Northeast Lincoln Mercury, Inc

NORTHEAST LINCOLN MERCURY Northeast Linclon Mercury, Inc and Anthony J Borda and John J Neiman Cases 4-CA-16986 and 4-CA-17078 February 7, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND HIGGINS On October 26, 1988, Administrative Law Judge Michael 0 Miller issued the attached decision The Respondent filed exceptions and a supporting brief, and the General Counsel filed an answer supported by the General Counsel's posthearing brief to the judge The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, I and conclusions and to adopt the recommended Order as modified ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Northeast Lincoln Mercury, Inc, Phila- delphia, Pennsylvania, its officers, agents, succes- sors, and assigns, shall take the action set forth in the Order as modified Insert the following as paragraph 2(c) and relet ter the subsequent paragraphs "(c) 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 " ' The Respondent has excepted to some of the judge s credibility find rags 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 Richard Heller Esq, for the General Counsel Robert P Style Esq (Rubin Quinn & Moss), of Philadel phia, Pennsylvania for the Respondent DECISION 857 STATEMENT OF THE CASF MICHAEL 0 MILLER, Administrative Law Judge This case was heard in Philadelphia Pennsylvania on May 23, 1988, based on unfair labor practice charges filed by Anthony J Borda and John J Neiman individuals on December 3, 1987, and January 20, 1988 respectively, and a consolidated complaint issued by the Regional Di rector for Region 4 of the National Labor Relations Board (the Board) on February 29, 1988, as amended The complaint alleges that Northeast Lincoln Mercury, Inc (Respondent) discharged or laid off the Charging Parties in violation of Section 8(a)(3) and (1) of the Na tional Labor Relations Act (the Act) because they sought to be represented by a labor organization Re spondent s timely filed answer denies the substantive alle gations of the complaint All parties were afforded full opportunity to examine and cross examine witnesses, argue orally, and submit briefs Briefs, which I have carefully considered, were submitted by the General Counsel and the Respondent Based on the entire record,' including my observation of the demeanor of the witnesses I make the following FINDINGS OF FACT I THE RESPONDENTS BUSINESS AND THE UNION S LABOR ORGANIZATION STATUS-PRELIMINARY CONCLUSIONS OF LAW The Respondent is a Delaware corporation engaged in the retail sale and repair of automobiles at its facility on Roosevelt Boulevard in Philadelphia Jurisdiction is not in issue The complaint alleges, and Respondent admits, facts establishing that Respondent is, and has been at all times material, an employer engaged in commerce within the meaning of Section 2(2) (6), and (7) of the Act The amended complaint alleges and Respondent has stipulated, that the International Brotherhood of Team stern Chauffeurs, Warehousemen and Helpers of Amer ica AFL-CIO Local Union No 115 (the Union) is a labor organization within the meaning of Section 2(5) of the Act II THE UNFAIR LABOR PRACTICES A Background-Significant Persona The Respondent is an automobile dealership selling new and used cars which employed about 15 or 16 sales persons during the period involved Among those sales- persons were Anthony J Borda and John J Neiman, the charging parties whose employment was terminated on November 10 and 11, 1987, respectively 2 'The General Counsels unopposed motion to correct the transcript is granted 2 All dates are 1987 unless otherwise specified 292 NLRB No 97 858 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Respondents supervisory personnel include the fol lowing James Impenal and Anthony Muffett, sales man agers, Paul Miller, used car manager and Thomas D it nzzio, leasing manager The sales managers supervise teams of sales personnel and report to the general sales manager, Lon Swenson Thomas Murphy is Respond ent s vice president, Kenneth Toscano is its controller, and Richard Dunafrey is its finance manager The super visory status of each of these individuals and of Peter Trolene, a sales manager until July 1987, has been stipu lated by the parties William Keyte is one of Respona ent's owners B Union Activity At a staff meeting on Monday morning, November 2 Toscano announced the installation of a new telephone system that would permit management to monitor the salespersons telephone calls The announcement upset some of the sales force including Borda and Neiman, they discussed their concerns in the park.ng lot after the meeting Someone suggested that if they were represent ed by a union, management would not get away with this Neiman suggested that they contact the Teamsters, the others agreed and business cards were collected to show the extent of interest in unionization among the employees Thereafter the salespeople, including the Charging Parties, repeatedly talked about the Union, while at work, in Respondent s small (five car) show room, and on the lot The members of management, including Paul