Merle Lindsey Chevrolet, Inc.

National Labor Relations Board - Board Decisions

Aug 16, 1977

231 N.L.R.B. 478 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Merle Lindsey Chevrolet, Inc. and Indiana Joint
Board, Retail, Wholesale, and Department Store
Union, AFLCIO. Cases 25-CA-7595, 25-CA-
7595-2, 25-CA-7595-3, and 25-RC-6173
August 16, 1977
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
On April 1, 1977, Administrative Law Judge Alvin
Lieberman issued the attached Decision in this
proceeding. Thereafter, Respondent and the Union
filed exceptions and supporting briefs, the General
Counsel filed a brief supporting the Decision, and
Respondent filed an answering brief.
Purs'uant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified below, and hereby orders that the Respon-
dent, Merle Lindsey Chevrolet, Inc., Muncie, Indi-
ana, its officers, agents, successors, and assigns, shall
take the action set forth in the said recommended
Order, as so modified:
1. Substitute the following for paragraph 2(a):
"(a) Offer to Elmer Fugitt and Garland Smith full
and immediate reinstatement to their former posi-
tions or, in the event that said positions no longer
exist, to substantially equivalent positions, without
prejudice to their seniority and other rights and
privileges, and make them whole for any loss of
earnings and other benefits suffered by them because
of the discrimination against them, in the manner set
forth in the section of the Administrative Law
Judge's Decision entitled 'The Remedy.' "
2. Substitute the attached notice for that of the
Administrative Law Judge.
IT IS FURTHER ORDERED that the complaint issued
on April 12, 1976, in this proceeding be dismissed.
231 NLRB No. 69
IT IS FURTHER ORDERED that the representation
election conducted on March 2, 1976, in Case 25-
RC-6173 be, and it hereby is, set aside, and that Case
25-RC-6173 be remanded to the Regional Director
for Region 25 for the purpose of conducting a new
election.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
I Respondent and the Union have excepted to certain credibility findings
made by the Administrative Law Judge. It is the Board's established policy
not to overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
2 We agree with the Administrative Law Judge that by telling employees
he wanted to ascertain and talk about their problems Respondent's
president, Merle Lindsey, violated Sec. 8(aXl) of the Act. Uarco Incorporat-
ed, 216 NLRB I (1974). In that case, the Board stated:
IT]he solicitation of grievances at preelection meetings carnes with it
an inference that an employer is implicitly promising to correct those
inequities it discovers as a result of its inquiries. .... However, it is not
the solicitation of gnevances itself that is coercive and violative of
Section 8(aX I), but the promise to correct grievances or a concurrent
interrogation or polling about union sympathies that is unlawful; the
solicitation of grievances merely raises an inference that the employer is
making such a promise, which inference is rebuttable by the employer.
In the instant case, there is no evidence that Respondent made any
statement or took any action to establish that it was not promising to
remedy grievances and we therefore find that Respondent did not meet its
burden of rebutting the inference.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The Act gives all employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through represent-
atives of their own choosing
To act together for collective bargaining
or other mutual aid or protection
To refrain from any or all these things.
WE WILL NOT question you about your union
membership, activities, or desires.
WE WILL NOT threaten you with loss of wages,
commissions, or other benefits, and WE WILL NOT
reduce your wages, commissions, or other benefits
in order to discourage you from supporting the
Indiana Joint Board, Retail, Wholesale, and
Department Store Union, AFL-CIO, or any
other union.
WE WILL NOT threaten to discharge you or lay
you off for supporting the above-named Union,
or any other union.
478
MERLE LINDSEY CHEVROLET
WE WILL NOT ask you to tell us what your
grievances or complaints concerning your work
are and WE WILL NOT promise to remedy or
correct them in order to persuade you not to
support the above-named Union, or any other
union, or to discourage you from voting for, or
supporting, the above-named Union, or any other
union.
WE WILL NOT fire you, lay you off, suspend
you, discipline you in any way, or do anything
else to your disadvantage because you vote for or
support the Indiana Joint Board, Retail, Whole-
sale, and Department Store Union, AFL-CIO, or
any other union, or because you have not done
so.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of the rights guaranteed them in Section 7 of the
Act.
WE WILL offer Elmer Fugitt and Garland Smith
full and immediate reinstatement to their former
jobs or, if those jobs no longer exist, to substan-
tially equivalent positions, without prejudice to
their seniority or other rights and privileges, and
WE WILL make them whole for any loss of
earnings and other benefits suffered because of
the discrimination against them, at a rate of 6-
percent interest per annum.
WE WILL respect your right to form any union,
to support any union, to help any union, and to
deal with us through any union. WE WILL also
respect your right not to do any of these things,
except as required by law.
All our employees are free, without any objection
from us, to become or remain members of the
Indiana Joint Board, Retail, Wholesale, and Depart-
ment Store Union, AFL-CIO, or any other union, or
not to become or remain members of the Indiana
Joint Board, Retail, Wholesale, and Department
Store Union, AFL-CIO, or any other union, except
as required by law.
MERLE LINDSEY CHEVROLET, INC,
DECISION
STATEMENT OF THE CASE
ALVIN LIEBERMAN, Administrative Law Judge: Pursuant
to a petition filed by Indiana Joint Board, Retail,
I The following unit was agreed upon as being appropnate in the
Stipulation for Certification (G.C. Exh. 44): All new and used car and truck
salesmen employed by the Employer at its Muncie, Indiana establishment:
ou r Ir XCLUDIN(i all office clerical employees. all professional employees, and
all guards and supervisors as defined in the Act and all other employees.
2 G.C. Exh. I(x).
: Objections 18 and 19 deal with speeches made by Respondent's
officials on the day of the election.
Wholesale, and Department Store Union, AFL-CIO
(Union), on December 9, 1975, in Case 25-RC-6173 and a
Stipulation for Certification Upon Consent Election
(Stipulation for Certification) approved on January 21,
1976, by the Regional Director for Region 25 of the
National Labor Relations Board a representation election
was held on March 2, 1976, among certain employees of
Respondent.' Five ballots were cast for the Union, nine
against the Union, and two ballots were challenged.
