Honda of Haslett

National Labor Relations Board - Board Decisions

Feb 14, 1973

201 N.L.R.B. 855 (N.L.R.B. 1973)

HONDA OF HASLETT 855
Joseph J. Lachniet d/b/a Honda of Haslett and Local
Union No. 580, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Help-
ers of America (Ind.). Case 7-CA-9140
February 14, 1973
DECISION AND ORDER
BY MEMBERS JENKINS , KENNEDY, AND
PENELLO
On September 25, 1972, Administrative Law Judge
Joseph I. Nachman issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief and Respon-
dent filed objections to the General Counsel's
exceptions and a brief in support thereof.
Pursuant 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,
findings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order, as
herein modified.
The Administrative Law Judge found, and it is not
excepted to, that Respondent violated Section 8(a)(3)
and (1) of the Act by laying off two active prounion
employees because of their union activity and further
violated Section 8(a)(l) by a series of threats of
reprisal against employees for supporting the Union
and promises of benefit in return for withholding
such support. The Administrative Law Judge further
found, also without exception, that the Union made
a demand for recognition in an appropriate unit at a
time when it was the duly designated majority
representative of the employees in that unit. Respon-
dent refused to accept the Union's authorization
cards as proof of its majority and has not recognized
or bargained with the Union.
General Counsel excepts solely to the failure of the
Administrative Law Judge to recommend that
Respondent be ordered to recognize and bargain
with the Union as an appropriate remedy under
N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575.
We find merit in this exception.
Within a period of about 2 months after the
Union's demand for recognition, Lachniet, Respon-
dent's owner and manager, engaged in eight separate
conversations with four different employees in which
he made various unlawful threats and promises, as
found by the Administrative Law Judge, and another
supervisor threatened several employees that La-
chniet would retaliate against them if they supported
the Union . In an ensuing representation election, the
employees voted, by a margin of 8 to 4, in favor of
the Union. The election was set aside , however,
because of electioneering in the polling area by an
employee, who was an observer for the Union, and a
disturbance outside the polling area which was
audible within the polling area.
Three days after the election, on October 21, 1971,
Lachniet laid off two of the leading union activists,
Kling and Gorman, assertedly for lack of work.
These layoffs, as found by the Administrative Law
Judge and not excepted to, were discriminatorily
motivated and in violation of Section 8(a)(3) and (1).
Kling was recalled on a part-time basis at the end of
November and began working "pretty steady" again
in the latter part of December until he quit in
February 1972. Gorman was not recalled until
February 1972.2 A supervisor told another employee
in December 1971 that there were lots of people he
would hire before he would call Gorman back
despite Gorman's seniority. In January 1972, the
supervisor told the same employee that Gorman had
been working behind Lachniet's back and "rocking
the boat." Employee Brook, found by the Adminis-
trative Law Judge to have been speaking on behalf of
management, told Kling, the other discriminatee,
that the reason Kling was not getting as much work
as he might have, when he was recalled on only a
part-time basis, was that Lachniet had to fight back
any way he could after the men "stabbed him in the
back." Lachniet himself, some time after the election,
referred an employee to a situation where another
employer had become aware of a union attempt to
organize his employees and had fired all the
employees. Lachniet said he wished he had the same
opportunity. Later in the same conversation, the
employee told Lachniet that the atmosphere in the
shop was bad and Lachniet replied, ". . . well, if you
think it is bad now, just wait." As with the other
violations found herein, no exceptions were taken to
the Administrative Law Judge's conclusion that these
conversations, in their respective contexts, were
threats to retaliate against employees because of their
union activity.
In evaluating the seriousness of the unfair labor
practices in terms of their lingering effect upon the
employees' opportunity for exercising a free choice,
first importance must be assigned to the discrimina-
I In sec 'C, 1, b, 7 of his Decision, the Administrative Law Judge filed on December 6, 1971. A complaint was issued by the Regional
inadvertently states that "Lachmet was laid off." " Lanchniet" should be Director on January 25, 1971, alleging discriminatory discharges of Kling
changed to Gorman." and Gorman.
2 A charge alleging that the layoffs were because of union activity was
201 NLRB No. 128
856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tory layoffs, occurring, it will be remembered,
directly after the employees had voted in favor of the
Union in the October 1971 election. Conceding that
discrimination against an employee is a serious
unfair labor practice, the Administrative Law Judge
concluded nonetheless that, "under the particular
facts of this case ," the election process has not been
so contaminated as to preclude the holding of a fair
rerun election. He did not identify the "particular
facts," but we suppose one significant fact in his
evaluation was that the discriminatees had been
reinstated. This in itself, or in the circumstances of
this case, does not persuade us that a bargaining
order is not justified.3 For one thing, neither
discriminatee was fully reinstated until a charge was
filed with respect to the layoffs and the second
reinstatement came only after the complaint herein
issued . Also, Respondent used the fate of the two
discriminatees, in the incidents related above, as
examples of what happens to employees who engage
in union activity.
