the above-cited cases require that the outcome of an election be in dispute on the basis of meritorious objections in order to justify an order to bargain. Because the specific objections to the election were overruled, and because the only matter included within the purview of the catchall objection was specifically limited to the nonmeri- torious paragraph 11 allegations, the judge rea- soned that the results of the election stood uncon- tested, that is, no longer in dispute by virtue of meritorious objections. In these circumstances, the judge concluded that no bargaining order could issue here should the revised tally in this "uncon- tested" election indicate that a majority of the em- ployees voted against union representation. The General Counsel contends, however, that the Union's broad catchall objection, in combina- tion with other unfair labor practice findings made in the consolidated unfair labor practice case, pro- vides a basis for setting aside the election. The General Counsel relies on American Safety Equip- ment Corp., 234 NLRB 501 (1978); Dayton Tire & Rubber Co., 234 NLRB 504 (1978); and General Signal Corp., 234 NLRB 914 fn. 1 (1978). As com- panion cases, American Safety and Dayton Tire re- stated and reaffirmed the Board's "longstanding policy which permits a Regional Director to set aside an election based on conduct which he has discovered during his investigation, even though that particular conduct had not been the subject of a specific objection." 16 The rationale behind this policy is that once the Board's investigative proc- esses are set in motion by timely filed objections and the Regional Director discovers, during the course of the investigation, evidence that the elec- tion has in some manner been tainted, he may properly rely on that to set aside the election. This is so whether the objectionable misconduct was al- leged in a party's objection or was uncovered inde- pendently by the Region during its investigation of the disputed election. We find merit in the General Counsel's excep- tions. Because the judge relied solely on Irving Air Chute and Bandag and failed to consider other re- lated cases that temper the application of these 14 149 NLRB 627 (1964), enfd, 350 F 2d 176 (2d mr 1965). 15 225 NLRB 72 (1976) and 228 NLRB 1045 (1977), remanded on other grounds 593 F.2d 765 (5th Ctr. 1978). 16 American Safety, supra at 501, and Dayton Tire, supra at 504. WHITE PLAINS LINCOLN MERCURY 1137 In sum, both of the Board's Bandag decisions fol- lowed the Irving Air Chute requirement that when there has been an election, the Board will not issue a bargaining order based on unfair labor practices in the absence of pending meritorious objections to the election. Bandag II simply acknowledged that objections were not, as previously determined, absent. We continue to adhere to the principle of Irving Air Chute. We find, however, that the cases cited by the General Counsel, and other related cases, have limited the application of the Irving Air Chute principle to situations in which the election can no longer be contested in the companion unfair labor practice proceeding. Section 9 of the Act invests the Board with the authority to oversee the conduct of representation elections. This authority extends to providing safe- guards to ensure that the election process is pro- tected from conduct by either party that may inter- fere with the employees' exercise of free choice. The Board, however, usually does not independ- ently initiate an investigation into the circum- stances surrounding an election and inquire gener- ally into the parties' campaign tactics and conduct. Instead, the Rules and Regulations provide for a postelection objections procedure, in which a party may register with the Regional Director written objections and a supporting statement of reasons why such conduct rendered the results of the elec- tion unreliable." Once the issue of the integrity of the election is thus raised, the Regional Director can then pursue an investigation into the circum- stances of the election. As alluded to above, the scope of the investigation may take one of two courses. The Regional Director may confine his in- vestigation solely to those matters that are specifi- cally set forth in the objections, or he may broaden the investigation to include areas not mentioned in the objections. 19 Either course is permitted, and which course is followed is within the sole discre- tion of the Regional Director.2° The reason for this longstanding policy, as stated by the majority in American Safety in affirmance of it, is to ensure the paramount right of employees to exercise their franchise in a free and informed manner. 21 It is with this overriding policy as a 18 See the Board's Rules and Regulations, Sec 102.69 is See, e.g., I. I Cate Co., 86 NLRB 12 (1949); Carter-Lee Lumber Go, 119 NLRB 1374, 1376 (1958), and cases cited at fn. 6; International Shoe Co., 123 NLRB 682, 684 (1959); Dawson Metal Products, 183 NLRB 191 at 200 (1970). 20 See American Safety Equipment Corp. supra at 501 21 Id. at 502. The majority opinion further noted that this hberal policy is m keeping with the Board's own practice and procedure in other areas—e g., permitting the amendment of complaint to conform with the proof at hearing, or finding unalleged violations when the con- duct has been fully and fairly litigated and is reasonably related to the Continued cases, the judge unduly restricted the scope of his authority to consider evidence of objectionable conduct and, thus, erroneously concluded that the election was no longer in dispute. An examination of the relevant principles is in order. First, as the judge noted. Bandag follows the principle enunciated in Irving Air Chute that in a consolidated unfair labor practice/representation proceeding, the Board will not direct a bargaining order remedy for a respondent-employer's unfair labor practices, even if they occurred during the critical preelection period, unless the election is itself first set aside on the basis of the union's ob- jections. In the Board's first Bandag decision (Bandag 1) a Board majority declined to order the respondent-employer to bargain with the union de- spite the finding of unfair labor practices during the critical period because the charging party Union, which had not received a majority vote in the election withdrew its objections to the conduct of the election. The Board majority stated that by withdrawing its objections, the union indicated that it no longer contested the election results and, therefore, all questions about the election's finality and validity were removed. Consequently, no fur- ther inquiry into the conduct of the election was warranted, and its results stood as final. The Board then concluded that it would not countermand the outcome of a final and uncontested election when the vote is against union representation by order- ing, in a related unfair labor practice proceeding, the respondent-employer to bargain with the same union that the employees rejected.17 In a supplemental decision (Bandag 10, the Board acknowledged a factual error and deter- mined that the union had not abandoned all its pre- viously filed objections, but rather had withdrawn only its specific allegations of particular miscon- duct, leaving on file its general "by these and other acts" or "catch-all" objection for further investiga- tion. The Board then reversed its finding that the election results were uncontested and final, and held, instead, that the unfair labor practices that occurred during the critical election period were encompassed by the still-pending "catch-all" objec- tion and provided a sufficient basis both for setting aside the election and for ordering the respondent to bargain with the union. 11. In discussing Bandag I, the judge erroneously stated that the Board did not distinguish between situations in which the objections have been withdrawn and those in which they have been overruled The Board there did make such a distinction for the purpose of determining whether a party was still contesting the outcome of the election, noting that where objections have been wtthdrawn there is no reason for the Region- al Director to assume that a party is interested in challenging the election any longer. In addition, we note that the judge failed to mention the Board's supplemental decision in Bandag. 1138 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD guide that the Board, both before and after Ameri- can Safety, has approached cases quite similar to the instant one. In Dawson Metal Products, supra, the Board, in imposing a bargaining order to remedy the respondent's unfair labor practices, adopted the judge's recommendation to set aside an election in which he also recommended overruling all the specific objections to the election. The judge found that, although the specific allegations of objectionable conduct could not be sustained, the respondent had violated the Act during the preelection critical period by interrogating employ- ees about their union sentiments, promising benefits in exchange for rejecting the union, and threaten- ing harm to employees for supporting the union. He concluded that this 8(a)(1) conduct was of such a nature as to have interfered with the election. Re- lying on Fashion Fair, 157 NLRB 1645 (1966), enfd. in pertinent part 399 F.2d 764 (6th Cir. 1968) (in which an election was set aside based on an un- lawful discharge that had not been raised in the ob- jections), the judge reasoned that the critical period unfair labor practices had been fully litigated, thereby eliminating any suggestion of prejudice against the respondent-employer, and that they had been disclosed during a proceeding that was de- signed in part to determine the propriety of the election. The essence of Dawson is that when the unlawful conduct is, a fortiori, conduct that interferes with a free choice in an election, it cannot be treated as somehow falling outside the legitimate and appro- priate scope of the investigation of the election process simply because it was not cited in the spe- cific objections to the election. In such circum- stances it is appropriate to find that the employer's misconduct has impinged on the employees' exer- cise of free choice and then set the election aside. Similarly, in Pure Chem Corp., 192 NLRB 681 (1971), a Board majority upheld the judge's recom- mendation to set aside an election based on viola- tions of Section 8(a)(1) rather than on the grounds set forth in the union's objections, as well as his recommendation to issue a remedial bargaining order. Citing Dawson and Gissel,22 the majority stated that "an election may be set aside and a bar- gaining order issued where objections to the elec- tion were found to be without merit, but where the matters contained in the complaint—as well as with the direction of modern pleading generally. See also NLRB v. Font Milling Co, 360 U.S. 301 at 306-309 (1959), dealing with the relationship of the charge and the allegations in the complaint. "Once its jurisdiction is invoked the Board must be left free to make full inquiry under its broad investigatory power in order to properly discharge the duty of protecting public rights which Congress has imposed on it. There can be no justification for confining such an inquiry to the precise particularizations of a charge" Pant Mill- ing, supra at 308 22 NLRB a Gissel Packing Co., 395 U S. 575 (1969). employer had engaged in various unfair labor prac- tices which were discovered during the postelec- tion investigation." 23 The majority directly ad- dressed the Irving Air Chute requirement that no bargaining order may issue if an election is not first set aside on the basis of meritorious objections, de- termining that this prerequisite is satisfied when evidence ultimately discloses that no "valid" elec- tion has taken place (emphasis in original). That is, once an investigation is begun pursuant to timely filed objections, and evidence is uncovered during the course of the investigation that warrants a fmd- ing of election interference—regardless of whether such misconduct was alleged in the objections— that evidence will support setting aside the elec- tion. The critical issues are only that the validity of the election has first been properly challenged through objections—thereby opening the inquiry into the circumstances surrounding it—and that the election's finality is pending at the time the miscon- duct is discovered. Simply stated, a "meritorious objection" is anything that would justify setting aside the election, whether that misconduct was raised by the union in its objections or was discov- ered subsequently by the Agency's own procedures in resolving the questions raised as to the propriety of the election. In either case, the validity of the election has been questioned, its results have not been certified, and evidence exists that establishes that the employer has interfered with the election. When these factors exist, the election may be set aside.24 Although the above-described cases are closest to the circumstances here, they are far from unique examples of the principle we are applying. See, e.g., Monroe Tube Co., 220 NLRB 302, 305 (1975), in which the Board stated that "matters litigated in a complaint case which is consolidated with a rep- resentation case can form a basis for setting aside 23 192 NLRB at 681. Clearly, the Board intended by this language to extend the postelection investigation period through the consolidated pro- ceeding before the judge when the validity of the election is still at issue. 