The Union filed objections to the election which were
investigated by the Regional Director. Following this the
Regional Director issued a report 2 in which he noted that
"the matters alleged in Objections I through 17 are also
alleged as unfair labor practices in [the complaints in 25-
CA-7595, 25-CA-7595-2, and 25-CA-7595-3 ]."
Accordingly, the Regional Director ordered that "a
hearing be conducted to resolve the issues of. . . fact and
credibility raised in . . . Objections I through 17. . . and
Objections 18 and 19." 3 The Regional Director further
ordered that "Cases Nos. 25-CA-7595, 25-CA-7595-2,
25-CA-7595-3 ... and 25-RC-6173 be ... consolidated
for the purpose of hearing, ruling and decision by an
Administrative Law Judge, and that thereafter Case No.
25-RC-6173 be transferred to, and continued before, the
Board."
The hearing in this consolidated proceeding, with all
parties except the Union represented, was held before me
in Muncie, Indiana, on several days between August 3 and
September 16, 1976. In general, the issues litigated were
whether Respondent had violated Section 8(a)(1) and (3) of
the National Labor Relations Act, as amended, and
whether Respondent engaged in conduct warranting the
setting aside of the election. More particularly, the
questions for decision are as follows:
I. Did Respondent violate Section 8(aX1) of the Act by
interrogating and threatening employees; giving them the
impression that their union activity was under surveillance;
and by soliciting and promising to rectify grievances?
2. Did Respondent violate Section 8(a)(3) of the Act by
laying off two employees, Elmer Fugitt and Garland Smith,
and by discharging a third employee, Terry Tarr?
3. Should the Union's objections to the election be
sustained and the election set aside?
Upon the entire record, 4 upon my observation of the
witnesses and their demeanor while testifying, and having
taken into account the arguments made and the briefs
submitted,5 I make the following:
FINDINGS OF FACT 6
I. JURISDICTION
Respondent, an Indiana corporation, is engaged at
Muncie, Indiana, principally in selling at retail, and
servicing, new and used passenger automobiles and trucks,
4 Issued simultaneously is a separate order correcting obvious inadver-
tent errors in the stenographic transcnpt of this proceeding.
5 Although all the arguments of the parties and the authorities cited by
them, whether appeanng in their briefs or made orally at the hearing may
not be discussed, each has been carefully weighed and considered.
6 Respondent's motions made at the conclusion of the hearing, upon
which I reserved decisior.n are disposed of in accordance with the findings
and conclusions set forth in this Decision.
479
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
including vehicles manufactured by the Chevrolet Motor
Division of General Motors Corporation. During 1975, a
representative period, Respondent's gross volume of
business exceeded $500,000. During the same period
Respondent purchased automobiles and related products
valued at in excess of $50,000 from vendors located outside
the State of Indiana. Accordingly, I find that Respondent
is engaged in commerce within the meaning of the Act and
that the assertion of jurisdiction over this matter by the
Board is warranted.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
the Act.
Ill. INTRODUCTION
Briefly, this case is concerned with events occurring
during a campaign mounted by the Union to organize
Respondent's salesmen which was climaxed by its defeat in
a representation election. These included, the complaints
allege, violations of Section 8(a)(1) of the Act by Respon-
dent 7 and violations of Section 8(a)(3) consisting of
Respondent's laying off two salesmen, Elmer Fugitt and
Garland Smith, and its discharging a third, Terry Tarr.
Respondent denies having committed the alleged viola-
tions of Section 8(a)(1) of the Act. Admitting the layoffs
and discharge, Respondent asserts that Fugitt and Smith
were laid off solely because of poor business conditions
and that Tarr was discharged principally because he
referred to another dealer a customer who was sent to
Respondent to buy an automobile.
IV. PRELIMINARY FINDINGS AND CONCLUSIONS
8
A. Respondent's Business and Premises
As found above, Respondent sells new and used
passenger automobiles and trucks. Its premises are located
on South Walnut Street in Muncie, Indiana. On one side of
South Walnut Street, referred to during the hearing as the
new car side, Respondent maintains its general offices and
a showroom where it displays and sells new passenger
automobiles and in which there are desks for salesmen. On
the other side of the street, referred to during the hearing as
the used car side, Respondent stores and sells used
passenger automobiles and new and used trucks. On the
used car side of the street is a building, called, at the
hearing, the used car sales office, in which there are also
desks for salesmen.
7 The nature of these claimed violations appear above in my statement of
the questions for decision.
I The purpose of these findings and conclusions is to furnish a frame of
reference within which to consider the facts relating to Respondent's alleged
unfair labor practices and to the conclusions to which they may give rise. To
the extent that the contentions of the parties relate to the findings and
conclusions made here they will be treated here, although they, as well as the
findings and conclusions. may again be considered in other contexts.
I Findings as to the manner in which Respondent classifies its salesmen
are necessary in order to assess the validity of one of Respondent's defenses
to the complaint's allegation that Elmer Fugitt and Garland Smith,
classified by Respondent as used car salesmen, were laid off in violation of
Sec. 8(a)(3) of the Act. Respondent contends, in this regard, that at the time
of the layoffs its used car business had so fallen off as to require a reduction
When, as is frequently the case, a salesman whose desk is
on the used car side has business to transact on the new car
side he does so at any unoccupied desk on that side.
Similarly, when, as often occurs, a salesman whose desk is
on the new car side has business taking him to the used car
side he avails himself of any vacant desk there.
B. Respondent's Classification of its Salesmen9
Respondent designates its salesmen assigned to desks on
the used car side as used car salesman and those assigned
to desks on the new car side as new car salesman. However,
these designations, as shown by the evidence detailed
below, are misnomers and entirely arbitrary.
Respondent imposes no restriction on salesmen regard-
ing the type of passenger automobiles they may sell, and
salesmen regularly sell both new and used cars regardless
of the location of their desks. Thus, as shown by the
evidence, from January 1, 1975, until May 31, 1976, about
40 percent of all the used passenger automobiles sold by
Respondent were sold by salesmen designated as new car
salesmen. The evidence also shows that in the same period
a substantial percentage, more than 20 percent, of all the
passenger cars sold by salesmen characterized as used car
salesmen were new passenger automobiles.' 0 It is also
significant to note, in this respect, that in 1975 a salesman
referred to by Respondent as a new car salesman sold more
used passenger automobiles than new and that a similar
situation existed during the first 5 months of 1976.