The discriminatory layoffs and many of the threats
and promises came from Lachniet himself. In a unit
ranging in size from approximately 12 to 16 employ-
ees the unfair labor practices were, by any standard,
pervasive, and were well calculated to come to the
attention of virtually all the employees. Taken
altogether, they are most likely to have created a
coercive atmosphere which conventional Board
remedies may not adequately dissipate so that a fair
election can be held with reasonable certainty.4 In
fact, the postelection unfair labor practices alone,
which include the discriminatory layoffs, might well
justify a bargaining order.
We cannot accept the Administrative Law Judge's
virtual writing off of the preelection unfair labor
practices as having no relevance in determining the
appropriate remedy. That a majority of the employ-
ees voted for the Union does not necessarily mean
that Respondent's prior threats and promises had no
effect upon the employees or that such impact as
they had vanished without any lingering residue once
the ballots were counted. Under the circumstances
attending the election, we simply cannot tell what
effect the unfair labor practices had at the time. But
we do know that as soon as Lachniet saw the
3 See Scott Gross Company, Inc. 197 NLRB No 75, fn. 2.
4 Hende! Manufacturing Company, Incorporated, 197 NLRB No 179
5 Hende! Manufacturing Company, Incorporated supra The General
Counsel did not specifically except to the failure of the Administrative Law
Judge to find that a violation of Sec 8(a)(5), which was alleged in the
complaint, had occurred. But we find that his exceptions, as amplified by
his supporting brief , include the contention that a Sec. 8(aX5) bargaining
order should have been granted . Thus, after quoting from Gissel Packing
Company, supra, that a bargaining order would be necessary "even in the
apparent union victory in the election , he laid off
Kling and Gorman , and the connection between
these events must not have been lost on the other
employees , especially since that connection was
alluded to by representatives of the management.
These postelection layoffs and other unfair labor
practices were well calculated to remind the employ-
ees of Respondent 's earlier threats and the total
impact of Respondent's conduct thus impressed
upon the employees in unmistakable fashion the
consequences of unionization.
We conclude , in summary, that Respondent's
unfair labor practices are of such gravity and
pervasiveness that the Union 's card majority pro-
vides a more reliable test of the employees ' desire
than another election is likely to, and that, in order to
protect the statutory rights and interests of the
employees , Respondent 's refusal to bargain should
be found violative of Section 8(aX5) and ( 1) of the
Act and a bargaining order should issue.5
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board hereby adopts as its Order the
recommended Order of the Administrative Law
Judge, as modified below, and orders that Respon-
dent, Joseph J. Lachniet d/b/a Honda of Haslett,
Haslett , Michigan, his agents, successors , and as-
signs, shall take the action set forth in the Adminis-
trative Law Judge's recommended Order as herein
modified:
1. Add the following as paragraph 1(h) and
renumber the present paragraph 1(h) accordingly.
"(h) Refusing to bargain collectively with the
above-named Union as the exclusive bargaining
representative of the employees in the following unit:
All employees including salesmen , countermen
and mechanics, but excluding office clerical
employees , casual employees , confidential em-
ployees, and all guards and supervisors as defined
in the Act."
2. Add the following as paragraph 2(b) and
renumber the present paragraphs accordingly.
"(b) Upon request, bargain collectively with Local
absence of an 8(aX5 ) violation" where the unfair labor practices are
sufficiently coercive , and then contending that the instant case falls within
that category, the General Counsel's brief continues
At the very lean, such pervasive unfair labor practices would warrant
the Board's finding that the possibility of erasing their effects by tradi-
tional remedies of holding a fair rerun election would be slight or
negligible and consequently the purpose of the Act would be better
effectuated and served by relying on► the employees' sentiment already
expressed in the cards..
HONDA OF HASLETT 857
Union No. 580, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America (Ind.), as the exclusive representative of the
employees in the appropriate unit described above
with respect to rates of pay, wages, hours of
employment, and other conditions of employment
and, if an understanding is reached, embody such
understanding in a signed agreement.
3. Substitute the attached notice for the Adminis-
trative Law Judge's notice.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
I WILL NOT discharge, layoff, or otherwise
discriminate against employees because they have
helped or supported a union.