Miller, the used car manager were sometimes in the area while the employees union conversations went on, but there was no management participation in the discussions Swenson Imperial and Muffett all had desks in the showroom area Swenson's was enclosed but she spent time both in and out of the enclosure A meeting of those employees interested in organizing was scheduled for about November 15 Although Borda was not one of the major proponents of unionzation he agreed that it could be in a bar that he owned Around November 10 Neiman contacted a representative of the Union and invited him to that meeting Shortly after the union related discussions began Borda mentioned to Tom Murphy that he had tried albeit unsuccessfully to sell five cars to the Plumbers Union Murphy replied, Oh yes You have a lot of con nections with unions don t you9 Borda answered that he had sold quite a few cars to unions, as in fact he had Around this same time, salesman Rudolph Geiser was in the office of the finance manager, Richard Dunafrey when Dunafrey said that he understood that there was going to be a union meeting at Chuck Borda s tavern " Geiser claimed to be unaware of it Dunafrey then said, he understood that Stan Steven Chuck Borda, John Neiman and Cathy Kiska were invovled in the initiation of this meeting " Geiser s testimony was credibly offered and is uncontradicted s 3 I reject Respondent s conter tion that Neiman s offer to compensate Kiska for testifying on behalf of the employees warrants an inference that any witnesses were improperly induced to give false testimony Kiska had knowledge of the union activity but was reluctant to testify Neiman Sometime between November 2 and 5 when Muffett left Respondents employ Muffett and Imperial had a brief conversation about the union activity According to Imperial, Muffett told him that the employees were talk ing about a union Imperial replied that that was their business that he had belonged to a union and that the employees union activity was of no concern to him 4 C Borda s Discharge Anthony Chuck Borda began working for Respond ent in 1983 or 1984 when Respondent acquired this deal ership He sold new and used cars solely on commission Former Sales Manager Muffett described him as good in the overall scope of things ' In the 10 months of 1987 before his discharge he was (according to Respondent s bonus board) Respondents top salesman once, he came in second twice, and he was in the top half seven times On November 6, after Borda completed a telephone conversation with one customer Imperial pointed out another who had been looking around the showroom for some time Borda approached the customer, a Mr Che pigan, who expressed a interest in the Lincoln Town Car Together they went out on the lot and Chepigan se lected a car As they walked back into the showroom, Chepigan asked about financing and, when told that the rates fluctuated, said that he would go to his bank for fi nancing and would return that evening Borda got him a price for the car he had selected and, as the customer with whom he had been talking on the phone came in at that time, Borda gave Chepigan his card with salesman Vladez name written on it Borda told Chepigan to see Valdez when he returned as he would not be on duty at that time Borda then proceeded to sell a car to the other customer Borda did not turn Chepigan over to a manag er before letting him leave the dealership (i e, T 0 him), neither did he complete an upsheet regarding Chepi gan Respondent requires its salesmen to complete upsheets on all customers Upsheets record the customer a name address phone number, the vehicle shown the trade in if any, what the salesman had offered and what the cus tomer was willing to spend Respondent s salesmen are frequently reminded of the necessity to complete and submit upsheets Letting a customer walk without giving a manager an opportunity to persuade that customer to may have been foolish to offer to somehow compensate her for the risks she felt testifying might pose but did not ask her to lie There is no mdi cation that Neiman asked Kiska or anyone else to give false testimony 4 According to Muffett Impenal allegedly said that if the employees pursued the union activity it would cause trouble and aggravation Muf fett further stated that Impenal quoting Lon Swenson had said The principals of Northeast Lincoln Mercury would get rid of the store sell to Potamkin [another dealer] rather than let that happen Although not without some doubt in the matter I credit Imperial s testimony as set forth above noting that Muffett was confused about the date of this con versation placing it in late October before any union activity took place that Muffett had left Respondents employ on November 5 because he felt that his demotion to sales had been a slap in the face and further noting that Imperial had voluntarily left the ranks of management and was at the time he testified one of the sales force Moreover while his response to Muffett s statement appears somewhat programmed I note Imperial s candid acknowledgement of his knowledge of the union