24 This is not inconsistent with the holding in Burns Security Services, 256 NLRB 959 (1981), in which the Board determines that an objecting party cannot demand that a Regional Director consider late-filed supple- mental Objections, unrelated to the original, timely pending objections and not based on evidence previously unavailable to the objecting" party Despite the fact that these supplemental objections were submitted during the Regional Director's investigation and prior to the issuance of his report, the Board concluded that this limitation was essential to discour- age the piecemeal submission of evidence and to prevent investigations into election misconduct from being unduly prolonged In that case the Regional Director did not enlarge the scope of his investigation beyond the original objections, but rather the objecting party attempted to re- quire such an expanded investigation by its repeated efforts to raise addi- tional objections well beyond the prescribed period A party cannot ignore the Board's rules by engaging m an endless parade of allegations and demanding that they be considered This is not the situation present- ed in the instant case, and we reaffirm our adherence to the holding and policy of Burns. WHITE PLAINS LINCOLN MERCURY 1139 the election election even though those 'natters were not raised by the objections"; Foodland, 233 NLRB 708, 715-716 (1977), in which conduct not alleged in the objections was found to be so related to the election as to have had a probable effect on it and the election was set aside; Home Lumber & Supply Co., 237 NLRB 322, 332 (1978), in which the unfair labor practices committed by the employer during the critical period vere, though unalleged as objections, found to have interfered with the conduct of the election; Bacchus Wine Cooperative, 251 NLRB 1552, 1559 (1980), in which unfair labor practices unrelated to the union's objections consti- tuted sufficient basis to warrant setting aside the election; Schwan 's Sales Enterprises, 257 NLRB 1244, 1248 (1981); and Blackstone Co., 258 NLRB 945, 958 (1981). In each of these cases the policy enunciated in American Safety, Dawson, and Pure Chem was expressly followed and reaffirmed_ We do so again today. In this case the judge failed to recognize his au- thority to consider all evidence revealed during the course of the inquiry. Instead, he focused primarily on the narrow language in the notice of hearing, which referred only to the allegations set forth in paragraph 11 of the complaint as potentially objec- tionable. The judge recognized the coerciveness and severity of the critical period misconduct that was not the subject of objections, i.e., implement- ing an unlawfully promised supervisory system in response to the employees' complaints about the supervisor, threatening employees, in a letter dated November 20, with loss of their jobs because of their support for the Union, and denying reinstate- ment to Crisci, the employee who the Respondent believed was responsible for the unionization effort. The judge, however, believed he was constrained from using these unfair labor practices to set aside the election and issue a bargaining order. As set forth above, because the election remained the sub- ject of inquiry on the basis of objections, albeit not alleging the conduct ultimately found to have inter- fered with its conduct, long-established Board law, based on well-grounded policy, compels reversing his conclusion. Accordingly, we find that the above-enumerated violations of Section 8(a)(1) and (3), particularly in light of related prepetition con- duct indicating that these were not isolated inci- dents, are sufficiently serious and of widespread impact to have interfered with the conduct of the November 21 election. 26 Therefore, should the re- vised tally of ballots indicate that the Union has not received a majority of the votes cast, we shall order that the election be set aside. 25 Evans Bros. Barber & Beauty Salons, 256 NLRB 121 (1981). See also American Electro Finishing Co., 212 NLRB 654 (1974) AMENDED CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent has violated Section 8(a)(1) of the Act by: (a) Threatening to close its business should the employees select the Union as their collective-bar- gaining representative. (b) Threatening reprisals against employees who engage in union and other protected activities. (c) Interrogating employees about their own and other employees' activities on behalf of the Union. (d) Promising employees improved working con- ditions in exchange for their abandoning support for the Union. (e) Changing working conditions in exchange for employees renouncing support for the Union. 4. The Respondent has violated Section 8(a)(3) and (1) of the Act by: (a) Discharging Steven Chirico, Martin Wee- maels, James Harvey, Robert Hopgood, and Clem- ent Crisci because of their union activities. (b) Failing to reinstate Clement Crisci because of his activities in support of the Union. 5. The unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 6. The following unit is a unit appropriate for collective bargaining within the meaning of Section 9(c) of the Act. All full-time and regular part-time service employees including the parts department em- ployees employed by the Employer at its facil- ity located at 25 West Post Road, White Plains, New York; excluding: all other em- ployees, new and used car salesman, guards and supervisors as defined in the Act. 7. The Respondent did not engage in any unfair labor practices other than those found above. AMENDED REMEDY Because of the nature, extent, and severity of the Respondent's unlawful conduct in response to its employees' organizational activities, should the re- vised tally of ballots result in no majority for the Union, we shall not direct that a second election be conducted, but instead shall dismiss the petition and require that the Respondent recognize and bar- gain with the Union. 26 As the judge notes, the Re- 26 In the event the revised tally of ballots shows that the Union won the election, the Union is entitled to both a bargaining order and a certifi- Continued 1 140 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD spondent's unlawful discharge of five employees (over one-third of the unit), in immediate retalia- tion against their card signing, is among the "less remediable" of unfair labor practices. Loss of em- ployment, frequently referred to as the "capital punishment" of the workplace, has long been rec- ognized as the type of action that will have a long- lasting coercive impact on the work force and demonstrate most sharply the power of the em- ployer over the employees. 27 Given the small size of the Respondent's operation and the swift and massive layoffs of most of the employees who had signed cards supporting the Union, the Respond- ent's actions have a pervasive and lasting impact. The Respondent did not stop with the dis- charges, however, but reemphasized its antiunion stance in discussions with the discharged employ- ees in which various threats, including threats to close the business, were repeated on several occa- sions. Threats to eliminate the employees' source of livelihood have a devastating and lingering effect on employees, an effect that most effectively can be remedied by an order to bargain. See, e.g., Milgo Industrial, 203 NLRB 1196, 1200-1201 (1973), affd. mem. 497 F.2d 919 (2d Cir. 1974); Midland-Ross Corp. v. NLRB, 617 F.2d 977, 987 (3d Cir. 1980); Chromalloy Mining & Minerals v. NLRB, 620 F.2d 1120, 1130 (5th Cir. 1980). The discharges, the refusal to reinstate the per- ceived principal union adherent (Crisci), and the repeated threats to close the business completely, coupled with more vague threats of reprisals against employees, interrogation of employees, promises to improve working conditions, and the actual, albeit temporary, implementation of a modi- fied supervisory structure present sufficiently egre- gious misconduct to warrant reliance on a showing of majority support for the Union by authorization cards rather than by a second election. 28 In a case involving unfair labor practices of this extent and nature, a traditional cease-and-desist order and the scheduling of another election will neither erase the lingering coercive effects nor act as an ade- quate deterrent against future interference with em- ployee rights. NLRB v. Gissel Packing Co., 395 U.S. 575 (1969). See also Marion Center Supply, 277 NLRB 262 (1985); Dayton Auto Electric, 278 NLRB 551 (1986); Groves Truck & Trailer, supra. cation of representative. Regency Manor Nursing Home, 275 NLRB 1261 fn. 5 (1985) 27 See, e.g , Groves Truck & Trailer, 281 NLRB 1194 (1986); Doug Hartley, Inc., 255 NLRB 800, 801 (1981) 28 Majority support for the Union is established by signed authoriza- tion cards dated September 25 from 8 of the approximately 14 unit em- ployees A ninth card, dated September 26, is also in evidence. The first unfair labor practices occurred after the Union established majority sup- port. Accordingly, we should date the Respondent's bargaining obliga- tion from its October 2 commencement of unfair labor practices. We are mindful that the events of this case oc- curred in 1980. In light of the serious nature of the Respondent's misconduct, however, the swiftness and severity of the retaliation, and the repetition of certain threats, we are satisfied that the passage of time has not eradicated their effect. Although delay of this type is regrettable, it is not alone an ade- quate basis on which to deny a bargaining order otherwise warranted.29 Therefore, in addition to the remedies recom- mended by the judge, we shall order the Respond- ent to bargain with the Union, on request. The Respondent also shall expunge from its per- sonnel files and other records all references to the discharges and layoffs found to be discriminatory and notify each of the employees involved that this has been done and that evidence of the unlawful acts will not be used for future personnel actions against them. In addition to posting a notice to employees, the Respondent is also subject to a broad cease-and- desist order in view of the serious nature of its vio- lations. Hickmott Foods, 242 NLRB 1357 (1979). Finally, in accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on backpay on and after January 1, 1987, shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U.S.C. § 6621. Interest on amounts accrued prior to January 1, 1987 (the ef- fective date of the 1986 amendment to 26 U.S.C. § 6621), shall be computed in accordance with Florida Steel Corp., 231 NLRB 651 (1977). ORDER The National Labor Relations Board orders that the Respondent, White Plains Lincoln Mercury, Inc., White Plains, New York, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discharging, refusing to reinstate, or other- wise discriminating against employees because of their union activities. (b) Threatening to close its business should the employees select the Union as their collective-bar- gaining representative. (c) Threatening reprisals against employees who engage in union activity and other protected activi- ty. (d) Interrogating employees about their own or other employees' activities on behalf of the Union. 29 See NLRB v. Katz, 369 U.S. 736, 748 at fn 16 (1962); Groves Truck & Trailer, supra, Dayton Auto Electric, supra, Quality Aluminum Products, 278 NLRB 338, 340 (1986); Exchange Bank, 264 NLRB 822, 824 at fn 13 (1982). WHITE PLAINS LINCOLN MERCURY 1141 1 (e) Promising employees that it will improve their working conditions in exchange for their abandoning support for the Union. (f) Implementing changes in working conditions in exchange for employees renouncing their sup- port for the Union. (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. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Offer Clement Crisci immediate and full rein- statement to his former job or, if that job no longer exists, to a substantially equivalent position, with- out prejudice to his seniority or any other rights or privileges previously enjoyed, and make him whole for any loss of earnings and other benefits suffered as a result of the discrimination against him, in the manner set forth in the section of this decision enti- tled "Amended Remedy." (b) Make whole Steven Chirico, Martin Wee- maels, James Harvey, and Robert Hopgood for any loss of earnings and other benefits resulting from their discharge and the delay in their reinstatement in the manner set forth in the section of this deci- sion entitled "Amended Remedy." (c) Remove from the files of the employees re- ferred to in paragraphs 2(a) and (b) above all refer- ences to the discrimination practiced against them as found in this decision and notify each of them in writing that this has been done and that evidence of its unlawful acts will not be used as a basis for future personnel action against them. (d) Recognize and, on request, bargain with Local 259, United Automobile Workers, Interna- tional Union of United Automobile, Aerospace and Agricultural Implement Workers of America as the exclusive representative of the employees in the ap- propriate unit set forth below, regarding rates of pay, wages, hours, and other terms and conditions of employment and, if an agreement is reached, embody that agreement in a written, signed docu- ment: All full-time and regular part-time service employees including the parts department em- ployees employed by the Employer at its facil- ity located at 25 West Post Road, White Plains, New York; excluding: all other em- ployees, new and used car salesm[e]n, guards and supervisors as defined in the Act. (e) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (I) Post at its office and in its shop copies of the attached notice marked "Appendix."3° Copies of the notice, on forms provided by the Regional Di- rector for Region 2, after being signed by an offi- cial representative of the Respondent, shall be posted by the Respondent immediately upon re- ceipt, in conspicuous places, including all places where notices to employees 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. (g) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. IT IS FURTHER ORDERED that the consolidated complaint is dismissed with respect to allegations not specifically found to violate the Act. IT IS FURTHER ORDERED that Case 2-RC-18845 is remanded to the Regional Director with a direc- tion to open and count the ballots of Clement Crisci and Jack Carella and to prepare and serve on the parties a revised tally of ballots. If the re- vised tally shows that a majority of the ballots favor representation by the Union, a certification of representative shall issue. If the final tally does not result in a majority for the Union, the election of November 21, 1980, will be set aside based on the unfair labor practices found, the petition dismissed, and the bargaining order, paragraph 2(d) above, alone shall take effect. s° If this Order is enforced by a judgment of a United States court of appeals, the words m 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." 