I WILL bargain collectively on request with
Local Union No. 580, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and
Helpers of America (Ind.), as the exclusive
representative of all my employees in the appro-
priate unit described below with respect to wages,
hours of employment, and other conditions of
employment and, if an agreement is reached, I
will sign it. The appropriate unit is:
All employees including salesmen , counter-
men and mechanics, but excluding office
clerical employees , casual employees , confi-
dential employees , and all guards and
supervisors as defined in the National Labor
Relations Act.
After a full trial in which all sides had the
opportunity to present their evidence, the National
Labor Relations Board has found that I violated the
National Labor Relations Act, and ordered that I
post this notice. I intend to carry out the Order of the
Board, the judgment of any court, and to abide by
the following:
As the Board has found that I violated the law
when I laid off Michael Gorman and Frederick J.
Kling, I will make up to each of them the pay they
lost, together with interest at the rate of 6 percent per
annum.
Section 7 of the National Labor Relations Act
gives all employees these rights:
To organize themselves
To form, join, or help unions
To act together for collective bargaining
or other mutual aid or protection
To refuse to do any or all of these things.
I WILL NOT do anything to interfere with my
employees in the exercise of the aforementioned
rights.
I WILL NOT tell employees that to organize is
the same as sticking a knife in my back.
I WILL NOT tell employees that if they organize
into a union they will lose employee benefits.
I WILL NOT tell employees that by working for a
union they were only looking for trouble and
would wind up hanging themselves.
I WILL NOT threaten to fight back and retaliate
against employees because they helped a union.
I WILL NOT promise benefits to employees to
induce them to stop supporting a union, or
threaten action against them if they continue to
support a union.
I WILL NOT threaten employees that their
working conditions would be worse if they are
represented by a union.
JOSEPH J. LACHNIET
D/B/A HONDA OF
HASLETT
(Employer)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office , 500 Book Building, 1249 Washington
Boulevard, Detroit, Michigan 48226, Telephone
313-226-3200.
DECISION
STATEMENT OF THE CASE
JOSEPH I . NACHMAN, Administrative Law Judge: This
case tried before me at Lansing, Michigan, on April 25-27
and June 5-8, 1972, with all parties present and duly
represented, involves an amended consolidated complaint'
pursuant to Section 10(b) of the National Labor Relations
Act, as amended (herein the Act), which alleges in
substance that Joseph J. Lachniet d/b/a Honda of Haslett
(herein Respondent or Company), during an organization-
al campaign among his employees by Local Union No.
580, International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America (herein the
Union) interrogated his employees concerning their union
activities and desires ; threatened them with loss of
1 Issued January 25, 1972, and amended April 11, 1972, based on a
charge filed December 6, 1971, and amended January 19 and February 4,
1972.
858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employment and other reprisal if they continued to assist
and support the Union ; promised benefits if they refrained
from assisting or supporting the Union ; changed various
conditions of employment and withdrew certain employee
benefits with the purpose of undermining the Union's
support, and as reprisal against employees because of their
assistance and support of the Union ; undertook to make
supervisors of certain employees for the purpose of
gerrymandering them out of the unit, to thus deprive them
of their right to vote in a Board election ; discriminatonly
laid off two employees and constructively discharged a
third because of their assistance and support of the Union;
and refused to bargain with the Union which had been
designated as the collective -bargaining representative of
his employees in an appropriate unit, thereby violating
Section 8(a)(1), (3), and (5) of the Act. By answer
Respondent admitted certain allegations of the amended
complaint, but denied the commission of any unfair labor
practice . Although I find a number of the allegations of the
complaint totally unsupported, by the evidence , I nonethe-
less find and conclude , for reasons hereafter more fully
stated , that Respondent violated Section 8(a)(1) and (3) of
the Act in certain respects , and recommend an appropriate
remedial order . I further find and conclude that the
evidence fails to establish that Section 8(aX5) was violated,
or that under all the circumstances a bargaining order is
appropriate.
At the trial all parties were permitted to introduce
relevant and material evidence , to examine and cross-
examine witnesses , to argue orally on the record, and to
submit briefs. Oral argument was waived. A brief submit-
ted by Respondent has been duly considered. The General
Counsel at the conclusion of the trial stated that the case
was too complex for oral argument, that he would have to
file a brief, and subsequently applied for and was granted
an extension of time for that purpose . However, no brief
has been received , nor have I been advised of any reason
for the General Counsel's failure to submit a brief. The
lack of a brief has made the task of preparing this decision
more difficult and time consuming than usual because at
the trial the General Counsel urged certain propositions
without stating the basis or theory for his position; in other
instances when asked to supply authority for a particular
position or theory, the General Counsel stated that the
matter would be covered in his brief . The result is that on a
number of issues seemingly litigated by the General
Counsel , some of which I am dismissing, I might have been
persuaded to a contrary view had I but been furnished with
argument or authority to support the point . It would seem
that if a case is worth the time necessary to prepare for and
spend 6 days in trial, it should be worth the relatively small
amount of additional time required to prepare and submit
a brief . And what I have said in this regard applies with
2 No issue of commerce is presented . The complaint alleges and the
answer admits facts which establish that jurisdictional element. I find those
facts to be as pleaded . Although in his answer Respondent denied that the
Union was a labor organization within the meaning of the Act , at the outset
of the trial the parties stipulated such to be the fact , and on the basis of such
stipulation, I so find.