activi ty NORTHEAST LINCOLN MERCURY buy a car is disparagingly known in the trade as blow ing out a customer " When Chepigan returned later that evening, he asked Rudoplh Geiser to refer him to Valdez As no upsheet could be found however, Geiser kept the customer and sold him a car Geiser completed an upsheet On November 10, Swenson was reviewing recent sales and, as she occasionally does called the customer, Che pigan She learned that Borda had spoken with him first, that Borda had let him leave without either an upsheet or turning him over to a sales manager, and that the cus tomer had been referred back to the dealership by the bank, which had an arrangement with Respondent to make such referrals She then called Borda into her office and asked him about the customer, reminding him that he had given the customer a card with Valdez' name on it, but had failed to complete an upsheet She told him that the customer had returned and that Geiser had sold him a car Borda responded that Geiser could have the commission Swen son told Borda that Chepigan was obviously a potential customer because he had said that he was going to his bank to check on financing and that, if he had gone to a different bank, he would have been referred to another dealership to buy the car She said, "Chuck, this you just can't do It costs too much money to bung these custom ers in The times are bad now, things are slowing up You have to take a customer and work them You have to leave Borda explained that he had been to busy to complete an upsheet and protested that what she was doing was wrong She reiterated, Chuck I in doing it This is wrong You do not do this You ve been in the business too long to blow out a customer Borda stormed out, unsuccessfully sought the intervention of the owner, Keyte, and left There is no question but that Respondent requires its salespersons to complete upsheets They are regularly re minded of that requirement and as recently as Septem ber Borda was suspended for 1 day for repeatedly fail ing to comply According to Borda, however it was common for the salespersons to fail to complete them Swenson also acknowledged that other salespersons in cluding Valdez, failed to complete the upsheets and that she spoke to them about it Borda, she said was noton ous in not handing in upsheets and was nonchalant about it 5 Similarly while blowing out a customer is considered a serious offense one that warrants immediate discharge, according to Swenson, former Sales Manager Muffett testified that it happened every day According to Swenson s recollection, a salesman named Cates was fired by another sales manager for blowing out a cus tomer during the period when she was a sales manager Her testimony regarding this alleged incident is not sup ported by any company records but is not contradicted On two other occasions, however, Stan Steven, a sales man, let customers walk without being T 0 d and failed to prepare an upsheet, Steven was given written warn ings, but was not discharged 5 Noting both Swenson s testimony and Borda s I find that it was as Borda claimed common for salesmen to fail to complete upsheets Why else would there be a need for continuously reminding them to do so? 859 Among Respondents other policies or rules are those that require salesmen to accompany purchasers to the gas station so that they can explain the operation of the vehicle Salesman Bensinger violated that rule on more than one occasion and he also misrepresented his reasons for doing so when questioned by management, he was only warned for his infraction When asked why, Swen son testified He made the deals He had the custom ers ' Valdez took a deposit from a customer without the manager s approval and the customer was lost to another dealership, Valdez was warned, but not discharged D Neiman s Discharge John Neiman had been employed by Respondent as a salesman for some months in the summer of 1986, left for a managerial position elsewhere, and returned to Re spondent s employ in mid June 1987 He started out on Imperial's team but, after a dispute with Imperial over the necessity for a credit report on what was to be a cash customer, switched to the team supervised by Muf fett Muffett characterized him as an excellent, better than average salesperson, the best overall on his team During the 4 months with Respondent preceding his dts charge, Neiman was the top salesman on the bonus board twice and fourth among 14 in 1 other month In those months he was among the top producers in nearly every category measured for bonus awards Several employees, Valdez, Christianson, and Ben singer, were hired after Neiman Christianson was hired 3 weeks before Neiman's layoff At least two, Helveston and Stevens, were hired on the same day that he was He regularly outsold each of these other salesmen On November I 1 Neiman was called into Swenson s office and told that he was being laid off because bust ness was slow As he recalled the conversation, Swenson told him that he was selected because he was the last one hired and would therefore be the first one to be fired Swenson did not