Furthermore, Respondent conducts sales meetings every
morning, except on Saturdays, tI at which virtually the only
matter taken up is the sale of used automobiles. Neverthe-
less, Respondent requires all salesmen, regardless of their
classification, to attend these meetings.
Additionally, from time to time Respondent places
advertisements in a local newspaper offering for sale only
used passenger cars and used trucks. Following a descrip-
tion of the vehicles, the advertisements list the names of all
salesmen, including those designated as new car sales-
men.l2
The final significant item in my determination that
Respondent's designations of its salesmen as either new car
or used car salesmen are misnomers are the business cards
Respondent issues to each salesman. These set forth the
word "Salesman" preceded by the salesman's name, and
the following legend, prominently printed in red: "NEW &
USED CARS [&] TRUCKS." 13
Accordingly, I conclude that the proof does not support
Respondent's classification of the employees on its sales
staff as either new car or used car salesmen. I further
in its used car sales staff, and that Fugitt and Smith were the least senior
used car salesmen in its employ.
t0 G.C. Exhs. 24 and 25. These exhibits were furnished to the General
Counsel by Respondent. The former reports only the sales made by
salesmen who were working for Respondent on December 31, 1975. Because
Elmer Fugitt, designated as a used car salesman whose layoff is alleged in
the complaint as having been violative of the Act, was laid off on December
10, 1975, the number and type of cars he sold in 1975 is not included in G.C.
24.
" Respondent's premises are closed on Sundays.
12 G.C. Exh. 9. Although this exhibit consists of a certified copy of only
one advertisement, it does not appear that it is different, in the respect here
under consideration, from others.
13 G.C. Exh. 42.
480
MERLE LINDSEY CHEVROLET
conclude, on the evidence set forth above, that Respondent
employs only one class of salesmen and that they sell both
new and used automobiles, regardless of where their desks
are lcated or how Respondent refers to them.
C. The Union's Campaign To Organize
Respondent's Salesmen
The Union began its campaign to organize Respondent's
salesmen on December 8, 1975. On this date Donald
Strack, the Union's president, met with salesmen employed
by Respondent, including Elmer Fugitt, Garland Smith,
Terry Tarr,'4 and Gary Bullock.
At this meeting, which was held at the Holiday Inn in
Anderson, Indiana, a municipality near Muncie, Strack
discussed the manner in which those in attendance
"could," as he put it, "get organized." In this connection,
Strack passed out union literature, including handbills
entitled "Do You Know." 15 On the next day, December 9,
Fugitt posted one of these on the wall of Respondent's used
car sales office.
Also at this meeting Strack distributed authorization
cards. Fugitt, Tarr, and Smith signed cards at the meeting.
In addition they took blank cards for the purpose of having
them signed by salesmen who were not present at the
meeting.
Upon the conclusion of the December 8 meeting some
salesmen remained at the Holiday Inn and continued to
talk about their unionization. However, being satisfied that
the Union would not benefit Respondent's salesmen,
Bullock did not participate in this discussion. Instead, he
went home immediately after the meeting was formally
adjourned. A short time later Fugitt, Smith, Tarr, and a few
other salesmen employed by Respondent called at Bul-
lock's home and there spoke to him about joining the
Union.
Additional union meetings were held at various times
until about February 24, 1976. Fugitt and Tarr attended all
and Smith went to some.
On December 11, 1975, Respondent received a letter
from the Union stating that it had "membership cards from
a majority of [Respondept's] employees." 16 The letter also
stated that the Union was desirous of arranging a meeting
to negotiate a contract. A day or so later Respondent
received the Union's formal petition for certification upon
which, as noted earlier, a representation election was held
resulting in the Union's defeat.
After discussing the Union's letter with an associate,
Merle Lindsey, Respondent's president, referred it for reply
to Respondent's lawyer. Having done that, Lindsey left for
Florida on December 14 and did not return until
December 29.
" Tarr was discharged on February 28. 1976. As is the case regarding the
Fugitt and Smith layoffs, Tarr's discharge is alleged in the complaint as
having been in violation of Sec. 8(aX3) of the Act.
I G.C. Exh. 40. This handbill purports to set forth "What employers and
supervisors can SOT do" among their employees during the course of a
union organizing campaign.
I'i G.C. Exh. 26.
D. Bullock's Report to Lindsey About the
December 8 Union Meeting
As found above, Gary Bullock, Elmer Fugitt, Garland
Smith, Terry Tarr, and other salesmen attended the
meeting on December 8, 1975,17 at which the Union
initiated its campaign to organize Respondent's salesmen.
On December 13, 2 days after Respondent received the
Union's request for a meeting to negotiate a contract and a
day before Merle Lindsey, Respondent's president, went to
Florida, Bullock informed Lindsey that he, Fugitt, Smith,
and Tarr, among other salesmen in Respondent's employ,
whom he also named, had attended the union meeting on
December 8. Bullock also informed Lindsey that after the
meeting Fugitt, Smith, and other salesmen came to his
home and sought to persuade him to support the Union.
E. Credibility of Terry Tarr and Garland Smith
Two complaints were issued against Respondent, the
first on January 27, 1976, (January complaint) and the
second on April 12, 1976, (April complaint).'" The January
complaint alleges numerous infractions of Section 8(a)(I)
of the Act by Respondent. These are set forth in 13
separate paragraphs, some asserting multiple violations.
All, except those set forth in paragraph 5(n), which was
added to the January complaint by way of amendment
during the hearing, are attributed to the conduct of Merle
Lindsey, Respondent's president. Paragraph 5(n) refers to
conduct allegedly engaged in by Dan Morris, Respondent's
general sales manager.
The testimony of the witnesses called by the General
Counsel to support the foregoing allegations was denied or
contradicted by Lindsey and Morris. It is apparent,
therefore, that the resolution of these credibility conflicts
will weigh the balance in favor of, or against, the General
Counsel.
The General Counsel called two witnesses to give
evidence concerning Respondent's alleged violations of
Section 8(a)(1) of the Act. One was Terry Tarr; the other
was Garland Smith.