3 There is another operation known as Meridian Cycle Supply in which
Lachniet has an interest , and which operates on the same premises, but is
not involved in this case . This enterprise sells parts and accessories for
equal force whether the decision not to file a brief is that of
trial counsel , or that of his Regional Office superiors.
Upon the pleadings, stipulations of counsel , the evi-
dence, including my observations of the demeanor of the
witnesses while testifying, and the brief submitted by
counsel for Respondent, I make the following:
FINDINGS OF FACT2
A. Background and Nature of Respondent's
Operations
Joseph J. Lachniet, as a sole proprieter, has been
engaged since January 1, 1970, in the retail sale and
servicing of motorcycles, snowmobiles, and accessories.
The operation3 is divided into three departments : sales,
service , and parts . Lachniet has designated a manager for
each department . Whether such managers are supervisors
within the meaning of the Act is, to the extent necessary,
hereafter considered . Ronell Brook is Lachniet 's secretary
and performs various responsible office duties. She carries
keys to the establishment, makes deposits, and signs
checks . She worked for the Company before Lachniet
became the owner in January 1970. The relationship is
obviously close and she is clearly regarded by Lachniet as a
valued and trusted employee . Sometime in early August,4
the Union began a campaign to organize Respondent's
employees. Although Brook and Lachniet both testified
that they were unaware of such organizational activity
until they read the Union's demand letter of August 12
(Brook on August 14, and Lachniet on August 16), as
hereafter more fully set forth, I do not credit their
testimony in that regard . Rather, I credit the testimony of
Gorman that in complaining to Brook regarding working
conditions he told her that the men might have to organize,
to which Brook replied that the men should be on
Lachniet's side instead of going to the Union, and that
later the same day overheard a conversation between
Brook and Hickson in which Brook stated , "I know you
guys are going to get a union ," to which Hickson replied,
"We are not going to get a union Ronnie , we have a
union," as well as the testimony of Blessing that he told
Brook, and also Lachniet when the latter telephoned from
military camp, on or about August 12 or 13, that the
employees were trying to organize.5
Lachniet is under a military obligation pursuant to which
he was called up for 2 weeks summer encampment to begin
on August 1. Before leaving for this duty Lachniet, on July
30, called a meeting at which he addressed all employees
then at work. Lachniet informed the employees of his
impending 2 weeks' absence on military duties; that while
he was away the business would operate as usual with the
department heads handling their respective areas, but that
if any problem arose which they felt they could not handle,
motorcycles and snowmobiles to dealers. Employees of Respondent are
frequently assigned to work , at times for extended periods , for Meridian
Cycle Supply. However , at such times they remain on Respondent 's payroll
and Meridian reimburses Respondent for the labor costs involved.
I This and all dates hereafter mentioned are 1971 unless otherwise
indicated.
S The testimony of Brook and Lachniet denying that they had such
conversations , I do not credit.
HONDA OF HASLETT 859
they should consult with Ronell Brook, who would have
authority to hire and fire, and if the problem was one that
she could not resolve, he would be in touch with Brook
each day via telephone and he would make the necessary
decisions Additionally, Lachniet told the employees that
beginning the following Monday, all employees would
have to punch the timeclock which had been installed some
2 weeks before but not yet put to use. When several
mechanics questioned why they should have to punch the
clock because they worked on a commission basis,
Lachniet replied that the honor system for keeping hours
had not worked, and that it would be necessary in
connection with a wage plan he was putting into effect,
which is next discussed.
At this meeting Lachniet also referred to a notice he had
posted that spring or summer, which related to an average
wage to be paid to commission mechanics dunng the
winter or slow season . Lachniet stated that he was posting
a revised notice which he considered necessary to clarify
and make some slight changes in the notice theretofore
posted, and he then explained the new notice.? This caused
commission mechanic Gorman to inquire whether , because
he returned to work for Respondent late in May after an
extended absence, his average would be determined on the
basis of the entire 7-month period, or by just the period
that he was actually employed since May. Lachniet assured
Gorman that the latter was the correct formula.