recall making any statement about se nionty When Neiman said that the level of business was not the real reason, Swenson did not respond In support of Respondents claim that Neiman s layoff was economically motivated Toscano its con troller claimed that he had been reviewing sales in late October For the year, he said, sales were down about 300 units profits were off by 50 percent, and he antici pated that the October 19 stock market crash would ad versely affect future sales At the same time, Respondent had one more manager and one or two more salesmen than it had in the previous year Management initially decided to cut back on the number of managers The leasing manager, Adams, and sales manager Muffett, who were chosen because of their ability to generate sales, were offered sales positions Adams accepted the demo tion Muffett ultimately declined it Around November 1, according to Toscano, Respond ent got the financial statement for October and, notwith standing that the sales in October 1987 were about the same as in October 1986, decided to cutback three people in sales Swenson made the recommendations, al legedly selecting as those to be laid off the ones whom she felt were not doing their best or who were not 860 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD needed in the long run in the dealership She chose Pete Diamond because, she said, he had problems and was on the bottom for sales She chose Joe Cass because she considered him lazy Finally, she chose Neiman because she said, while he got the very good, strong deals he did not go after the smaller, less profitable deals Swenson also alleged that Neiman was not the greatest in follow ing procedures, ' such as accompanying customers to the gas station She offered no records or examples to sup port this She also selected him, she said, because he had previously left for a managers job and she thought he might do so again When she discharged Borda on No vember 10, the number of sales positions to be cut was reduced by one, she decided to retain Joe Cass Since the layoff Respondent has hired seveal sales people, but effort was made to recall Neiman Swenson explained that she had heard that he was employed else where and he did not respond to three advertisements for salesmen that Respondent had placed in the newspa per If he wanted to return, she asserted, he would have let her know E Posttermination Events-Animus About 2 weeks after his discharge, Borda called Re spondent and left a message for D'irnzzio, the leasing manager, to call him His call was returned, however by Paul Miller, the used car manager Borda told Miller that he wanted Miller and Bill Keyte to understand that he had not been a ring leader for the Union Miller re plied that he had heard, or been told, that Borda was a "ring leader, but that he could not recall who had said that In January 1988, while they were attending a wake for Borda s son, Borda told D imzzio that he had not been one of the union organizers According to Neiman D it rizzio said that he knew that and that they knew that D irrizzio then stated, several times, in the presence of Neiman Borda, and Borda s wife that he had repeatedly told Borda that he should not get involved with the Union 6 III ANALYSIS AND CONCLUSIONS Resolution of the General Counsel's 8(a)(3) and (1) al legations turns on the determination of Respondents mo tivation in discharging or laying off Borda and Neiman In such cases, the Board applies the mode of analysis set forth in Wright Line 251 NLRB 1083, 1089 (1980), enfd 662 F 2d 899 ( 1st Cir 1981) See also NLRB v Transpor tation Management Corp 462 U S 393 ( 1983) In Wright Line, the Board stated Respodent argued that his testimony should not be credited because (1) there was no evidence proffered that D imzzio had actually ever told Borda before that date that he should not get involved with the Union and (2) no one would be so insensitive as to make such statements to a bereaved parent at the wake of a child Respondent did not however offer any contradictory testimony and while Respondent points out valid probabilities it was not impossible for D imzzio to have made statements when and where he was alleged to have done so I credit the uncontra dicted credibly offered and mutually corroborative testimony of Borda, his wife and Neiman First, we shall require that the General Counsel make a prima facie showing sufficient to support the inference that protected conduct was a motivating factor in the employer's decision Once this is es tablished, 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 In this case, the General Counsel has shown that the alleged discnminatees had engaged in protected union activity and that that activity was known to the Re spondent The General Counsel has further shown some direct evidence of animus (D irrizzio s statements to Borda that he should have avoided any union activity) and the timing of terminations in close proximity to the protected activity Such timing, particularly when there is also knowledge and animus, raises an inference of dis cnmmatory motivation Bill Fox