Tarr is a glib young man whose demeanor did not
impress me as being that of a sincere witness. He also
appeared to be willing to stretch or embellish the truth and
to lie as to unimportant, as well as important, matters when
it seemed to serve his purpose to do so. Illustrative of the
former was Tarr's testimony regarding his experience as an
automobile salesman. In this respect Tarr stated that he
had 10 "years of experience ... in the automobile
business." However, the application for employment 19 he
submitted to Respondent on January 23, 1975, shows that
before that date he had less than 4 years of experience in
this field.
Further regarding unimportant matters as to which Tarr
was untruthful was the testimony he gave concerning a
luncheon conference between Elmer Fugitt and Donald
i7 All dates referred to in this section fall within 1975.
i8 Both complaints were heard as a consolidated proceeding. In addition
to dealing with matters related to Sec. 8(a) I ) of the Act, as discussed in the
text, the January complaint is also concerned with the layoff of Elmer Fugitt
and Garland Smith. The April complaint deals only with the discharge of
Terry Tarr.
"i Resp. Exh. 15.
481
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Strack, the Union's president. In this respect Tarr related
that Fugitt and Strack had lunch together preceding the
union meeting on December 8, 1975. Yet, Strack, who had
no reason to deny having had lunch with Fugitt on that
day, testified that he first met Fugitt during the evening of
December 8, immediately before the meeting.
Tarr was equally untruthful regarding important matters.
Thus, despite documentary evidence20 showing that Tarr
was instrumental in having a customer sign his wife's name
on a bank installment contract, Tarr denied having done
so, offering the lame excuse that he did not remember the
transaction.
Finally, in this catalog of instances in which Tarr gave
false testimony, again regarding an important matter, is the
story he told concerning his referral of a customer, Leah
Shanks, who was sent to Respondent to buy a used
automobile, to a used car lot operated by his father. 21 On
direct examination Tarr stated that he did not do so until
after he had shown Shanks two automobiles from Respon-
dent's stock, neither of which satisfied her. On cross-
examination, however, he admitted sending Shanks to his
father's lot before showing her any cars Respondent had
for sale.
Also regarding the Shanks incident Tarr related that
immediately following his discharge he went to Shanks'
home; that while he was there her telephone rang; and that
Shanks picked up the telephone and spoke to the caller in
his presence. Although Tarr was 9 feet from the telephone
over which Shanks talked and was not listening on an
extension, he testified, incredibly in my opinion, that he
identified the voice of the caller as being that of Kim
Pierce, a salesman in Respondent's employ, and that he
heard what Pierce said to Shanks.
For the foregoing reasons I have not placed any reliance
on Tarr's testimony respecting Respondent's alleged
violations of Section 8(a)(1) of the Act unless it has been
corroborated by credible evidence. For the same reasons I
have not credited Tarr's testimony, uncorroborated by
credible evidence, regarding any other allegations of the
complaints except where it contains admissions against his
interest. This being so and, as Tarr was the only witness
called by the General Counsel to support the 8(aX)1)
violations appearing in paragraphs 5(e), (f), (i), and (j) of
the January complaint, those allegations will be dis-
missed.22
As noted above, Garland Smith was the other witness
called by the General Counsel to support allegations of the
January complaint dealing with violations of Section
8(a)(1) of the Act by Respondent. Although, as stated on
brief by Respondent, Smith "exhibit[ed] a hazy memory at
various points in his testimony" regarding dates on which
certain events occurred, he impressed me as being a
truthful witness. Accordingly, I have credited his testimony
20 Resp. Exh. 13.
21 Respondent asserts that this was the principal reason for Tarr's
discharge.
"2 At the end of the General Counsel's case-in-chief, pars. 5(h), (k), and
(m) were dismissed for insufficient proof.
21 Having thus decided to credit Smith and having concluded that Tarr
was not a truthful witness, I will make no further reference to credibility
except when what is involved does not fall within the periphery of my
discussion here. In addition, from time to time testimonial differences may
be mentioned in appropriate footnotes.
in its entirety and discredited Respondent's witnesses
whose testimony was at variance with his, not only with
respect to the allegations of the complaints concerned with
Respondent's violations of Section 8(a)(1), but others as
well.23
V. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts, Contentions, and Conclusions Concerning
Respondent's Alleged Independent 8(a)(1) Violations
The remaining allegations of the January complaint
dealing with Respondent's alleged violations of Section
8(aXl) of the Act involve interrogation, threats, and
soliciting and promising to rectify grievances. Despite the
denials in Respondent's answer, the evidence supports
these allegations.
Thus, at a sales meeting conducted by Respondent on
December 10, 1975,24 a day after the Union's handbill "Do
You Know" 25 was posted on the wall of the used car sales
office, Merle Lindsey, Respondent's president, informed
Respondent's salesmen that Respondent could avail itself
of a flat rate book listing higher repair costs for the used
cars they sold than those appearing in the flat rate book
then in use. 26 Lindsey also announced to the salesmen, as
he testified, that he "wanted to find out what kind of
problems they were having" and that he "would talk to
them concerning such problems."
In accordance with the foregoing announcement Lindsey
spoke to Garland Smith, a salesman, after the December 10
sales meeting. Lindsey inquired as to whether Smith had
any problems. Smith replied, as he related, that he thought
that what Lindsey was "talking about is this union
activity."
Taking advantage of the opportunity thus given him by
Smith, Lindsey asked Smith, as the latter further testified,
"why [he] wanted a union"? 2 7 Smith's response, as he
stated, was that "if [a union] could make [him] more
money, [he] would be interested [in it]."
Several days later, on or about December 15, 4 days after
Respondent received the Union's letter stating that it
represented a majority of Respondent's salesmen, Dan
Morris, Respondent's general sales manager, spoke to
Smith and two other salesmen. On this occasion, as Smith
testified, Morris told the salesmen that "if [they] had any
brains, [they] wouldn't mess with [the Union]" and that if
[they] did get a union in [respondent] would cut inventory
in half and also cut the salesmen in half." 28
At first blush, the question put to Smith by Lindsey as to
his reason for "wanting a union" might be deemed to have
been uncoercive and, hence, not violative of Section 8(a)(1)
24 All dates referred to in this section fall within 1975.
25 G.C. Exh. 40.
26 Flat rate books in use in automobile repair shops set forth the cost of
particular repairs. In computing its profit on the sale of a used car
Respondent adds to the amount it pays for the vehicle reconditioning
expenses, including repair costs listed in a flat rate book.