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 discharge or otherwise discrimi- nate against employees because of their union ac- tivities. WE WILL NOT refuse to reinstate employees be- cause of their union activities. WE WILL NOT threaten to close our business if employees select Local 259, United Automobile 1142 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Workers, International Union of United Automo- bile, Aerospace and Agricultural Implement Work- ers of America as their collective-bargaining repre- sentative. WE WILL NOT threaten reprisals against employ- ees who engage in union activity. WE WILL NOT interrogate employees about their or other employees' union or other protected ac- tivities. WE WILL NOT promise that we will improve em- ployees' working conditions in exchange for their abandoning support for the Union. WE WILL NOT implement improvements in em- ployees' working conditions in exchange for em- ployees' abandoning support for the Union. 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 pay backpay, with interest, to Steven Chirico, Martin Weemaels, James Harvey, and Robert Hopgood. WE WILL offer full reinstatement to Clement Crisci and pay him backpay, with interest. - WE WILL notify each of the employees unlawful- ly discharged or laid off on October 2, 1980, that we have removed from our files any reference to their discharge or layoff and that the discharge or layoff will not be used against them in any way. WE WILL recognize and, on request, bargain with the Union and put in writing and sign any agreement reached on terms and conditions of em- ployment for our employees in the bargaining unit: All full-time and regular part-time service em- ployees including the parts department em- ployees employed by the Employer at its facil- ity located at 25 West Post Road, White Plains, New York; excluding: all other em- ployees, new and used car salesmen, guards and supervisors as defined in the Act. WHITE PLAINS LINCOLN MERCURY, INC. Waldemar A. Comas, Esq., for the General Counsel. Gerald Schilian, Esq., of New York, New York, for the Respondent. DECISION STATEMENT OF THE CASE HAROLD B. LAWRENCE, Administrative Law Judge. This case was tried before me on October 13, 14, 15, 16, and 22, 1981, at New York City. The charge was filed on October 28, 1980, by Local 259, United Automobile Workers, International Union of United Automobile, Aerospace and Agricultural Implement Workers of America. On December 24, 1980, a complaint and notice of hearing was issued alleging violations of Section 8(a)(1) and (3) of the National Labor Relations Act (the Act) by the Respondent, White Plains Lincoln Mercury, Inc. In the complaint, as amended on February 18, 1981, the Respondent is charged with having violated the rights of employees under Section 7 of the Act by inter- rogating employees regarding their union membership, activities, and sympathies; creating an impression among employees that their union activities were under surveil- lance;' threatening to close the business if the Union won an election scheduled for November 21, 1980, on a petition filed October 8, 1980; threatening reprisals in the event of union activity by the employees; promising im- proved terms and conditions of employment if the em- ployees abandoned their support of the Union; urging circulation of a petition among employees withdrawing support for Local 259; and discharging, and subsequently refusing to reinstate, five employees for concerted activi- ties and union support. Four of the employees (Steven Chirico, Martin Weemaels, James Harvey, and Robert Hopgood) were subsequently rehired; the complaint therefore alleges refusal of their reinstatement only for the period from October 2 to 11. Clement Crisci, the fifth employee, has never been offered reinstatement. The unfair labor practices are alleged to be serious enough to warrant entry of a bargaining order. The Respondent moved to dismiss the complaint in its entirety, or in the alternative, paragraphs 8, 9(a)-(b), 10, and 11(a)-(b) of the complaint, on the ground that the al- legations of the complaint and of the paragraphs specifi- cally mentioned exceed the allegations of the underlying charge. It is well settled that the allegations of the com- plaint must be substantively related to the charge or to the transaction regarding which the charge is made, and that the Board has considerable leeway to base a com- plaint on events other than those specifically set forth in the charge, provided it does not depart from the charge to such an extent that it may be said to be initiating the proceeding on its own motion. 2 In the present case, the charge deals with the discriminatory discharge of five employees for union activity and refusal to rehire them, although the complaint alleges these violations as well as the violations summarized above. All the events alleged are interrelated with the employees' discharges in point of time and in that they are alleged to have been part of an antiunion atmosphere deliberately fostered by the Re- spondent and reflective of the Respondent's animus against the Union. Accordingly, the motion to dismiss on that ground was, and is, in all respects denied. The Respondent also moved to dismiss the demand contained in the complaint for a bargaining order. That motion is in effect granted by reason of the findings, which I make below, and my recommendation that Ob- jection 3 be overruled. 1 The allegation respecting surveillance was added to the complaint on motion of the General Counsel granted over Respondent's objection at the commencement of the hearing. 2 Texas Industries v. NLRB, 336 F.2d 128 (5th Cir. 1964), enfg. in part and remanding in part 139 NLRB 365 (1962) In the present case, Re- spondent's counsel conceded lack of prejudice to the Respondent in his concession that his objection was purely technical. The court noted the lack of prejudice in Texas Industries, 336 F.2d at 132. WHITE PLAINS LINCOLN MERCURY 1143 Of the objections to the results of the election that were filed on November 25, 1980, only the general ob- jection, Objection 3, is before me for determination. By a notice of hearing on objections and challenges and order consolidating cases, dated April 23, 1981, I am required to pass on the validity of the challenge to the ballot of Clement Crisci and on the general objection filed by Local 259. The validity of Crisci's ballot de- pends solely on whether I find he was discharged for union activity and entitled to reinstatement. Regarding the general objection, the terms of the Order limit review to the extent that the issues raised are coincident with the issues raised in paragraph 11 of the complaint, which alleges unlawful interrogation of employees by Cary Frankel on October 8, 1980, and that he, on that date, encouraged circulation among the employees of a petition withdrawing employee support for Local 259. The Respondent's answer and amended answer deny all allegations of wrongdoing and statutory violation. The parties were afforded full opportunity to be heard; to call, examine, and cross-examine witnesses; and to in- troduce relevant evidence. Posthearing briefs have been filed by, or on behalf of, the General Counsel and the Respondent. On the entire record, and based on my observation of the witnesses and the consideration of the briefs submit- ted, I make the following FINDINGS OF FACT I. JURISDICTION The complaint and amended complaint allege, the Re- spondent's answer and amended answer admit, and I find, that the Respondent, which is in the business of retail sales and service of automobiles and related prod- ucts in White Plains, New York, had gross revenues in excess of $500,000 during the 12-month period ending September 30, 1980, and received, in the course of its business operations, products, goods, and materials from suppliers outside the State of New York of a value in excess of $10,000 and at all pertinent times has been en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. It is alleged, admitted, and I find that Local 259 at all material times has been and is a labor organization within the meaning of Section 2(5) of the Act. II. APPROPRIATE UNIT It is alleged, Respondent admits, and I find that the following employees of Respondent constitute a unit ap- propriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All full-time and regular part-time service employ- ees, including parts department employees, em- ployed by Respondent at its facility, excluding all other employees, office clerical employees, guards, and supervisors as defined in the Act. As of September 25, 1980, there were 13 employees in the unit. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background3 Cary Frankel, the president of White Plains Lincoln Mercury, had prior experience as Manager of a Lincoln Mercury dealership. At the invitation of the Ford Motor Company, he opened the Respondent dealership in 1979, stiperseding a defunct dealership known as "Manor Lin- coln Mercury." The new dealership accepted as stock and assumed liability for payment for a number of expen- sively equipped and highly unsalable vehicles from the Manor inventory. The Respondent thus commenced business with a large indebtedness and has shown a net loss on its books since the beginning of its operations, de- spite periods of profitability. The monthly profit-and-loss statements are mostly in the black, including those for all months during the critical period involved in this case (August through December 1980). The service department was headed by an experienced manager named Joe Rossi, whose function was to deal with the customers and generally supervise the entire de- partment. There was an assistant manager, Pat Graven- ese, an order writer, Jack Carella, and a parts manager, Charles Bucchione. Vehicles were serviced by class "A" technicians, capable of performing any necessary work on an automobile, and class "B" technicians, who were similarly capable but who generally did not perform cer- tain specialized operations. In addition, the department employed polishers and cleanup men, a parts department counterman, a parts department driver, and a used-car lot man. In September 1980, there were four class "A" mechanics (Clement Crisci, Walter Prink, Donald Smith- son, and Martin Weemaels) and one class "B" mechanic (Steven Chirico). There was also one trainee (Sidney Thornton). The class "A" and class "B" mechanics were compen- sated under an incentive system that guaranteed them a certain weekly amount for 40 hours of "book time" and paid incentive pay for all time worked in excess of 40 hours as so calculated. Various manuals (Ford, Chilton Motors) allotted specific amounts of time for completion of various work operations, and technicians performing such operations were credited with that much time re- gardless of time actually expended in performing the work. During the months of July, August, and Septem- ber 1980, no mechanic worked more than 40 hours by the clock in any week, but the shop was busy enough to enable technicians such as Weemaels to draw incentive pay almost every week (and to complain that there was more work that he could do that was not being assigned to him) and Rossi and the parts manager drew bonuses based on monthly volume. At all times, the department operated at a profit. The work of the department consisted of preparing new vehicles for delivery to customers; repair and refur- bishing of used vehicles that had been acquired for resale; service on vehicles of all makes brought in for 'The facts of the case as set forth are a narrative composite of admis- sions contained in the answer of the Respondent, the undisputed and credited testimony, and information contained in the exhibits. 