B. The Organizational Campaign and the Union's
Majority
Early in August, while Lachniet was on military duty, a
group of employees contacted the Union, and on August
11 or 12, a number of them signed union cards. The parties
stipulated that when the Union made its demand for
recognition, hereafter more fully discussed, there were 16
employees in the unit, and that the Union had in its
possession nine authorization cards purportedly signed by
the employees. It was further stipulated that on eight of
these cards the signatures were genuine , but left the
General Counsel to his proof with respect to a card bearing
the purported signature of Arlan Thrasher. Called as a
witness by the General Counsel, Thrasher testified that he
signed the card in question, and that he did so because he
6 This is the version of the statement as testified to by Lachniet and
Brook . The employees had a somewhat different version of what Lachniet
said, but I do not regard the difference as requiring any credibility
resolution . For example , Gorman testified that Lachniet informed the
employees at this meeting that in his absence Ronell Brook "would fill his
shoes," that she would have any power he had , and that he had given her
authority to hire, and if need be to fire anyone
r I deem it unnecessary to compare the two notices. It is sufficient to
note that , under the plan as revised , the commission mechanics would be
paid during the peak season , which was defined as running from March 1 to
October 1, a flat rate commission of $5 per hour, plus one-half of the
premium for health insurance , and that during the winter or slow season,
the period of which was not defined in either notice, an hourly wage equal
to his average hourly commission earnings during the peak season ; that to
qualify for the winter wage the employee must have worked the regular 9
a.m. to 6 p.m. daily schedule during the peak season , with a mimmum of 40
hours a week ; and if the foregoing work schedule was not maintained, the
commission mechanic would be paid for work during the winter or slow
season , on an hourly basis, at the minimum wage of $160.
8 The complaint alleges and I find that a unit of "All employees
including salesmen , countermen and mechanics employed by Respondent,
wanted to be represented by the Union. Respondent
introduced no evidence tending to contradict Thrasher's
testimony in that regard , or that the card was for any other
reason not a valid designation of the Union. Accordingly, I
find Thrasher's card to be a valid designation of the Union
and also that, when Respondent received the Union's
demand for recognition on August 14, the latter was the
duly designated majority representative of the employees
in an appropriate units
C. The Interference, Restraint, and Coercion
The General Counsel contends that both before and
after the Board-conducted election , hereafter referred to,
Brook and George Potchen , who was service manager from
November 8 to late January 1972, as supervisors and
agents of Respondent ,s as well as Lachniet himself, made
certain statements to employees which constituted viola-
tions of Section 8(a)(1) of the Act. For the purposes of
clarity, these statements will be set forth separately for the
period prior to the election on October 18, and those which
occurred after that date.
1. The preelection period
a. By Brook
1. During Lachniet's absence on military duty, Norman
Kelly 10 engaged in conversation with Brook . Although the
conversation did not begin as one concerning the Union, it
later turned to that subject with Brook stating that
employees who had signed union cards, instead of going to
Lachniet with their problems, were in effect sticking a knife
in his back; that things would be a lot worse if the Union
got in than if it did not, because some benefits the
employees then enjoyed would be gone, and it would be
just like working in a factory. I'
2. On another occasion , Brook went into the service
areas and joined in conversation the men were having
about the Union. After some discussion Brook stated, in
effect, that the men were looking for trouble, and would
wind up "hanging themselves," and as she was leaving the
area remarked, "Lachniet is not going to like this one
bit." 12
3. In late August, employee Kling, in talking with
but excluding office clerical employees , casual employees , confidential
employees , guards and supervisors as defined in the Act," is a unit
appropriate for the purposes of collective bargaining.
9 The authority of Brooks and Potchen to bind Respondent is hereafter
considered.
io At the time Kelly held the title "Service Manager ." In the
representation proceeding , hereafter detailed , the Regional Director ruled
that Kelly was not a supervisor within the meaning of the Act, and that his
ballot, which Respondent had challenged , should be counted . Respondent
stated at the trial that he did not agree with this determination by the
Regional Director, and in his brief asserts that Kelly as well as Jones with
respect to whom the same point is raised should be found by me to be
supervisors. Although the issue is litigable in this proceeding (see
Amalgamated Clothing Workers, etc. Y . N.L.R.B., 36$ F.2d 898 (C.A.D.C.),
and Suburban Homes, Inc, 173 NLRB 497, In . I), no evidence was offered
by either party, dealing with the supervisory status of Kelly or Jones. My
conclusions in that regard are hereafter stated.
it Based on the credited testimony of Kelly . Although Brook denied
talking to some other employees about the Union , she did not deny she had
such a conversation with Kelly.