27 Lindsey denied asking Smith this question.
28 Morris admitted the conversation, but denied making the statements
attributed to him by Smith.
482
MERLE LINDSEY CHEVROLET
of the Act. However, the inquiry was preceded by
Lindsey's threat to reduce the salesmen's earnings29 and
followed by Morris' threat that upon the advent of the
Union Respondent would halve its inventory and dis-
charge half its salesmen. These threats, being inherently
coercive and violative of Section 8(aXI) of the Act,
imparted a coercive nature to Smith's interrogation by
Lindsey. Federal Stainless Sink Div. of Unarco Industries,
Inc., 197 NLRB 489, 495 (1972).
As noted above, the January complaint alleges that in
addition to violating Section 8(a)(1) of the Act by
interrogating and threatening employees Respondent also
violated Section 8(aXl) by soliciting and promising to
rectify grievances. Lindsey's statement to Respondent's
salesmen that he wanted to ascertain, and talk to them
about, their "problems," made a day after the posting of
the Union's "Do You Know" handbill on the wall of
Respondent's used car sales office, thus indicating the
Union's interest in organizing Respondent's salesmen,
constituted in my judgment a solicitation of grievances
coupled with an implied promise to rectify them.
This combination of circumstances is violative of Section
8(a)(1) of the Act. Uarco Incorporated, 216 NLRB 1, 2
(1974). Especially is this so in view of the fact that the
evidence does not disclose that officials of Respondent had
made similar statements in the past. Reliance Electric
Company, Madison Plant Mechanical Drives Division, 191
NLRB 44, 46 (1971), enfd. 457 F.2d 503 (C.A. 6, 1972).
Accordingly, I conclude that Respondent violated
Section 8(a)(I) of the Act by interrogating and threatening
employees and by soliciting and promising to rectify their
grievances.
B. Facts, Contentions, and Conclusions Concerning
Respondent's Alleged 8(a)(3) and (1) Violations
I. Smith and Fugitt
Garland Smith and Elmer Fugitt were hired by Respon-
dent as automobile salesmen, respectively, on August 4 and
September 22, 1975.30 Fred Bolton, another salesman, was
hired on November 3. Fugitt was laid off on December 10
and Smith on January 5, 1976.
As found earlier, Fugitt and Smith attended, and signed
cards during, the union meeting on December 8. On
December 9 Fugitt posted a copy of the Union's "Do You
Know" handbill3' on the wall of Respondent's used car
sales office. Dan Morris, Respondent's general sales
manager, was in that office at the time, but not in the
immediate area of the wall on which Fugitt posted the
handbill.
Also on December 9 Fugitt distributed union literature
he had received at the union meeting the previous day to
several salesmen in Respondent's used car sales office and
2" Inasmuch as the commission received by a salesman for selling a used
automobile consists of a percentage of Respondent's profit on the car (G.C.
Exhs. 16 and 17). if Respondent's profit is reduced by computing the cost of
repairing and reconditioning the automobile on the basis of a flat rate book
listing higher repair costs than the one then in use, the salesman's
commission is correspondingly reduced.
:"' Unless otherwise noted, all dates hereinafter mentioned in this section
fall within 1975.
:" G.(C. Exh. 40.
in its new car showroom and spoke to them about signing
union cards. Morris was in the new car showroom while
Fugitt was doing so.
On the next day, December 10, without any previous
information to him that such action was contemplated,
Fugitt was laid off by Merle Lindsey, Respondent's
president. In laying Fugitt off Lindsey told him, as the
latter testified, that Respondent's "used car sales had been
down for December."
In April 1976 Fugitt came to Respondent's premises to
inquire about commissions he thought were still due him.
While Fugitt was discussing this matter with a clerk in
Respondent's office, Brad Razor, Respondent's new car
sales manager, ordered him to leave. Upon Fugitt's refusal
to do so immediately, Razor took his arm and walked with
him to the showroom door. Criminal proceedings later
brought against Razor by Fugitt growing out of this
incident resulted in Razor's acquittal. In the same month,
April 1976, Fugitt met by chance, and spoke with, Dale
Tyte, district manager for the Chevrolet Motor Division of
General Motors Corporation. 32 During their conversation
Fugitt stated to Tyte, as Tyte related, that "when [he got]
done with Lindsey he will no longer be your dealer here."
Like Fugitt, Smith, on December 9, talked about the
Union to several salesmen on both sides of Respondent's
premises and gave them union cards. On December 13, as
earlier found, Gary Bullock, a salesman in Respondent's
employ who was not in favor of the Union, informed Merle
Lindsey, Respondent's president, that Smith had attended
the union meeting on December 8 and that after the
meeting Smith had come to his house to persuade him to
join the Union.
On December 14, as already noted, Lindsey left for
Florida and did not return until December 29. On
December 24, during Lindsey's absence, Smith started his
vacation. On January 5, 1976, immediately upon returning
from his vacation and without earlier notice to Respon-
dent's salesmen that there would be additional layoffs
following Fugitt's, Smith was laid off by Lindsey.
In laying Smith off Lindsey told Smith that he was doing
so because "business had been slow and four men had not
made their draw that month".33 Smith protested his layoff
and said that "before [he] went on vacation [he] had
already made [his] draw." Answering, Lindsey stated that
in laying Smith off he was giving other salesmen, who had
been with Respondent a longer period of time than Smith
had, "a bigger piece of the pie." At this point in their
conversation Smith adverted to the fact that Bolton had
been hired as a salesman after he had been and asked "why
Bolton was still working and [he] was laid off." Lindsey
a2 It will be remembered that Respondent deals in Chevrolet passenger
automobiles and trucks.
1:' Respondent's salesmen receive what is known as a "draw" against
commission. At the beginning of each year Respondent issues a sales policy
statement to its salesmen (G.C. Exhs. 16 and 17) in which the) are informed
that "any salesman who does not make enough commissions to handle at
least his draw for an) given two month period in a row . . . will be subject
to an indefinite lay off."