1144 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD service by customers; and service on vehicles still cov- ered by Ford Motor Company warranty. The warranty work accounted for a substantial part of the department's business, billable to Ford at the rate of $29 per hour. Ford's local representatives monitored the warranty work and investigated cases in which dealerships billed Ford dollar amounts in excess of the national monthly norm. Respondent's performance of and billing for war- ranty work was under investigation for a number of months prior to the events involved in this proceeding and certain warranty work was already subject to prior approval by the Ford representative. Frankel was thoroughly familiar with industry practice regarding warranty problems. He was aware that the manufacturers imposed chargebacks on dealerships that billed excessively for warranty work if they failed to adopt recommended corrective procedures. In September 1980, a month in which Respondent ex- ceeded the national norm for warranty billing by 54.3 percent, the local Ford representative conferred with Frankel and Rossi and indicated a number of ways in which warranty service was being improperly per- formed, with resultant excessive billing to Ford. Some minor restrictions were imposed limiting the service de- partment's discretion respecting repair methods, and prior approval was required to be obtained for certain work for which it had not previously been required. About 8 a.m. on October 6, 1980, before work started, Rossi called Steven Chirico, Martin Weemaels, Clement Crisci, James Harvey, and Robert Hopgood into his office and advised them that, because business was slow, they were being laid off. Sidney Thornton, who had been hired as a polisher on September 29, was dis- charged on October 7. No employee had ever been told by Rossi or by any member of management, prior to Oc- tober 2, that business was slow, and none of them were under the impression, from their own personal observa- tions, that the pace of work in the shop had slackened. All the discharged employees had signed union author- ization cards. The cards had been obtained by Chirico from the shop steward of a nearby Oldsmobile dealership and he had distributed them in the shop secretly. Chirico identified eight of the signed cards at the hearing. The cards, signed by the discriminatees involved in this pro- ceeding, were dated September 25, 1980, and Chirico tes- tified that he submitted them to the Union on that day. Thornton had signed a card on October 1. As of the time of the layoffs early in the morning of October 2, however, the Union had not yet contacted the Respondent. Joe .Lewis, the business representative, made his first contact with the Respondent after the dis- missals. The discharged employees spent the morning lounging about in a diner across the street and Lewis met them there. After being apprised of what had oc- curred, he went across the street and had a brief confer- ence with Frankel and then left. Frankel entered the diner about 11:30 a.m. and, when he saw Crisci, Chirico, and Weernaels sitting at a table, joined them. He was in a highly agitated state, though the basis for his agitation is a subject of dispute that is discussed below. Frankel testi- fied that he was upset about the financial condition of the Company and the necessity for discharging the men, whom he had known for a long time, but statements made by him at the time are susceptible of the interpreta- tion that he was shocked by the discovery of union ac- tivity in the shop. In any event, whatever the true basis of his emotional reaction, he expressed deeply wounded feelings to the men and they in turn explained to him their reasons for going to the Union. Frankel suggested that they get to- gether that very evening for a dinner meeting. Later, on the advice of an attorney, he canceled the meeting. About 4:30 p.m. he placed a telephone call to Weemaels to advise him of the cancellation of the meeting. Buc- chione actually placed the call for him Crisci, unaware of the cancellation, showed up at the showroom at 6 p.m. and had a conversation with Frankel. During the week following the layoffs, Frankel con- ferred with Crisci, Weemaels, and Chirico about a plan of reorganization for the service department. He met with them at the Eastchester Diner on October 5, 1980. He had a conversation with Chirico on October 7, 1980. By October 9, 1980, messages were being sent to some of the men to return to work, and by October 13 all of them, with the exception of Crisci, were actually back at work. The plan of reorganization was put into effect, but was allowed to lapse into disuse within 3 weeks. Ford ultimately imposed a chargeback that Frankel ne- gotiated down from about $1000 to the sum of $125. There is a history of difficulty between Crisci and Rossi. On September 9, Crisci injured a finger and left work to obtain emergency treatment at a hospital. Treat- ment included three sutures. The hand was swollen. Rossi telephoned him on September 10 to find out if he was coming in to work because he had left a job incom- plete. Crisci assumed he understood that he would be out about 1 or 2 days. Crisci reported back to work on Sep- tember 11, resentful at what he felt to be unjustifiable pressure by Rossi to return to work prematurely. On September 16, Crisci took the afternoon off to have the stitches removed. He and Rossi subsequently argued over whether Crisci had given notice he intended to absent himself from work and over Rossi's reaction to his actual absence. On September 19, in a heated ex- change with Rossi, Crisci threatened to seek employment elsewhere. B. Status of Local 259 No effective challenge to the authorization cards was mounted by Respondent and there is no evidence in the record that would suggest that they were executed at any other times than the dates and signatures thereon would suggest. I therefore find that as of September 25, 1980, a majority of the employees of the Respondent in the unit described above had designated Local 259 as their collective-bargaining representative, and that it was their exclusive representative for such purposes. On Oc- tober 8, 1980, Local 259 filed a petition seeking an elec- tion among employees employed by Respondent in its service department. WHITE PLAINS LINCOLN MERCURY 1145 C. Interrogation of Employees Unlawful interrogation is claimed to have been com- mitted by Rossi when he interviewed Chirico for em- ployment on June 19, 1980, and by Frankel when he conferred with Chirico on October 8, 1980. Objection 3 is based on Frankel' s alleged interrogation and on his al- leged attempt, at the same time, to get Chirico to circu- late a petition repudiating the Union. According to Chirico, he was interviewed for his job by Rossi and Gravenese, who made inquiry respecting his union involvement and told him they were looking to keep the Union out of the shop. On October 7, according to Chirico, he had a conversation with Frankel in which he urged Frankel to reinstate W'eemaels, and Frankel in- quired respecting the extent of union activity and urged circulation of a petition for withdrawal of the authoriza- tion cards executed by the employees. The date is signifi- cant because the petition for an election was not filed until October 8. Because Objection 3 is based in part on the allegation of this violation of the Act, Chirico was specifically questioned about the date when he had the conversation with Frankel. He expressly fixed the date as October 7. Therefore, this alleged violation is not available as a basis for objection to the results of the election. Rossi, Gravenese, and Frankel all denied interrogation of Chirico respecting union activities and denied making any statements about keeping the Union out of the shop. Frankel and Rossi conceded that the question of union involvement normally arose during employment inter- views and that applicants would be told that White Plains Lincoln Mercury was a nonunion shop because that was a fact significant to many applicants who were union members or had worked in union shops. It also normally came up in discussions of pay and benefits. I fmd the testimony of Rossi and Frankel altogether credible in this regard. The burden is on the General Counsel to establish violations by a preponderance of the credible evidence. A fmding of unlawful interrogation cannot be based, as the General Counsel suggests in his brief, 4 on my or anybody else's conception of "the inher- ent probabilities . . . when viewed under the subsequent unfair labor practices . . ." The commission of an unfair labor practice cannot be inferred from the subse- quent commission of another unfair labor practice. Each has to be proved. On the other hand, because of his hesitant and some- times confused manner of testifying, and because of sev- eral outright contradictions between his testimony on direct and cross-examination, I cannot credit Chirico's testimony in most cases in which it is not corroborated in some fashion by other evidence. I have made an ex- ception in situations in which Respondent's rebuttal was itself inherently implausible, contradictory, or unpersua- sive for some other reason, as in the case of the explana- tions offered for the failure to recall Clement Crisci, dis- cussed below. Accordingly, I must find that unlawful interrogation has not been established. 4 G C. Br. 16 D. Urging Circulation of Petition Among Employees for Withdrawal of Union Support Frankel conceded during the course of his testimony that he made some kind of suggestion to Chirico relating to a petition to withdraw the authorization cards filed with the Union and that he suggested that Chirico con- sult with a labor lawyer. He insisted, however, that he did so in response to an inquiry initiated by Chirico, who told him that the men were actually not particularly en- thusiastic about the Union, that the Union was not pri- mary with them, and that he wondered "is there any- thing we can do about the union." The General Counsel urges that Frankel, in his testimony, thus admitted the charge that he had urged circulation of a petition to get the cards back. I do not believe that the testimony really amounts to an admission: Again, I was steering the conversation to the fact it was not the union. He wanted to know what to do. He asked me a question. I said I don't know. I said I assume that everybody already signed the cards. He said yes. I said I suppose that you can petition to get the cards back, and I said I don't know, but if you want, I will give you the telephone number of a labor attorney and you can talk to him and ask him what you can do and what you can't do. That's the—it was at that point where the peti- tion came up, the question about the cards, and it was brought up by Steve Chirico at that point as what can we do. And it was dropped at that point. And the rest of the conversation was basically about getting back to work and he wanted his job back and he wanted Clem Crisci's job back, and Marty Weemaels. Frankel's testimony is not implausible when considered in the light of the testimony of Crisci, Weemaels, and Chirico that, during their conversation with Frankel at the Oasis Diner, they explained their reasons for going to the Union, which basically boiled down to inability to draw Frankel's attention to their problems and Crisci's conviction that he was being harassed by Rossi. Frankel had, elsewhere in his testimony, mentioned that all the men involved in this situation had been known to him for a fairly considerable period of time, giving rise to a personal relationship, in addition to the normal employ- ment relationship, and the testimony of Weemaels, Chir- ico, and Crisci about going to the Union at some points seemed to reflect that fact by their defensive, almost apologetic, tone. Moreover, at the time in question, they were all trying to convince Frankel to take them back and they would reasonably be expected to explore all paths that might lead to that result. Furthermore, it is not inconceivable that Chirico raised the question for the very reason that he and the other discharged employees believed that Frankel had fired them because of their union activity, and that they wanted to demonstrate their willingness to abandon the Union. Frankel then obliged them by suggesting the cir- culation of a petition and consultation with an attorney. 1146 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD They were showing him that they had got the message. In this view of events, the absence of coercive overtones in the conversation would not be significant, because the events that formed the background to it were sufficiently coercive by themselves. As I read the testimony, however, all that has been proved is the inquiry by Chirico and Frankel's response to it. All the related evidence actually negates the allega- tion. Chirico appears to have been of an extremely inde- pendent frame of mind, actually refusing to commit him- self to any particular date for return to work. Moreover, the evidence indicates that no similar suggestion was made by Frankel to anyone else or repeated to Chirico. Notwithstanding Chirico's refusal to circulate such a pe- tition, he was rehired. Messages to the other men to return to work went out the next day. (The General Counsel's contention that the suggestion was made on October 8 would mean that the messages went out the very day of the refusal.) Under the circumstances, I must find that the charge that Frankel urged the circulation of a petition among the employees to withdraw their support from the Union is not proved. As noted above, the date of the conversation is fixed by Chirico as October 7. Even if the allegation had been proved, therefore, it could not serve as a basis for Objec- tion 3. E. Creating an Impression of Surveillance Chirico testified, and Gravenese denied, that on Sep- tember 30, 1980, Gravenese told Chirico that union cards had been signed, having been obtained from a neighbor- ing dealership, and he asked Chirico if Chirico knew anything about it. Chirico denied any knowledge of such events. In order for Respondent to be held liable for creating an impression of surveillance, the Respondent's repre- sentative must be found to have used words that convey an impression that the speaker possesses positive knowl- edge of the subject matter of the conversation 5 and must clearly create the impression that a surveillance has been mounted. 