Chevrolet, 270 NLRB 568, 573 (1984) Most significantly, the General Counsel established that Respondent put forth false and pretextual reasons for the terminations, particularly the termination of Neiman Thus I note that Respondent deemed the ability to sell cars, insurance, financing, and the other services that went along with such sales as the sine qua non of a salesman s desirability Muffett and Adams were offered transfers to sales positions because they generated sales Bensinger was retained, notwithstanding his seniority, which was lower than Neiman s, his repeated failures to comply with Respondents procedures, and his phony ex cuses because he made the deals Yet Neiman one of the leading proponents of unionization, was laid off notwithstanding his outstanding sales record while less senior salesperson less productive salespersons and a salespersons who was deemed lazy" were retained Asked why Neiman and not one of the others was se lected for layoff Swenson explained that Neiman made the big deals, but not the little ones However, the bonus board showed that Neiman was a superior salesman in virtually all the categories considered important enough to be counted by Respondent in awarding bonuses Moreover, Respondent proffered no evidence to docu ment Neiman s alleged failings regarding the less profits ble deals or the following of Respondents procedures Indeed in this regard Swenson faulted Neiman for the same kind of misconduct as had repeatedly been commit ted by Bensinger As noted, Bensinger was not dis charged because he made the deals Additionally, the record establishes that Respondent never recalled Neiman, notwithstanding that job openings arose after his layoff " It would thus appear that Respondent wanted to rid itself of Neiman, not merely reduce its work force I note further that while Respondent alluded to an al leged economic necessity for the layoff of Neiman and others, it failed to sustain its burden of proving that eco nomic necessity through the introduction of any readily available records Uptilt Inc, 276 NLRB 583, 589 (1985) That alleged economic necessity is questionable in light of Toscano s admission that the sales in October 1987 were about the same as those in October 1986 and in light of the hiring of salesperson Gary Christianson ap NORTHEAST LINCOLN MERCURY proximately 3 weeks before the layoffs See Wilco Busi- ness Forms, 280 NLRB 1336 (1986) Finally, I find that Respondent falsely labeled Nei- man's termination as a layoff An economic layoff carries with it an assumption that, when business conditions im prove, the employee will be recalled Subsequent to Nei man s alleged layoff, Respondent hired new salespersons, but did not recall him It is clear that Respondent did not want Neiman in its sales showroom even if he was the best salesman they had Its failure to recall him evidences that the economic layoff was pretextual Based on all the foregoing, I must conclude that Nei man s termination was for blatantly pretextual reasons The assertion of such flase reasons is strong evidence of unlawful motivation York Products, 289 NLRB 1414 (1988), and cases cited therein The General Counsel has established as strong prima facie case that Respondent discriminatorily terminated John J Neiman Inasmuch as Respondents asserted rea sons for terminating Neiman were patently false, I fur ther find that Respondent has failed to rebut that prima facie case Kay Fries Inc, 265 NLRB 1077 fn 2 (1982) Accordingly, I conclude that Respondent discharged John J Neiman because he sought union representation and thereby violated Section 8(a)(3) and (1) of the Act While Respondents motivation for the discharge of Borda is less obvious, I am, nonetheless, convinced that Respondents stated reason for that discharge was also pretextual Thus, Borda was engaged in the union activi ty, his role therein was known to management, and be cause he had agreed to have the union meeting at his tavern, it would have appeared to management that he was one of the leaders in the organizational activity Ad ditionally, there was animus directed at those who en gaged in such union activity, as demonstrated by D'irnz zio's statments and by the discriminatory discharge of Neiman The General Counsel has thus established the requisite prima facie case regarding Borda Moreover, while Borda admittedly had violated two of Respondent's procedures he did so with no loss to Respondent Indeed, by referring Chepigan to another salesman and moving on to the second customer with whom he had been speaking before Chepigan came in, two cars were sold where otherwise only one might have been sold Borda's prior suspension for failing to submit upsheets makes this a close question There is no question but that Respondent considered upsheets to be important How ever Respondent had no formal system of progressive discipline and it cannot be argued that this latest failure required his discharge Indeed, the evidence reflects that Respondent was essentially tolerant of such failings, at least for productive salesmen such as Borda Other sales men, including those who