12 Based on the credited testimony of Bemis . Although , as hereafter
(Continued)
860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brook, expressed his opinion that one Szilvagi (not
involved in this case), had been unfairly discharged, and
gave her his reasons for that view . Brook replied, in
substance, that Lachniet had to fight back any way he
could, after what the employees had done to him.13
b. By Lachniet
1. A day or two after Lachniet returned from military
service, he called James Jones14 out for a private
discussion. Lachniet began by stating that he was certain
that Jones was aware of things going on in the shop; there
would be a lot of changes; Jones should consider his
position and career with the Company; he was considering
appointing a store manager and asked if Jones wanted to
remain a salesman or wished to move up in the organiza-
tion ; and suggesting that Jones carefully consider the
matter. 15
2. Shortly after returning from military service, in a
conversation with Norman Kelly,16 concerning the Union,
Lachniet told the latter that if the Union got in things
would be a lot worse than they were at the time. And in a
subsequent conversation with Kelly about October 1,
Lachniet repeated his statement that things would be a lot
worse for everyone, if the Union got in.17
3. Also shortly after returning from military duty,
Lachniet called employee Blessing is outside the building
for a discussion. Lachniet opened the conversation by
stating , " I guess you have been expecting me to talk to
you," and when Blessing asked if it was about the Union,
Lachniet replied in the affirmative . Blessing told Lachniet
that the latter had no cause for worry as far as he was
concerned, because he was opposed to the Union. Lachniet
replied that he was glad to hear this and added , I imagine
you know that ". . . for some people in this business there
will be a place , and for other people there will not be."
Lachniet then instructed Blessing to purchase the necesi-
sary material and enclose the parts , area with a window
through which the mechanics would be furnished the parts
they might require to perform their duties . Blessing did as
directed but the evidence is uncontradicted that the
window was never put to the use indicated , and the
indicated , I have not credited Bemis in other aspects of his testimony, I do
credit him in this regard because I deem it consistent with other testimony
in the case , and because Brook did not deny it.
13 Based on the credited testimony of Kling and the admission of Brook.
The latter admitted that Kling complained to her about Szilvagi and that
she replied , "what did you expect after what you fellows did to Lachniet "
14 Jones had the title "Sales Manager " As to his employee status, the
same issue is presented as in the case of Kelly See fn. 10, supra. This issue is
hereafter decided.
15 Based on the credited testimony of Jones . Lachniet gave no testimony
on this conversation , although he did admit that he talked with each of his
department managers immediately after his return from military duties.
16 Regarding Kelly's employee status see fn . 10, supra
it Based on the credited testimony of Kelly . Lachniet , although
admitting that he discussed the Union with Kelly , denied that he made such
statements to him . I credit Kelly.
is Blessing at the time was on loan to Meridian Cycle, see fn. 3, supra
19 Based on the credited testimony of Blessing Lachniet admitted that
he talked with Blessing shortly after his return from military duty because
he regarded him as the most knowledgable employee in Meridian Cycle,
and that Blessing informed him that he (Blessing) was opposed to the
Union . He denied that he had any other discussion with Blessing
concerning the Union , and specifically denied that he told Blessing that
mechanics continued to obtain the parts they needed by
going into the parts area.19
4. Shortly after employee Gorman first came to work in
October 1969, he asked Lachniet why the Honda Company
had closed a parts warehouse it formerly maintained at
Racine , Wisconsin. Lachniet replied that Honda had
closed the warehouse rather than permit it to be organ-
ized .20 Continuing this conversation Lachniet told Gorman
that if his employees ever decided that they wanted a union
they could have one, but that if this ever came to pass he
could make life unpleasant for them ; that the employees
now had the use of motorcycles, used the shop and tools to
repair their cycles, could purchase parts and accessories at
cost, but that all this could cease if a union came in.
Additionally, Lachniet told Gorman that if a union ever
did come in he could enclose the parts department and put
a window in so that mechanics would have to wait to be
served by a parts clerk , instead of going into the area to get
their own parts, and that this would be time consuming
and affect the earnings of mechanics who work on a
commission basis 2i As above found, shortly after Lachniet
returned from military duty, and pursuant to his instruc-
tions to Blessing , the parts window was installed , but the
commission mechanics have not been restricted to obtain-
ing parts through it. Lachniet testified that the parts
window was not put to use because he heard rumors that
the employees regarded its installation a nonunion ploy.
5. At a later time not specifically fixed by the evidence,
but clearly prior to the election , Lachniet again talked with
Blessing. On this occasion he told the latter that he had
plans looking toward the erection of a new building next
door that would be occupied by Meridian Cycle, and if
that came to pass he (Blessing) would become manager of
Meridian.22
6. In the late summer ,23 employee Gorman, a commis-
sion mechanic , complained to Lachniet about the unavaila-
bility of a special tool management normally supplied.
Lachniet agreed that the tool should have been available
and promised to get it during the approaching winter.