6 There is insufficient evidence in this case to impose such liability. Even if Chirico's uncorroborated testimony respecting Gravenese's inquiry were accepted, which is something I could do only with the utmost dif- ficulty, the circumstances so proven are nevertheless such that an impression of surveillance could not reason- ably be inferred. The question propounded to Chirico was a straight inquiry utterly bereft of any sinister impli- cations, and it was being put to the very person who ob- tained the cards. The inquiry therefore made it obvious to Chirico that Gravenese did not have all the facts and was not operating on the basis of firsthand information. The whole situation thus negates, rather than suggests, surveillance. In fact, Chirico does not appear to have been at all nervous about flatly disclaiming any knowl- edge of the matter. F. Threats to Close the Business; Threats of Reprisal Various statements made by Frankel indicate animus against the Union. These escalated to threats to close the business altogether if the Union came into the shop and to threats to the employees. Weemaels testified that on October 2, about 4:30 p.m., when Frankel telephoned him to call off the dinner meeting that had been tentatively scheduled for that evening, Frankel expressed disappointment that Wee- maels had joined the Union and referred to the business and his stake in it as being his "lifeblood." Weenaels quotes Frankel as follows: Mr. Frankel explained to me that his busmess was of the greatest importance to him As important as his life-blood. And realizing that we was—I was trying to join the union was something that would hurt him very much, and he would fight it with all his might not to have the—this thing go through. • . . He would fight it with all his might not to have the union business go through. There was mention of this word "lifeblood" once at a diner and once at the conversation on the phone. Mr. Frankel said that his business is as important to him as his lifeblood, and during the hearing we would be trying to take away that business. And he would be very disappointed if I pursued this matter. And then he said the Union would not be the answer to a problem. And that was the extent of what I can recall. Mr. Frankel told me that it took him many years to build the business the way it is today, and the Union would take it away from him. And it would take him as many years to get even with anybody taking that business away from him than it did for him to build it up.7 Crisci saw Frankel about 6 p.m. on that same day and quotes Frankel as having said that he had known about the Union the night before and he would close the busi- ness before he would let the Union in, and continuing as follows: It would take me 30 years to pay for this busi- ness, and if the union comes in it would take me an- other 30 years to pay back. And if the union came in I would make it my lifetime job to get rid of ev- eryone that had something to do with it. Frankel conceded during the course of his own testi- mony that he might have said that he would close the business, but the sense of his remark was merely to point out the economic realities of his situation: I'm trying to remember the conversation, because I really didn't remember it being all this long. Let me think a second. 5 Maxwell's Plum, 256 NLRB 211 (1981). 6 Clements Wire & Mfg Co., 257 NLRB 206 (1981). 7 Tr 364-365, 529-530. WHITE PLAINS LINCOLN MERCURY 1147 I might have said something along the lines, at the time—because again, it was still a very upsetting time, that I might not be able to afford a union from a dollar standpoint, that I was already at the point of losing money on a regular basis as it was, and to increase my expenses at this point. . . . I find, however, that Frankel did not confine such ut- terances to stressful occasions such as the firings on Oc- tober 2. Some 7 weeks later, immediately prior to the election, he repeated the threats in aggravated - form under circumstances that compel the inference that they were made after careful deliberation. On November 13 and 20, 1980, Frankel mailed letters to the employees urging them to vote against the Union. These letters contain explicit threats to the employees' job security. The letter of November 13 contains the fol- lowing statement: You know the financial condition of our industry. If the union insists on excessive or irresponsible de- mands, we may be forced to lay people off or we may be forced into bankruptcy. On November 20, 1980, Frankel's letter stated: The union claims they will give you "job securi- ty." Again UNTRUE. The union does not employ you; we do. If we are economically unable to pay and we have to lay people off, the union cannot prevent it. If we have to go out of business, the Union can not prevent that either. In their recent letter, Local 259 listed some shops that they have contracts with. They failed to tell you about the automobile dealerships that have gone out of busi- ness recently. Following is a partial list of dealers in our area that have closed recently. All of the em- ployees of these dealers were thrown out of work when their employer went out of business: [There follows a list of the names of 19 dealer- ships, including 7 Lincoln Mercury dealerships.] We do not want to be forced out of business. We want to be able to continue to provide you with jobs. . . . But we need the flexibility to operate com- petitively. The union will try to take that flexibility away. Aside from the cost to you. . . it could cost you your job. it could cost you your job. TOMORROW WHEN YOU VOTE THINK OF. . . HOW MUCH YOU COULD LOSE. The clear and unambiguous threats contained in these letters threaten the employees with the loss of their jobs on the basis of assumptions not connected in the letters with any verifiable facts or reasonable prognoses, declare job loss to be the inevitable consequence of voting for the Union, and make reference to undercutting by non- union competitors (flexibility) and bankruptcies of union- ized competitors. if Frankel made statements of this nature in writing, which inevitably required some degree of deliberation, it is not hard to believe he would have made the oral statements attributed to him by Weemaels and Crisci, which reflect the same beliefs and 'were made at a time that Frankel himself characterized as "upset- ting." 8 I, therefore, find that Frankel threatened to close the business if the Union won the election and threatened unspecified reprisals against the union activists. G. Promises Respecting Conditions of Employment It is alleged that the Respondent promised improved working conditions in exchange for the employees' aban- donment of the Union. The promised improvement is al- leged to have consisted of alteration in the plan of super- vision, as set forth in an elaborate plan for the division of the mechanics into two teams, one under Gravenese, the assistant service manager, and the other under Jack Car- ella, the order writer. Chirico testified that, when he went to pick up his paycheck on October 3, he told Frankel that the men wanted to get back to work, and Frankel responded by saying that he had a plan for the shop, but it would only work if there was no union. Whether Frankel actually said it, there ensued a number of conferences about the plan between him and the discharged mechanics. The proposed plan was clearly not a promise of im- proved working conditions, nor, as the General Counsel contends, was it a response to the dissatisfaction ex- pressed to Frankel by the employees when he joined them at the diner on the morning of October 2. Frankel advanced a number of reasons for such a plan that could have constituted legitimate business reasons for institut- ing it, but I do not believe that any of them were the real reason he discussed the plan with the men whom he had just fired. More importantly, if the plan changed anything, it did so only insofar as it imposed more oner- ous requirements on the mechanics to examine vehicles they were servicing in a hunt for additional profitable work that might be performed. The plan subjected them to increased (and more searchingly critical) supervision. 8 None of the oral remarks allegedly made by Frankel are mentioned in affidavits furnished by Weemaels to the investigators on October 9 and November 5, 1980 (R. Exhs. 2a and b). His failure to recite these impor- tant facts m affidavits, made at a point in time much closer to the events, need not inevitably detract from the weight to be accorded his testunony respecting them, especially since the remarks, quoted as having been made by Frankel, appear to have been in character, judging by subse- quent written statements that Frankel made. Weemaels' demeanor, the consistency of his testimony both internally and with other evidence, and the plausibility of his explanation for the omission are factors that I have considered, together with the lack of evidence respecting the thorough- ness of the mvestigation and the care with which the affidavits were pre- pared. Because the contents of affidavits normally consist of the re- sponses to the questions put to the affiant, it is seldom clear how much of the contents derive from information volunteered by the affiant and how much has been omitted because pertinent questions were not propounded. In the present case, neither affidavit contams any statement indicating that the affidavits purport to be complete and exhaustive statements of the facts known to the affiant respecting their subject matter. Weemaels' explanation, that he volunteered no mformation because he was anxious to get back to work, is in character with his testimony that he com- plained to Rossi about not being assigned enough work to keep him busy. I found Weemaels to be a candid and honest witness and do not regard the omissions in the affidavits as reflecting any lack of veracity or candor in his testimony 1148 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD In my view of the case, the proposed plan was put forth as a smokescreen in the event of legal complica- tions under the Act and as a format for keeping discus- sions going with the men until Frankel was sure that they had all learned their lesson and understood that he would not tolerate the Union. My reasons for thinking so are set forth below (see discussion entitled "The Rapid Rehiring"). H. Discharge of Employees and Refusal to Reinstate The General Counsel established a prima facie case of discharge because of employees' involvement in a pro- tected activity. The evidence establishes that Chirico ob- tained authorization cards from the shop steward at a nearby Oldsmobile dealership and distributed them to the employees; that eight cards were executed by September 25 (by Chirico, Weemaels, Crisci, Hopgood, and Harvey, the discriminatees, among others); a ninth card was exe- cuted subsequently; that the union activity was known to management prior to the dismissals; and that there was animus toward the Union. Insofar as the prima facie case is concerned, the evi- dence of the pertinent occurrences is beyond dispute except regarding the question of management's knowl- edge of union activity. It is uncontroverted that the Union did not contact the Respondent until approximate- ly an hour after Rossi had discharged Chirico, Wee- maels, Crisci, Harvey, and Hopgood. Frankel and Rossi insisted that the arrival of the union representative at the premises shortly after the dismissals was unexpected and was a shocking surprise. Chirico testified that the distri- bution of the authorization cards had been surreptitious, and that when Gravenese had questioned him on Sep- tember 30 he had denied any knowledge of the cards. Nevertheless, the preponderance of the evidence estab- lishes that responsible supervisory employees of the Re- spondent had knowledge, or strongly suspected, that em- ployees had signed union authorization cards prior to the dismissal of the five employees on October 2. All of Frankel's highly agitated remarks made at the diner on the morning of October 2 reflect that the in- volvement of his employees with the Union was the only thing he had on his mind. There are two other noteworthy aspects to Frankel's encounter with the men at the diner. First, all the em- ployees quote him as having professed ignorance of the fact that the men were going to be fired. Both Rossi and Franker testified that Frankel made the decision to dis- miss them on October 1, which sounds more sensible. Nevertheless, Frankel appears to have wanted to dis- claim responsibility. Second, Frankel suggested that they meet for dinner at 6 p.m. that very evening to discuss the matter. In extending that invitation, however, Frankel made no mention whatsoever of any plan of reorganiza- tion. Obviously, all he had on his mind was their em- ployment status. On September 30, 1980, Chirico left a telephone mes- sage for Joe Lewis that "management knows union was called." The message was identified by the union em- ployee who took the message. It was introduced into evidence concerning the claim that Gravenese had inter- rogated Chirico on that date regarding union activity. Although I regard this piece of evidence as extremely unclear in its significance, and incapable of establishing or corroborating Chirico's version of what was said, it does establish that something happened that gave Chirico cause to believe that Respondent's management had got wind of the union activity. I credit Crisci's testimony that when he saw Frankel about 6 p.m. on October 2, Frankel told him that he knew about the Union the night before. Other circum- stances to be considered on the question of knowledge on the part of management of union organization activity include the small number of employees in the shop, the fact that Frankel, Rossi, and Mitaro were familiar with the union background of some of the employees, the timing of the discharges that occurred on the morning following the night when Frankel said he knew of the Union, and the abruptness with which Frankel dis- charged the men without notice, though he professed to have a close personal relationship with these very people.9 The General Counsel having established a prima facie case, it was incumbent on the Respondent to show that the employees would have been discharged in any event. 