were new to Respondent's sales floor, breached the same upsheet and TO rules and were not discharged Respondent has failed to adequate ly explain the disparate treatment shown by the General Counsel and has therefore failed to sustain its burden of proving that Borda would have been discharged even if he had not engaged in union activity Accordingly, I find and conclude that Respondent dis charged Anthony J Borda in violation of Section 8(a)(3) 861 and (1) of the Act, because he had sought union repre sentation THE REMEDY Having found that Respondent discriminatorily dis charged Anthony J Borda and John J Neiman because they sought to be represented by a union, in violation of Section 8(a)(3) and (1) of the Act, it will be recommend ed that Respondent be ordered to cease and desist there from and to take certain affirmative action designed to effectuate the policies of the Act Having been found that Respondent discharged An thony J Borda and John J Neiman because they had sought union representation, I shall recommend that Re spondent be required to offer them full and immediate reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings they may have suffered as a result of the dis cnmination against them, to be computed in the manner prescribed in F W Woolworth Co 90 NLRB 289 (1950), with interest as computed in New Horizons for the Retard ed, 283 NLRB 1173 (1987) 7 Further, I shall recommend that Respondent be required to remove all references to their terminations from its files and that Respondent notify them, in writing, that evidence of the unlawful discharges will not be used as the basis for future person nel actions against them CONCLUSIONS OF LAW 1 Respondent, Northeast Lincoln Mercury, Inc, is an employer engaged in commerce within the meaning of Section 2(2) (6), and (7) of the Act 2 By discharging Anthony J Borda and John J Neiman because they sought to be represented by a labor organization, Respondent has violated Section 8(a)(3) and (1) of the Act 3 The aforesaid unfair labor practices affect commerce within the meaning of Section 2(2) (6) and (7) of the Act On these findings of fact and conclusions of law and on the entire record I issue the following recommend ed8 ORDER The Respondent Northeast Lincoln Mercury, Inc Philadelphia, Pennsylvania, its officers agents, succes sors, and assigns, shall 1 Cease and desist from (a) Discharging employees because they seek union representation r Under New Horizons interest is 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 8If no exceptions are filed as provided by Sec 102 46 of the Board s Rules and Regulations the findings conclusions and recommended Order shall as provided in Sec 102 48 of the Rules be adopted by the Board and all objections to them shall be deemed waived for all put poses 862 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (b) In any like or related manner interfering with, re straining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Offer Anthony Borda and John J Neiman immedi ate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed, and make them whole for any loss of earnings and other benefits suffered as a result of the discrimination agamst them , in the manner set forth in the remedy section of the decision (b) Remove from its files any reference to the unlawful discharges and notify the employees in writing that this has been done and that the discharges will not be used agamst them in any way (c) Post at its Philadelphia, Pennsylvania facility copies of the attached notice marked "Appendix "9 Copies of the notice, on forms provided by the Regional Director for Region 4, after being signed by the Respondents au thorized representative, shall be posted by the Respond ent immediately upon receipt and maintained for 60 con secutive days in conspicuous places including all places where notices to employees are customarily posted Rea sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re spondent has taken to comply 9 If this Order is enforced by a judgment of a United States court of appeals the words in the notice reading Posted by Order of the Nation al Labor Relations Board shall read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board 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 or dered us to post and abide by this notice Section 7 of the Act gives employees these rights To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec tion To choose not to engage in any of these protect ed concerted activities WE WILL NOT discharge or lay off employees because they seek to be represented by a union WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act WE WILL offer Anthony J Borda and John J Neiman immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed and WE WILL make them whole for any loss of earnings and other benefits resulting from their discharge, less any net interim earnings, plus interest WE WILL notify Anthony J Borda and John J Neiman that we have removed from our files any refer ence to the discharges and that the discharges will not be used against them in any way NORTHEAST LINCOLN MERCURY, INC