483
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
responded that Bolton "was on the new car side and [he]
was on the used."3 4
As already noted, the complaint alleges that by laying off
Fugitt and Smith Respondent violated Section 8(a)(3) of
the Act. Denying this, Respondent contends that the
layoffs were motivated by economic necessity-a reduction
in its used car business, and that Fugitt and Smith were
selected for layoff because they were the least senior used
car salesmen in its employ. Respondent further contends
that the evidence does not establish that it had knowledge
of union activity by Fugitt and Smith before their layoff. I
reject these contentions.
It is well settled that "knowledge such as Respondent
claims it [was not shown to] have is a necessary ingredient
of a violation of Section 8(a)(3) of the Act and must be
shown to have existed before an unfair labor practice
within the meaning of that section can be said to have
occurred." 35 It is equally well settled that such knowledge,
as well as motivation for discharge or layoff, "may be
established by circumstantial as well as by direct evi-
dence". Sam Tanksley Trucking, Inc., 198 NLRB 312, 316
(1972), enfd. 83 LRRM 2409, 71 LC 1 13,762 (C.A. 8,
1973).
In Fugitt's case Respondent's knowledge of his union
activity can be inferred from the suddenness of his layoff
following his engagement in union activity. Thus, Fugitt
attended the union meeting on December 8 and there
signed a union card. On December 9, on Respondent's
premises, he spoke about the Union to Respondent's
salesmen, distributed union literature to them, and posted
the Union's handbill, "Do You Know," on the wall of the
used car sales office. On December 10 he was laid off. Cf.
in this connection Tanksley, supra at 317.
In Smith's case there is in the record direct evidence that
Respondent had knowledge of his union activity before he
was laid off. This is found in the report made to Lindsey,
Respondent's president, by Bullock, a salesman who had
attended the union meeting on December 8, that Smith had
been present at that meeting and had come to his home
after the meeting to persuade him to join the Union.
I find, therefore, that Respondent had knowledge, before
their layoff, that Fugitt and Smith had engaged in union
activity.
The next matter for consideration regarding the layoff of
Fugitt and Smith is Respondent's claim that its sole
motivation for laying them off was the reduction in its used
car business. On brief Respondent argues, concerning this,
that "Fugitt and Smith were laid off because business at
the dealership, especially used car business, was indisput-
ably down . . . In fact, December 1975 and December
1974 were the worst 2 months for used cars in the history of
the Company."
It would be expected that to bolster such an argument
Respondent would have offered its business records in
evidence. However, without explanation, Respondent did
not do this. Its failure to do so leads me to believe that its
:1 The quotations appeanng in the text are taken from Smith's testimony.
Lindsey's version of his conversation with Smith at the time of Smith's
layoff differs from Smith's in that Lindsey made no reference to Bolton.
11 The Pembek Oil Corporation, 165 NLRB 367, 373 (1967), enfd. 404
F.2d 105 (C.A. 2, 1968).
:Is "A litigant's unexplained failure to offer material evidence warrants
records would not have borne out its claim in this
respect.36
Finally, as earlier noted, Respondent contends that it
selected Fugitt and Smith for layoff because they were the
least senior used car salesmen in its employ. This
contention is based on Respondent's designation of its
salesmen as either new or used car salesmen. I have found,
however, that these designations are arbitrary misnomers
having no factual basis. I have also found, in this regard,
that Respondent employs only one class of salesmen and
that they sell both new and used cars.
In view of this it cannot be said that at the time of their
layoff Fugitt and Smith were the most junior employees on
Respondent's sales staff. They were both senior to Bolton,
who was hired as a salesman on November 3, 1975,
whereas Fugitt was hired on September 22, 1975, and
Smith on August 4, 1975.
"[T]he explanation of the [layoffs] offered by the
Respondent [thus] failling] to stand under scrutiny," I find
that it is false. This being the case, an inference can be
drawn which is "unfavorable to respondent." N.L.R.B. v.
Thomas W. Dant, et al. co-partners d/b/a Dant & Russell,
Ltd. 207 F.2d 165, 167 (C.A. 9, 1953).
The extent of the unfavorable inference which can be
drawn in such a situation was spelled out in Shattuck Denn
Mining Corporation (Iron King Branch) v. N.L.R.B. 362
F.2d 466, 470 (C.A. 9, 1966). There it was explicitly stated:
If [the trier of fact] finds that the stated motive for [a
layoff] is false, he certainly can infer that there is
another motive. More than that, he can infer that the
motive is one that the employer desires to conceal - an
unlawful motive - at least where. . . the surrounding
facts tend to reinforce that inference.37
Having found that Respondent's "stated motive" for
laying off Fugitt and Smith "is false," I, as "the trier of
fact," draw the inference that the actual motive for the
layoffs was to discourage membership in the Union. One
need not search far to find "surrounding facts tend[ing] to
reinforce that inference." Regarding Fugitt, it consists of
the suddenness of his layoff, coming 2 days after he started
to engage in union activity. "The abruptness of a [layoff]
and its timing are persuasive evidence as to motivation."
N.LR.B. v. Montgomery Ward & Co., Inc., 242 F.2d 497,
502 (C.A. 2, 1957).
Smith's layoff was less sudden. It was, nevertheless,
equally abrupt.
It will be remembered in this regard that on December
13, a day before Lindsey, Respondent's president, went to
Florida, he was informed by Bullock that Smith had
attended the union meeting on December 8 and had come
to his home after the meeting to persuade him to join the
Union. Had Lindsey not been busy preparing to go to
Florida the next day it is quite likely, in the circumstances,
that he would have laid Smith off on that very day.
the inference that, if he adduced the evidence, it would not support his
position." Bechtel Corporation, 141 NLRB 844. 852 (1963).
37 The principle thus enunciated in Shattuck Denn was specifically
adopted by the Board in Atlantic Metal Products, Inc., 161 NLRB 919, 922
(1966).
484
MERLE LINDSEY CHEVROLET
On December 24, while Lindsey was still in Florida,
Smith began his vacation. Immediately upon its end and
Smith's return to work on January 5, 1976, Lindsey laid
Smith off. As in Fugitt's case, the abruptness and timing of
Smith's layoff also furnishes persuasive evidence of its
unlawful motivation.