10 Treading extremely carefully, the Respondent sought to ascribe its action in dismissing the five men on Octo- ber 2 to a business or economic decision made in antici- pation of an impending disaster in its relations with the Ford Motor Company, an anticipated fmancial refund which it would be required to make to Ford on a review by Ford of payments made for warranty work," an an- 9 Wiese Plow Welding Co., 123 NLRB 616 (1959); Coral Gables Conva- lescent Home, 234 NLRB 1198 (1978). See also NLRB v. Long Island Air- port Limousine Service Corp., 468 F.2d 292 (2d Or. 1972), enfg 191 NLRB 94 (1971), and Galar Industries, 239 NLRB 28 (1978), in which it was found that union activity was open and obvious in nature. In Long Island Airport Limousine at 295, the court made the following observa- tions respecting circumstantial proof of knowledge of union activity: It is true that m many—perhaps most—section 8(a)(3) cases, an employer's knowledge of an organizing campaign is either conceded or overwhelmingly proved by direct evidence, and the real issues are whether the employer also knew that a particular employee was so engaged and fired him for that reason.. . But this is not always the case, More important, there is no good reason why the two factual propositions—employer knowledge of general Union activity and employer anti-Union motivation in discharging a particular employ- ee—need be proved by different types of evidence. As to each, direct evidence may not be obtainable and circumstantial evidence and "inferences of probability drawn from the totality of other facts," . . . are perfectly proper. 50 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir: 1981), finding a prima facie case established on a showing of union animus and timing of discharges (shortly after the union election). The rule was formulated as follows (251 NLRB 1083, 1089) Thus, for the reasons set forth above, we shall hence forth employ the following causation test in all cases alleging violation of Section 8(a)(3) or violations of Section 8(a)(1) turning on employer motiva- tion. First, we shall require that the General Counsel make a prima facie showing sufficient to support the inference that protected con- duct was a "motivating factor" in the employer's decision. Once this ,is established, the burden will shift to the employer to demonstrate that the same action would have taken place even in the absence of the protected conduct. 55 A substantial amount of testimony was offered to show the various stages of review by which Ford Motor Company monitors payment for Continued WHITE PLAINS LIN9DLN MERCURY 1149 ticipated marked reduction in warranty work with an at- tendant decline in gross income, the bleak business out- look for the ensuing fall and winter seasons, and the gen- eral financial condition of the Respondent, without rest- ing necessarily on any one of those factors. All of this together is claimed to have been the cause for the dismissals that occurred on October 2, 1980. The warranty chargebacks are stated to have "triggered" the layoffs. Thus, the Respondent does not ascribe the lay- offs solely to the financial condition of the Company but maintains that the Company's financial condition was one of the factors that entered into the decision. In the words of company counsel: The position of the employer in this case is not that the company was losing money and that there- fore they had to lay off people in order to cut the loss, but that at the time in question, a particular in- ciderit happened which created the fear in the minds of management that there would be in the near future a loss which could be catastrophic for various reasons. . . . they were losing money and they expected that business was going to decline in the ensuing couple of months. They further were confronted for the first time with a statement from the representative of Ford that their warranty work was excessive by—I think it was forty percent that month; that unless they re- duced their warranty work, it would be—they would be subject to charge back, potential audits and all these other things, and that therefore they had to do something immediately to bring things into line. . . And they did it by firing—among other things, they did it by firing five employees. The Respondent thus sought to ascribe its actions to a kind of multifaceted malaise with a tincture of panic thrown in for good measure. Frankel testified that an at- mosphere of panic hung over the Company at the end of September and during the first week of October. Frankel's cast of mind is undoubtedly as important as the actual facts regarding the c:hargeback, for his alleged perception of the danger is what is supposed to have prompted his actions. An incorrect, but sincere, assess- ment of the facts may be a lawful basis for the layoffs.12 warranty services. First, there is review by the district representative, in this case, a Mr. McCarthy. The representative in Respondent's area over- sees about 12 dealerships In serious cases, or situations in which there is no improvement, a regional review team becomes involved. In flagrant situations, a dealer's warranty operations for as much as a year past may become subject to review by a warranty audit team from Dearborn, Michigan The dealer's performance is measured against a norm ascer- tained by consideration of the amount of reimbursement paid for warran- ty work to dealers throughout the country. In remedying the situation, Ford may have recourse to imposition of controls on the warranty work and to chargebacks against the dealer for excessive payments found to have been made by Ford for work done improperly or unnecessarily. Figures are based entirely on the amount paid in any given month, re- gardless of when the work was actually performed. i2 "An employer may discharge an employee for good cause, bad cause, or no cause at all, without violating § 8(a)(3), as long as his moti- vation is not antiunion discrimination and the discharge does not punish activities protected by the Act" L'Eggs Products v. NLRB, 619 F.2d 1337, 1341 (9th Cir. 1980) It should be noted, however, that if Frankel is a man sus- ceptible of panic, it is not out of the question that his dis- covery of attempts to unionize his shop might have trig- gered a like reaction. His explosion in the diner suggests that the firings might have resulted from that cause. His animus against the Union is considered at length below. I cannot believe, however, on the basis of evidence in the record, that Frankel's actions were the result of panic I think anger and animus against the Union would be far more accurate ways of denominating the emotion- al climate surrounding the events of October 2. He testi- fied that he reviewed conditions with both Rossi and Mitaro before ordering Rossi to discharge the men. On the stand, he impressed me as an articulate, hardworking businessman in complete control of his emotions. He was always in charge. When the Ford representative had concluded his review, Frankel sat down with his partner, Mitaro, and according to his own testimony explained to Mitaro the gravity of the situation and the need for cost cutting. Because the service department was responsible for most of the fixed expenses, he believed that the costs had to be cut in that department. His purported analysis of conditions in the department was that money was being wasted because class "A" mechanics did not have enough work to keep them busy at their own level of ex- pertise and were performing work normally done by class "B" mechanics, with a consequently lower income to the Company. The discussion with the Ford representative took place during the spring, summer, and fall of 1980, and he per- formed a warranty review on September 26, 1980. The discrepancies found consisted of matters such as reten- tion of damaged parts, inflation of mechanics' worktime, replacement rather than overhaul of assemblies, and complete, instead of spot, repair on outside paint work. Frankel's depiction of the terror with which he beheld the prospects of warranty chargebacks is unconvincing for a number of reasons. For one thing, it was conceded in the testimony that industry practice was to impose a chargeback only when a dealer failed to comply with company recommendations for the resolution of warran- ty problems. The report, prepared by the Ford represent- ative after the review of September 26 does not provide for chargeback action and merely places the dealership on prior approval for certain trim and continued an exist- ing requirement for prior approval for all paint work (R. Exh. 6). When imposition of a chargeback was finally considered, the proposed chargeback amounted to only $1000, and Frankel negotiated it down to a paltry $125. Additional reasons for skepticism regarding Respond- ent's contentions about the reasonable expectations of its management respecting the future of the business are to be found in the ensuing actions of that management. Frankel's testimony that he had determined to reduce warranty billing to well below the national average so as to restore the overall record to a level that would re- store the Company to Ford's good graces is offset by evidence that the Respondent's warranty billing, even after substantial reduction, remained above the norm. There is no question but that monthly income from war- ranty work which had been approximately $10,000, 1150 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD dropped sharply. The actual payments received for war- ranty work for the balance of the year were materially reduced. September $7800 October 5900 November 3900 December 3755 Nevertheless, the fact remains that the figures for the last half of 1980 continued to be above the national norm. Month Percent of the Standard July 108.7 September 154.3 October 130.1 November 106.4 December 103.9 Suspicion about Frankel's lack of sincere determination (if such determination in fact existed) is heightened by his strange choice of an inappropriate remedy. He well knew that the whole warranty problem resulted from faulty supervision by Rossi and Gravenese. He testified that he was terribly upset over their failure to avoid or check the problem. Yet he went right on paying them bonuses while firing the mechanics who had worked under their supervision. If Frankel's testimony is accept- ed at face value, then his concepts of business manage- ment are incomprehensible. It is also to be noted, and never overlooked, that the service manager in whom Frankel had such confidence disagreed with him com- pletely concerning the layoff. An equally important consideration is the evidence that the nature of the warranty problem was altogether different from what it was represented to be and consid- erably less urgent. It has already been mentioned that the discussions dragged on through most of 1980. About 3 weeks before the employees were notified of their dis- charge, Rossi and Gravenese met with all the mechanics to discuss the warranty work accounting practices. Rossi announced that, at Ford's insistence, they would hence- forth be required to punch in for each operation that they performed so as to make available to Ford an item- ization of all operations performed concerning any repair work. Chirico testified that Rossi also mentioned this to him in a private conversation. This is the only discussion of the warranty work that management ever had with the mechanics prior to October 2. The discussions with the employees were also barren of other topics that assumed great importance at the hearing. Prior to October 2, no member of management ever mentioned to any employee that there was a lack of business, or that work was slow or that there existed the possibility of a layoff. In the discussions with the Ford representative, the subject of layoffs never arose. Despite the review by the Ford representative and a further re- gional review in November, the Respondent received minor demands for adjustment. If any crisis existed, it did not originate from warranty problems. It is also unclear how deeply Frankel actually consid- ered the financial aspects before he acted. In addition to the terribly grim picture that he presented, which has just been described, he also testified that the need for layoffs resulted from a combination of financial losses "for the last couple of weeks, more or less" and project- ed further loss as a result of poor 1981 model sales, plus the need to tighten up the warranty operation, as a result of all of which he only anticipated poor business "for the next couple of months." The evidence establishes overwhelmingly the follow- ing basic facts regarding the fmancial condition of the Respondent: (1) the Respondent's balance sheet showed a net loss, in part due to the assumption of inventory of Manor Lincoln Mercury and of liability therefor; (2) at all pertinent times, the monthly profit-and-loss statements disclosed a profitable operation in the service depart- ment; (3) Rossi, Gravenese, and the parts manager (Charles Bucchione) all received bonuses geared to their departments' productivity and profit, which bonuses were paid in every month of 1980 and were never sus- pended; (4) Chirico exceeded the 40-hour booktime mark in at least 1 week in September 1980; (5) Weemaels ex- ceeded it and received incentive pay for it in 3 out of 4 weeks in August 1980 and in each week of September 1980; and (6) Crisci received incentive pay for work in excess of booktime in every week that he worked for the Respondent. No employee ever discerned a slackening of the pace of the shop. Crisci, who worked for the Respondent at the inception of Respondent's business and left to work for a private garage, was rehired when he chose to return (he answered Respondent's advertisement for me- chanics). When Cisci hurt a fmger, Rossi anxiously in- quired about his absences for treatment and removal of sutures, because the shop was very busy. When Crisci, who testified that he felt harassed by Rossi, threatened on September 17 to get another job, Rossi's response is quoted as follows: "I don't want' to hear you're going to look for another job. I need you here and I got plenty of work." Though Frankel testified that the Respondent sus- tained an overall loss in 1979 and 1980 and in each month of the last quarter of 1980, he also testified that the Company was not insolvent and was able to pay its debts as they became due. For the foregoing reasons, I cannot accept as credible the Respondent's explanation of its actions in discharging the discriminatees." In addition, its contentions run 13 I want to note that the credibility of the Respondent's case was con- _ siderably diminished in my view by the Respondent's failure to present testimony from several persons who were in a position to throw light on disputed versions of events at issue. For example, Maar° did not appear, though his testimony could have shed light on his conversation with Cnsci in August 1979, the statements made at Chirico's employment interviews, the events of October 2, the discussion that he attended at the Eastchester Diner on October 5, the suggestion he allegedly made to Chirico to call Weemaels respecting revocation of the union authonza- lion cards, and on several other matters. The telephone call that Frankel made to Weemaels at 4:30 pin. on October 2 was placed for him by Charles Bucchione, who was thus in a position to testify regarding what he heard of Frankel's end of the ensuing conversation. Frankel, who was not an accountant, testified regarding the Company's financial condition and gave confusing testimony respecting the company accounts. Unsatis- factory testimony by Frankel mcludes, but is not limited to, statements that he lost money in 1979, but a loss of approximately $21,000 or Continued WHITE PLAINS LINCOLN MERCURY 1151 afoul of certain other circumstances, any one of which would cast serious doubt over the whole explanation. These are the rapid rehiring of the men (except for Crisci), the placement of advertisements for mechanics during the period of supposed crisis, the clear proof of animus toward the Union, the confusion in the testimony about the basis for selection of employees for discharge and reinstatement, and the inadequacy of the reasons ad- vanced for the failure to reinstate Crisci. 