Gorman remarked that the availability of the special tool
next winter "doesn't help my average now."24 To this
some people would have opportunities and that others would not. I credit
Blessing
20 Lachniet admitted that Gorman asked this question of him, but
testified*that he told Gorman that although the warehouse was no longer a
parts distribution center , it had not been closed , but had been converted
into a training center , and denied that he mentioned the subject of a union
I credit Gorman.
Si As indicated , Lachniet denied making such statements , but I have
credited Gorman As this conversation occurred in 1%9, it is outside the
10(b) period , and I shall not find it to be a violation of the Act. However, it
is appropriate to consider Lachniet 's remarks at that time as throwing light
on his motive in installing a parts window immediately following his return
from military service.
n Based on the credited testimony of Blessing . As indicated, Lachniet
denied that he had any conversation with Blessing concerning the Union,
except as stated above.
za As the event occurred after the hearing on the representation petition,
which Gorman attended , but before election , the Decision and Direction
having issued on September 21, 1 fix the date as indicated.
24 This refers to Respondent 's proposal , mentioned above , to compen-
sate mechanics during the winter season at an hourly rate equal to their
average hourly earnings during the summer.
HONDA OF HASLETT
Lachniet replied, "A lot of things are going to happen that
are going to hurt your average." 25
7. On Friday or Saturday before the election on
Monday, October 18, Gorman approached Lachniet and
asked the latter why the idea of a union bothered him so
much. Lachniet replied that the idea did not bother him,
that the men could have a union if they wanted it, and
added that a union would have nothing to say about
layoffs. Gorman replied that he had no need to worry
because he had an agreement with Lachniet for steady
employment during the winter. Lachniet replied that he
would not want to influence Gorman's vote in the
upcoming election, "but we will all know more about it
next week.26 Three days after the election , namely on
October 21, Lachniet was laid off, as hereafter more fully
set forth.
2. The postelection period
a. By Brook
1. On an occasion in December, Kling complained to
Brook about not getting as much work as he felt he had
been promised . Brook replied to the effect that Lachniet
had to fight back any way he could after the men "stabbed
him in the back ," as they did.27
b. By Lachniet
1. About mid-November after an argument with then
Service Manager Potchin concerning which Blessing
complained to Lachniet, the latter invited Blessing to
accompany him to a nearby restaurant to discuss the
matter.28 There Blessing complained that Potchen had
refused to permit him to bring his motorcycle into the shop
and work on it himself, as all employees had done in the
past. Lachniet replied that Potchen ran things differently
than his predecessor, that some of his rules were probably
extreme , and that he might have to change them. Blessing
then asked Lachniet about the rule which had theretofore
existed, permitting employees to take time off to attend
motorcycle races. Lachniet replied that he would have to
look into that. Blessing asked the status of the plan to erect
the building next door to house Meridian Cycle, to which
Lachniet replied that it was "bogged down," and he did
not know what would happen. At this point Lachniet
25 Based on the credited testimony of Gorman and employee James, who
overheard the conversation . Lachmet admitted Gorman raised the question
of special tools with him, but claimed that this was at the meeting he called
just before leaving for his military duty, and testified that nothing further
was said after he promised to acquire the tools the following winter.
26 Based on the credited testimony of Gorman . Lachmet admitted that
Gorman asked him what he had against unions, but claims that this
occurred after the election. He admits that he told Gorman that he had
nothing against unions, and that he did not want to influence his vote, but
claimed that nothing else was said in this conversation I do not credit
Lachniet's version of this incident.
27 Based on the credited testimony of Kling Brook did not deny the
statement Kling attributed to her.
28 Blessing fixed the time of this conversation as late October. while
Lachmet fixed it as in November. As the discussion obviously took place
after Potchen became service manager , which was on November 7, 1 find
that it occurred after that date, and hence was after the election
29 Based on the credited testimony of Blessing Lachniet admitted that
he talked with Blessing at the restaurant , but claimed that he arranged the
861
became quite angry and began berating certain employees,
particularly Hickson and Jones . He also referred to a
situation in Pontiac where a union had attempted to
organize a shop, and when that employer became aware of
the activity he fired all the employees , and that he
(Lachniet) wished he had the same opportunity. On the
way back to the shop from the restaurant , Blessing told
Lachniet that the atmosphere in the shop was bad, and that
it was no longer a pleasant place to work. To this Lachniet
replied, ". . . well if you think it is bad now, just wait." 29
c. By Potchen
1. A few days prior to December 13, James, who had
been theretofore laid off, visited Respondent 's premises
and was told by Lachniet to report back for work on a
certain day. Sometime thereafter (apparently after Decem-
ber 22, when Bemis ceased to be employed), James
commented to Acting Service Manager Potchen that as
there was no longer a full-time mechanic employed, it was
time for Potchen to recall Gorman, because the latter was
next in seniority. Potchen replied that there were lots of
other people he would hire before he would can Gorman
back, but did not give James any reason for this position.