Accordingly, I conclude that by laying off Fugitt and
Smith Respondent violated Section 8(aX3) and (1) of the
Act.
2. Tarr
Terry Tarr was employed by Respondent as a salesman
from May 1972 until October 1974 and again from January
1975 until his discharge on February 28, 1976. Like Fugitt
and Smith, Tarr attended union meetings, signed a union
card, and talked about the Union to Respondent's
salesmen. Respondent does not deny having had knowl-
edge of Tarr's union activity before his discharge.
Tarr's first period of employment with Respondent was
terminated by his resignation following a fight with his
father-in-law on Respondent's premises. Notwithstanding
this, Tarr's stepfather, who operates a used car lot and to
whom Respondent wholesales automobiles,3 8 prevailed
upon Merle Lindsey, Respondent's president, to rehire
Tarr.
During Tarr's last period of employment by Respondent
he was not a model salesman. Among other things, he was
frequently late in arriving at Respondent's daily sales
meetings and with apparent equal frequency he absented
himself from them and from breakfast meetings sponsored
by banks with which Respondent does business. He failed
to wait on customers properly and promptly. He came to
work with the odor of alcohol on his breath, resulting in
complaints to Lindsey by customers. He persuaded a
customer to sign his wife's name to a bank installment
contract. He failed to pay a debt to a jeweler who was a
customer of Respondent, thereby embarrassing Respon-
dent.
In addition, as Lindsey testified, Tarr "did not conform
to company policy in many areas." Tarr's lack of
comformity prompted Respondent's officials to talk to
Tart to "attempt," as Lindsey further testified, "to get him
to improve his work habits [, but they] were unsuccessful."
The principal cause of Tarr's discharge on February 28,
1976, and which was, as Lindsey related, "the straw that
broke the camel's back" was Tarr's referral of a lady, Leah
Shanks, who was sent to Respondent to buy a used car by a
business acquaintance of Lindsey, to his stepfather's used
car lot.3 9
The General Counsel suggests that the reasons assigned
by Respondent for Tarr's discharge were pretexts seized
upon by Respondent to rid itself of an employee because
he was a protagonist of the Union. I do not agree.
:'x As explained by Kenneth Maynard. Respondent's used car sales
manager at all material times, a wholesale transaction "is a sale made by
{one automobile dealer] to [another ] dealer."
:"! Lindsey. Respondent's president, testified that Respondent also took
into account in discharging Tarr his "poor work performance land]
conduct."
"' See. in this regard. Vermeer Manufacluring Company,, 187 NLRB 888,
892 (1971).
11 A.L R.. ..4. . lcGahev Sr. el al. d b a Columbus Mfarble Works,
233 F.2d 406. 413 (.A. 5. 1956).
Had Respondent been looking for a pretext to mask
Tarr's discharge for supporting the Union it would not
have had to wait until the Shanks matter came to light. If
an excuse were in fact being sought by Respondent to
remove Tarr from its sales staff because he was an adherent
of the Union it could have been found long before then.
Instead of merely talking to Tarr in an effort to improve
his work habits, Tarr could have been discharged for any of
the items set forth earlier in the compendium of Tarr's
faults as an employee, or for some other reason which
could have been trumped up by Respondent. Respondent
not having taken advantage of any of these as an excuse to
discharge Tarr as soon as his union activity came to its
attention, as was the case regarding Fugitt and Smith, I
cannot accept the General Counsel's pretext suggestion. 40
"An unlawful purpose is not lightly to be inferred. In the
choice between lawful and unlawful motive, the record
taken as a whole must present a substantial basis of
believable evidence pointing toward the unlawful one."41
Upon careful analysis, I do not find such a substantial
basis to be present in connection with Tarr's discharge.
Accordingly, I conclude that Respondent did not violate
Section 8(a)(1) or (3) of the Act by discharging Tarr. The
complaint issued on April 12, 1976, will, therefore, be
dismissed.
Vl. THE OBJECTIONS TO THE ELECTION 42
The Board has held that the critical period within which
objectionable conduct will be deemed to affect the results
of an election starts on the date on which the representa-
tion petition is filed. Goodyear Tire and Rubber Company,
138 NLRB 453, 454 (1962). It has also been held that
"conduct violative of Section 8(a)(1) is, afortiori, conduct
which interferes with the exercise of a free and untram-
meled choice in an election." Dal-Tex Optical Conpany,
Inc., 137 NLRB 1782, 1786(1962).
The petition pursuant to which the election was held was
filed by the Union on December 9, 1975. Respondent's
violations of Section 8(a)(1) of the Act began, as I have
found, with Respondent's threat on December 10, 1975, to
reduce the earnings of its salesmen and ended with
Garland Smith's discharge on January 5, 1976. This being
the case, I conclude that the election held on March 2,
1976, must be set aside.43
Accordingly, my order will provide that that election be
set aside and that a new election be conducted.
VII. THE EFFECT OF RESPONDENT'S UNFAIR LABOR
PRACTICES UPON COMMERCE
Respondent's unfair labor practices occurring in connec-
tion with its operations set forth in section 1, above, have a
close, intimate, and substantial relationship to trade,
42 As noted at the outset of this Decision, the Regional Director
"consolidated for the purpose of heanng, ruling and decision" the Union's
objections to the representation election conducted on March 2, 1976, with
the complaints issued in this proceeding.
43 Implicit in this conclusion are rulings sustaining the Union's
objections to the election insofar as they track the allegations of the
complaints found to have been supported by the evidence. In view of this, it
is unnecessary to rule on the Union's other objections.
485
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
traffic, and commerce among the several States and tend to
lead to disputes burdening and obstructing commerce and
the free flow of commerce.
VIII. THE REMEDY
Having found that Respondent engaged in unfair labor
practices within the meaning of Section 8(a)(l) and (3) of
the Act, my Order will require Respondent to cease and
desist therefrom and to take such affirmative action as will
effectuate the policies of the Act.
Concerning the affirmative action to be required of
Respondent to remedy its unfair labor practices, Respon-
dent argues that, even if Elmer Fugitt's layoff is found to
have been violative of the Act, his reinstatement should not
be ordered because of his altercation with Brad Razor,
Respondent's new car sales manager, and his statement to
Dale Tyte, district manager for the Chevrolet Motor
Division of General Motors Corporation, that "when [he
got] done with Lindsey he will no longer be your dealer
here." These, Respondent contends, render Fugitt unfit for
reinstatement. I do not agree.