1. The rapid rehiring When Joe Lewis entered the showroom and encoun- tered Mitaro on the morning of October 2, he asked him, "How can you run a business by laying off five out of nine people?" He thus immediately perceived and articu- lated the lack of sound business reasons for the dismis- sals. In fact, the men were recalled with extraordinary speed notwithstanding Frankel's explanation to Crisci and Chirico that the decision to fire them was an eco- nomic one; notwithstanding his testimony that the deci- sion to fire the men was intended to be "far reaching" and permanent; and notwithstanding Frankel's testimony that as of October 13, 1980, when all the men except Crisci had returned to work, the Company was still losing business and the warranty problem still had not been resolved. Frankel testified that the decision to rehire at least three of the men (Chide°, Weernaels, and Hopgood) was made as early as October 7, and telegrams went out on October 8 after Frankel had had an opportunity to advise Mitaro. A mailgram was sent to Harvey on Octo- ber 9. In his testimony, Frankel said that he was con- cerned that word get to the men right away. From grim pessimism, Frankel had Swung over to an optimism that can only appear irrational if his stated rea- sons for firing the men are to be believed. According to Frankel's testimony, the fact that he knew the men individually and knew their families was "a very, very strong part of the reason I took them back on that date." He searched for a way to do so, discussing the matter with Mitaro and Rossi. He proposed a plan of reorganization to increase the amount of needed work that would be discovered whenever a car was brought into the shop, and when the men indicated they thought it would work, he felt the plan justified rehiring them According to Frankel's testimony, he had long pon- dered the potential uses of the second floor of the prem- ises occupied by the Respondent. The distasteful necessi- ty of firing employees whom he had known for many years galvanized him into action, and he formulated a plan for reorganizing the shop in such fashion to increase the amount of nonwarranty work that would be done on $22,000 is not reflected in the carry forward from 1979; he lost money in 1980; he was not insolvent; floor plan interest was deducted from selling gross; the Company has not been losing business since its inception; he has no figure for the amount of money saved as a result of the layoffs of the five mdividuals involved in these proceedings, because "it was too short a time." Testimony from the corporate accountant would have been helpful, to say the least. In all of these circumstances, I must infer that the testimony that would have been elicited would not have been helpful to the Respondent. Davis Walker Steel & Wire Corp. 252 NLRB 311(1980); Teamsters Local 959, 248 NLRB 693, 698 (1980). cars brought in for service. The plan was designed "to make the place more productive and bring back people into the place" by concentrating supervision on each car and each technician so that more work could be sold, thus making up in customer labor what had been lost in the warranty area. To this end, the mechanics were di- vided into two teams under Gravenese, the assistant manager, and Jack Carella, the order writer. Frankel discussed the plan with Crisci when Crisci saw him at 6 p.m. on October 2; with Mitaro, Chirico, Weemaels, Hopgood, and Harvey at the Eastchester Diner on Sunday, October 5; and with Chirico on Octo- ber 7. During these conferences he avoided any commit- ment to rehire the men, though specific requests for rein- statement were made. Instead, he persisted in a strange series of discussions with men whom he had fired re- garding reorganization of the work in the shop, even to the extent of discussing the respective teams to which the men would be assigned. Weemaels quoted Frankel as saying that he now realized that there was a legitimate employee complaint regarding the operation of the busi- ness, and his main concern was to alleviate the problem, but his plan could not be implemented unless the shop remained free of the Union. Whether he is being accu- rately quoted," the fact remains that Frankel dangled the prospect of reemployment before the employees, and I do not believe his story that he did so pending their approval of his ideas for reorganization of the service de- partment. I do not credit Frankel's explanation that at the time of the Eastchester Diner conference on October 5 he still did not know if he would rehire the men be- cause his plan was not fully worked out yet. I find that the putative reorganization plan was a sham, designed to maintain contact with the employees until Frankel was satisfied that they understood his determination to main- tain a nonunion shop. I so find because, among other things, Frankel's testi- mony regarding the plan contradicts his assertions, in the course of his testimony, that he had had such a plan in mind for some time and it was not a new plan and that by the time the men had been discharged he had already done everything that was possible to make the business more productive. His behavior in conferring with the men for the alleged purpose of discussing the reorganiza- tion is utterly incompatible with his testimony that they had been discharged by reason of economic circum- stances and that the discharges had been intended as part of a long-range readjustment to economic conditions. The plan itself had serious ' difficulties inasmuch as it introduced into the chain of supervision someone less qualified to supervise the work (Jack Carella) than the 14 Frankers version is as follows: And they said, they kept repeating themselves, is there anything we can do to get our jobs back. We just want to work. They said look—Marty said again, look, if there's anything you can do, we'll work. All I want to do is work. And please see what you can do. And at that point, I said let me think about it and I said maybe we can get together later on today, possibly for dinner or something. I said let me work it out and see, because I was noticeably shook So I told them I would get back to them, possibly for the evening, and I left at that point. 1152 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD people who were already doing it. The examination of vehicles for needed work, in addition to that for which the vehicles were in the shop, could easily have been ac- complished without drawing charts of "teams." In fact, the uncontroverted evidence of the complete disregard of the plan after the men were reinstated, with the result that it was a dead letter within a matter of a few weeks, without a murmur of protest from Frankel, most effectively establishes its sham nature. Finally, it should be noted that there is no evidence in the record that the plan was ever discussed with any of the mechanics who were not dismissed and who would seem to have a greater stake in its success than those who were no longer employed, and it should be noted that though Frankel professed to have had such a plan in mind since the spring of 1980, he never mentioned it to Rossi until after the layoffs. 2. Advertisements for mechanics Notwithstanding the grim outlook for the fall and winter of 1980-1981 and the difficulties with Ford Motor Company respecting warranty work, the Respondent ran an advertisement on September 24, 25, and 26 for auto mechanics "for expanding Service Dept. 2 Class 'A', 3 Class 'W." The advertisement was placed during the week of September 15 by Frankel himself. The explanations offered for this advertisement were contradictory. On the one hand, it was asserted that ad- vertisements are normally run even if there are no open- ings in order to maintain a "bank" of job applicants. This explanation runs afoul of other testimony respecting the business outlook and the expectation that the layoffs made on October 2 were expected to be permanent. It also seems a strange way to spend money in hard times. On the other hand, it was asserted that the advertisement was placed in anticipation of Crisci's departure. That ex- planation makes it hard to understand the specific call for five mechanics of two separate classes. The placing of the advertisement puts a severe strain on the credibility of the Respondent's contention that the employees were dismissed because of the economic ne- cessity to curtail operations, and credibility is not reha- bilitated by the excuse that the Respondent customarily places advertisements for positions that are not in fact open. 3. Animus toward the Union as expressed in statements by management Frankel testified that he did not want the Union in his shop for purely financial reasons; he had no animus against the Union per se, having managed a union shop previously. He also testified that had the Union come in, it would not have increased his costs. With this contra- diction as a starting point, an examination of the state- ments made by Frankel to the employees at the time and his testimony during the hearing convinces me that he possessed a strong antiunion bias. It may be noted at the outset that Frankel's partner, Mitaro, is alleged by Crisci to have made antiunion state- ments in August 1979. Crisci testified that when he ap- plied for employment at that time, Mitaro stated that he was reluctant to hire anyone who had worked at Manor Lincoln Mercury because they had been union men. Crisci also testified that when he saw Frankel at 6 p.m. on October 2, Frankel told him that he knew about the Union the night before, made remarks expressing antiun- ion animus, and asked Crisci who started the Union. He also stated, according to Crisci, that he would close the business before he let the Union in. I fmd Crisci's testimony credible, both because of Cris- ci's own apparent credibility and because Frankel's testi- mony respecting his meetings with Joe Lewis in his own office and with the men across the street at the Oasis Diner reveals the extraordinarily deep degree of offense that Frankel felt on discovery that the Union was in his shop. He described his encounter with Lewis as follows: I believe it was in my office. . . . I remember Joe Lewis presenting a card, saying how are you. He shook my hand. He said I'm Joe Lewis from UAW Local 259 and I represent your men. And I think my answer was I don't understand And at that point, I think I was shocked I think I was stunned. I might have said something like I don't understand, or I don't recognize you, or something to that effect. . . . but to be honest with you, the whole one little section right there is very fuzzy to me. It really took me—it took me by sur- prise. . . . [Y]ou could have blown me over. I mean these are people in the shop that I consid- ered I had the greatest rapport with. . . . And if somebody would have said make you a large wager that they're doing something behind your back, I would have wagered it. . . . Frankel testified that his first reaction after Lewis left was to "get hold of Joe Rossi right away and find out if he knew what was going on with it, at which time he said no.. . . I think he was as shocked as I was over the whole thing, by just the look on his face. He was a little more prepared since he saw Joe Lewis walk in. . . . He said no, I never saw any cards around. It was a total, total surprise at that point." The shock had not worn off as of approximately 11:30 a.m., when Frankel went to the diner across the street for coffee. He spotted Weemaels, Chirico, and Crisci sit- ting at a table and joined them. Though Frankel demurs somewhat from their version of what he said on that oc- casion, his own version is actually in accordance with those of Chirico, Weemaels, and Crisci, and all versions of his statements demonstrate the degree of shock and hurt that he felt on discovery of their union activity. Frankel put it this way: Honestly, I was—the fact that they asked an out- side bargaining agent to talk for them was a let down to me. I felt—and it was a personal affront to myself. WHITE PLAINS LINCOLN MERCURY 1153 I felt all the things that I've done for them and all the emphasis I had on talking to me, being open, solving problems for them, the fact that they didn't think they could come to me to solve whatever was bothering them at this point. And basically, I remember I walked over to the table, had my coffee in my hand, and I just kind of looked at them and I said you know, how can you do this to me? How could you have done this to me? It really—it was a staggering offense to myself, I felt, the fact that this happened. Basically, it was like saying how could you do this to me. That was basically it. How could you do this to me. Q. You told them you were taking it personally? A. Yes, absolutely. Q. Did you tell them that you thought this was worse than if your wife was raped? A. No, that wasn't quite the way I described it. I said I put it in the same category as somebody raped my wife, as far as my personal feeling to the whole—it couldn't have hurt me more. It was very, very upsetting. 