Northeast Lincoln Mercury, Inc

National Labor Relations Board - Board Decisions

Feb 7, 1989

292 N.L.R.B. 857 (N.L.R.B. 1989)

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