"Activities which .... warrant withholding the remedi-
al provisions of the Act [include] such conduct as violence
or threats of violence, seizure of property, attempts at
unilateral dictation of terms of employment or other
usurpation of working time, interference between an
employer and its customers while continuing to work,
engaging in harassing tactics [and] intermittent work
stoppages to win unstated ends ... " Boeing Airplane
Company, Seattle Division 110 NLRB 147, 150 (1954). 44
Neither Fugitt's altercation with Razor, nor his statement
to Tyte falls within the foregoing rule.
Accordingly, by way of affirmative action, Respondent
will be required to offer immediate and full reinstatement
to Fugitt and Garland Smith and to make them whole for
any losses they may have suffered by reason of their layoff.
Any backpay found to be due them shall be computed in
accordance with the formula set forth in F. W. Woolworth
Company, 90 NLRB 289 (1950), and shall include interest
in the amount and manner provided for in Isis Plumbing &
Heating Co., 138 NLRB 716 (1962).
Upon the basis of the foregoing findings of fact, and
upon the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2) of the Act and is 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. By the following conduct Respondent has engaged
in, and is engaging in, unfair labor practices within the
meaning of Section 8(a)(l) of the Act.
(a) Coercively interrogating an employee concerning his
union sentiments. I
44 Upon review of Boeing Airplane Company, 238 F.2d 188 (C.A. 9, 1956)
the court of appeals did not disturb the Board's rule, as set forth in the text,
for determining the circumstances warranting the withholding of the
remedial provisions of the Act. The court of appeals merely disagreed with
its application to the facts in the case before it.
4' In the event no exceptions are filed as provided by Sec. 102.46 of the
(b) Threatening employees with loss of benefits if they
supported the Union.
(c) Threatening to discharge employees for supporting
the Union.
(d) Soliciting grievances from employees and promising
to remedy them in order to induce employees to refrain
from supporting the Union.
4. By laying off Elmer Fugitt and Garland Smith,
thereby discouraging membership in the Union, Respon-
dent has engaged in and is engaging in, unfair labor
practices within the meaning of Section 8(a)(3) and (1) of
the Act.
5. Respondent did not engage in unfair labor practices
within the meaning of Section 8(a)(3) or (1) of the Act by
discharging Terry Tarr.
6. The unfair labor practices engaged in by Respon-
dent, as set forth in Conclusions of Law 3 and 4, above,
affect commerce within the meaning of Section 2(6) and (7)
of the Act.
Upon the foregoing findings of fact, conclusions of law,
and upon the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following:
ORDER 45
The Respondent, Merle Lindsey Chevrolet, Inc., Muncie,
Indiana, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating employees concerning their
attitude toward, relationship to, knowledge of, activities on
behalf of, or regarding any other matter relating to Indiana
Joint Board, Retail, Wholesale, and Department Store
Union, AFL-CIO, or any other labor organization.
(b) Threatening employees with discharge, loss of
benefits, or any other form of reprisal, or effectuating any
such threats, for joining, assisting, or in any manner
supporting Indiana Joint Board, Retail, Wholesale, and
Department Store Union, AFL-CIO, or any other labor
organization.
(c) Soliciting grievances from employees and explicitly or
impliedly promising to remedy or adjust them in order to
interfere with the right of employees freely to choose a
bargaining representative, or to induce employees to reject,
or to refrain from activities in support of, Indiana Joint
Board, Retail, Wholesale, and Department Store Union,
AFL-CIO, or any other labor organization.
(d) Discouraging membership in Indiana Joint Board,
Retail, Wholesale, and Department Store Union, AFL-
CIO, or any other labor organization, by discharging or
laying off employees, or by discriminating in any other
manner against employees in regard to hire or tenure of
employment or any term or condition of employment.
(e) In any other manner interfering with, restraining, or
coercing employees in the exercise of their right to self-
organization, to form, join, or assist labor organizations, to
bargain collectively through representatives of their own
Rules and Regulations of the National Labor Relations Board, the findings.
conclusions, and Order herein shall, as provided in Sec. 102.48 of the Rules
and Regulations, be adopted by the Board and become its findings,
conclusions, and Order, and all objections thereto shall be deemed waived
for all purposes.
486
MERLE LINDSEY CHEVROLET
choosing, or to engage in other concerted activities for the
purpose of collective-bargaining or other mutual aid or
protection as guaranteed in Section 7 of the National
Labor Relations Act, as amended, or to refrain from any or
all such activities, except to the extent that such right may
be affected by an agreement requiring membership in a
labor organization as a condition of employment in
conformity with Section 8(aX3) of the Act.
2. Take the following affirmative action which, it is
found, will effectuate the policies of the Act:
(a) Offer to Elmer Fugitt and Garland Smith immediate
and full reinstatement to their former jobs, without
prejudice to their seniority or other rights or privileges, and
make them whole, in the manner set forth in the section of
this Decision entitled "The Remedy," for any loss of
earnings they may have suffered by reason of their
unlawful layoff.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, 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.
(c) Post at its premises in Muncie, Indiana, copies of the
attached notice marked "Appendix." 46 Copies of said
notice, on forms provided by the Regional Director for
46 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
Region 25, after being duly signed by Respondent's
representative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or covered
by any other material.
(d) Notify the Regional Director for Region 25, in
writing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
IT IS FURTHER ORDERED that the representation election
conducted on March 2, 1976, in Case 25-RC-6173 be, and
the same hereby is, set aside and that Case 25-RC-6173 be,
and the same hereby is, remanded to the Regional Director
for Region 25 of the National Labor Relations Board for
the purpose of conducting a new representation election at
such time as he deems that circumstances will permit the
free choice of a collective-bargaining representative by the
employees concerned.
IT IS FURTHER ORDERED that paragraphs 5(e), (f), (i), and
(j) of the complaint issued on January 27, 1976, be, and the
same hereby are, dismissed.
IT IS FURTHER ORDERED that the complaint issued on
April 12, 1976, be and the same hereby is, dismissed.
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
487