4. Basis of selection of employees for discharge and reinstatement Layoffs were on a seniority basis, according to Fran- kel and Rossi, but Rossi's testimony seemed to indicate that it may have worked out that way more from acci- dent than from design. In a rather confused statement, he first indicated that they tried to keep it on a seniority basis as a matter of fairness, but then proceeded to state that regarding the technicians they tried to keep the men that were there first and the ones they thought would help them the most—two categories that were not neces- sarily coextensive. He then added, "It worked out that most of the men we had hired first were in higher senior- ity than the fellows that we had to let go." That would seem to be self-evident, unless seniority was being de- fined by some other yardstick. He then repeated, "It worked out that the people we did keep were in higher seniority than the people we let go at that point. In other words, the five people that we let go were in a lower seniority than the people we retained." In the course of his testimony, Frankel stated that on October 7, 8, or 9 he met with Mitaro and Rossi, and an initial decision was made to rehire three people on the basis of seniority. This statement, of course, creates im- mediate difficulty because the evidence in the case clear- ly establishes that the decision to rehire was made as early as October 7 and the first word went out to the men the very next day. Frankel and Rossi also furnished other, contradictory reasons for their actions. It was asserted that the men discharged were not as good as the ones they elected to retain. The polisher was stated to have been discharged because of the decline in auto sales. The discharge of Weemaels was attributed to the decline in warranty work, which is what most of his time had been allocated to. In the case of Chirico, who was a class "B" mechan- ic, the reason given was that he was being paid almost as much as a class "A" technician. The evidence that seniority was the yardstick by which the Respondent discharged and recalled employ- ees is thus seen to be weak, unclear, contradictory, and incredible. 5. The failure to recall Crisci Crisci had been first employed by the Respondent when it started business and had left of his own volition. When he was subsequently rehired, Rossi extracted an assurance from him that he would remain for a substan- tial period of time. When Crisci injured himself on Sep- tember 9, he was angered because he felt that Rossi mini- mized his injury and made too assiduous an inquiry to as- certain when Crisci would be returning to work. Rossi believed Crisci had subsequently taken off an afternoon to have the sutures removed without notifying anybody that he was leaving. The friction between Rossi and Crisci prompted Crisci to announce on September 17 that he intended to seek employment elsewhere. The Re- spondent depends primarily on that threat and its alleged consequent assumption that Crisci would not be remain- ing with it for long in order to justify the failure to recall him It is obvious, however, that none of these circum- stances played a role in Crisci's dismissal and I cannot credit the contention that they affected the decision not to recall him. Crisci had clearly indicated his desire to return to work and had consented to a meeting with Frankel on the evening of October 2 only if the meeting would involve restoration of his job. The Respondent had just run an advertisement for five mechanics and Rossi had tried to assuage Crisci on September 17 by saying he had plenty of work and needed him The attempts of Respondent's witnesses to refine the basis for Crisci's discharge and failure to reinstate him did not help their credibility. Testimony that manage- ment was guided by seniority was almost immediately contradicted by testimony that it was assumed that Crisci would soon be leaving of his own volition. Frankel testi- fied that Crisci was not considered for reinstatement, not simply because he was lowest man in seniority, but be- cause of his absentee record, his attitude, and his work performance. None of these factors were mentioned by Rossi, who testified only that they "knew" Crisci was going to leave but did not know when, and that they thought, "Maybe we could do without his services." In spite of the "maybe" Rossi testified that Crisci was not an acceptable employee, apparently forgetting that he had been hired by the Respondent twice and, the second time around, only on condition that he agree to stay for a reasonable period of time, and that he had regularly drawn incentive pay. I can only conclude that the reason Crisci was not re- called was that he had engaged in union activity. Ac- cording to Chirico's testimony, he had a conversation with Rossi on November 28 in which Rossi blamed Crisci for having initiated the union movement in the shop. Joe Rossi had said that he couldn't understand why I had pursued this matter for as long as I did. 1154 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD He said that there was no reason why I should have stuck with Clem . . . . And he had told me that before Clem Crisci was hired that there was no talk of a union or anything like that. And that it was after Clem Crisci was hired that this union business had gotten underway and that we had pursued it then. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE The violations of the Act found to have been commit- ted by the Respondent have a close, intimate, and sub- stantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor dis- putes burdening and obstructing commerce and the free flow of commerce. V. THE OBJECTION TO THE ELECTION AND THE CHALLENGE TO THE BALLOT OF CLEMENT CRISCI A. The Objection to the Election As previously noted, review of Objection 3, a general objection, is expressly limited by the terms of the order of April 23, 1981, to the question whether it may be sus- tained by reason of the commission by the Respondent of either of the offenses alleged in paragraph 11 of the com- plaint. Inasmuch as I have found that the evidence is in- sufficient to charge Respondent with unlawful interroga- tion of employees or with urging circulation among the employees of a petition withdrawing support for Local 259, which are the two offenses alleged in paragraph 11, there remains no basis for the objection. I find, therefore, that Respondent did not engage in conduct interfering with the election and that the Union's Objection 3 there- to is overruled. B. The Challenge to Clement Crisci's Ballot The ballot of Clement Crisci was challenged because his name did not appear on the eligibility list. I have found that Crisci was discriminatorily discharged in vio- lation of Section 8(a)(3) of the Act and is entitled to rein- statement. Accordingly, I further find that Crisci was eli- gible to vote in the election conducted on November 21, 1980, and therefore recommend that the challenge to his ballot be overruled. Having recommended that the challenge to said ballot be overruled, I shall further recommend that the repre- sentation proceeding be remanded to the Regional Direc- tor With the direction to open and count his ballot and prepare a revised tally. Should the tally of ballots that results from such action reveal that the Union has won a majority of the votes cast, then certification should issue. In the event that the Union does not receive a majority of the votes cast, then the Regional Director should so report and decline to certify the Union as the representa- tive of the employees in the bargaining unit. THE REMEDY Discharge of an employee and refusal to reinstate him because of union activity is one of the most egregious violations of the Act because it is a flagrant form of in- terference with employees' rights under Section 7 and is among the less remediable unfair labor practices. 15 The basic requisites for issuance of a bargaining order are thus met in this case by the discharge of five employees for union activity." The small size of the employee complement is also a factor to be considered. 17 The fact that four of the five discriminatees have been reinstated does not alter the need for such an order because there was a substantial delay in reinstating them and one em- ployee has never been offered reinstatement. The changes in the work force since October 2, 1980, do not, in my mind, reduce the need for a bargaining order, for the coercive effect of the dismissals under the circum- stances of this case is incalculable.18 Nevertheless, I cannot recommend that a bargaining order be issued here. There is no meritorious objection to the election. The evidence in this case convinces me, and I have accordingly found, that Frankel did not un- lawfully interrogate any employee on October 8, 1980, and that Frankel did not urge the circulation of a peti- tion for withdrawal of the union authorization cards signed by the employees. The general objection, Objec- tion 3, is specifically based entirely on those two allega- tions and has accordingly been overruled. A bargaining order may not issue in the absence of any valid objection to the election.19 Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it be or- dered to cease and desist therefrom and take certain af- firmative action designed to effectuate the purposes of the Act. Having found that Respondent discharged Steven Chirico, Martin Weemaels, James Harvey, and Robert Hopgood in violation of Section 8(a)(1) and (3) of the Act, and having failed to reinstate them for a period of 11 days, I recommend that Respondent be ordered to make them whole for any loss of earnings and other ben- efits resulting from their discharge and delay in reinstate- ment, by payment to them of a sum of money equal to the amount they normally would have earned as wages and other benefits from the date of their discharge, Octo- ber 2, 1980, to the date on which reinstatement was ef- fectuated, less net earnings during that period. Though "El Rancho Market, 235 NLRB 468, 476 (1978). 16 NLRB v. Gissel Packing Co, 395 US. 575, 610 (1969). 11 El Rancho Market, supra 18 In NLRB v. Katz, 369 Us. 736 (1962); NLRB v. L. B. Foster Co., 418 F 2d 1 (9th Cir 1969); L'Eggs Products v. NLRB, 619 F.2d 1337 (9th Cir. 1980). Even courts inclined to consider employee turnover and the passage of time as factors in determining whether a bargaining order should issue limit such consideration to cases in which the "employer's misconduct is serious but not outrageous." NLRB v. Western Drug, 600 F.2d 1324, 1326 (9th Cir 1979). In NLRB v. Jamaica Towing, 602 F 2d 1100 (2d dr. 1979), dismissals from employment were not involved. 16 Irving Air Chute Co., 149 NLRB 627 (1964), enfd. 350 F 2d 176 (2d Cir 1965); Bandag, Inc , 225 NLRB 72 (1976) In Bandag, Inc., the Board noted that in the absence of meritorious objections, an election is deemed valid and described such an objection as a "crucial precondition to a bar- gaining order" 225 NLRB at 72. In Bandag, Inc., the Board refused to distinguish between situations in which the objections have been with- drawn and those in which they have been overruled, stating that the cor- rect test is whether there are objections on file and the election outcome is still being disputed. No such distinction is drawn in Irving Air Chute Co. supra, on which the decision in Bandag, Inc. is based. WHITE PLAINS LINCOLN MERCURY 1155 reinstatement was offered as of October 8, the time avail- able for contact with the discharged employees was so limited that return to work was not feasible prior to Monday, October 13, 1980. The amount of backpay and interest thereon shall be computed in accordance with the decisions of the Board in F. W. Woolworth Co., 90 NLRB 289 (1950), Florida Steel Corp., 231 NLRB 651 (1977), and Isis Plumbing Co., 138 NLRB 716 (1962). Having found that Respondent discharged Clement Crisci in violation of Section 8(a)(1) and (3) of the Act, I recommend that Respondent be ordered to offer him re- instatement and to make him whole for any loss of earn- ings and other benefits resulting from his discharge by payment to him of a sum of money equal to the amount he normally would have earned as wages and other ben- efits from the date of his discharge, October 2, 1980, to the date on which reinstatement is offered, less net earn- ings during that period. The amount of backpay and in- terest shall be computed in accordance with the cases Cited. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. Respondent violated Section 8(a)(1) of the Act by: (a) Threatening to close its business should the em- ployees select the Union as their collective-bargaining representative. (b) Threatening reprisals against employees who en- gaged in union activity and other protected activities. 4. Respondent violated Section 8(a)(3) and (1) of the Act by discharging Steven Chirico, Martin Weemaels, James Harvey, Robert Hopgood, and Clement Crisci be- cause of their union activities. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 6. Respondent did not engage in any unfair labor prac- tices other than those found here. [Recommended Order omitted from publication.]