About January 20, 1972, James Jones also had a conversa-
tion with Potchen regarding the further employment of
Gorman. Potchen told Jones that Gorman had been
working behind Lachniet's back, was "rocking the boat"
and "making waves," and making the operation more
difficult than it had to be30
3. Alleged changes in working conditions
1. Since Lachniet became the owner of the business in
January 1970, a coffeepot was available on the premises
where all employees could obtain coffee as frequently as
they desired, free of cost . From time to time because of
remodeling or other changes in the premises , the location
of the coffeepot changed , but coffee was always available
to the employees, as indicated . Sometime in late August,
the coffeepot was moved from the service area, where it
had theretofore been kept, to a location in the sales area,
and the General Counsel contends that this was done in
reprisal against the employees for their having engaged in
union activity . The uncontradicted testimony of Brook in
this regard, and which I credit, is that the coffeepot was
meeting because he was dissatisfied with the tatter's job performance and
wanted to discuss that problem with Blessing. He admitted making
derogatory remarks about Hickson and Jones, but denied that he made any
statement comparing working conditions in the future with those then
existing . I credit Blessing.
30 Based on the credited testimony of James and Jones . Potchen
admitted discussing Gorman with both James and Jones . With respect to
James, Potchen claimed that the conversation occurred early in December,
when Kling and Bemis both of whom had seniority over Gorman were
working . The record shows , however, that Kling was laid off on October 21,
recalled on November 26, laid off again after working 3 days, and thereafter
again called back , apparently about December 7. The employment of Bemis
ceased on December 22 . Potchen additionally claimed that his conversation
with Jones was prompted by the fact that the latter was about to take over
as temporary service manager, and he was filling Jones in on things the
latter should know. Why Jones had to know the things Potchen was stating,
the latter did not explain . The supervisory status of Potchen is hereafter
considered.
862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
moved for two reasons : ( 1) because the service area was
being rearranged , there no longer seemed to be a suitable
place there for the pot to be located; and (2) as she had the
primary responsibility for making coffee and seeing that it
was always available, she moved it to a point in the sales
area which was closer to her work station.
2. For some years Respondent has maintained a soft
drink dispensing machine on the premises . By using a key
to the machine, which was always available, all employees
were permitted to take soft drinks from it whenever they
wished, and without cost. Sometime in 1970 or early 1971,
the owner of the building which Respondent occupies,
acquired an electric refrigerator, and having no need for it
at the time, obtained permission from Lachniet to store it
on Respondent 's premises . Some employees connected the
refrigerator up, and the men kept it filled with soft drinks
which Lachniet supplied without cost to the men. Shortly
after Lachniet returned from military service , the refrigera-
tor was removed from the premises, and the General
Counsel contends that this action was taken to retaliate
against the employees for their union activities. After
removal of the refrigerator, free soft drinks were still
available to the employees from the machine, as before, the
only change being that they had to get the key to open the
door to the dispensing machine instead of merely opening
the refrigerator door. Lachniet testified, and in that regard
I credit his testimony, that the refrigerator was removed
from his premises because the owner thereof desired to give
it to his nephew for use by the latter in a veterinary
establishment he was opening , and requested that the same
be surrendered to him for that purpose.
3. The evidence shows that prior to the Union's
demand for recognition, Respondent stocked for sale to
customers certain magazines catering to motorcycle and
motorcycle racing enthusiasts , which employees were
permitted to read , as well as catalogues of motorcycle parts
and accessories , and permitted his employees to order such
parts or accessories at reduced prices. The General
Counsel contends that, following the Union's demand for
recognition, Respondent, in reprisal for the union activities
of the employees, caused the aforementioned material to
be removed from the premises and to be thereafter
unavailable to employees. Lachniet credibly testified that
in the summer of 1971, he discovered that both customers
and employees were taking magazines from the rack
without paying for them; and that because the activity thus
became unprofitable the sale of magazines was discontin-
ued. With regard to the parts and accessory catalogues,
Lachniet credibly testified that because of the change of
location and extensive remodeling of his office and the
service areas where the catalogues were kept, and to
prevent damage to the material , the catalogues, as well as
other books and records pertaining to his business, were
removed to his home ; when the remodeling was completed
all material was returned to his business premises , and the
catalogues were placed in filing cabinets located in his
office where they were during all business hours, available
to the employees for their use. Even while the catalogues
were at his home, according to Lachniet, whom I credit in
that regard, had any employee requested a particular
catalogue , it would have been brought to the shop for his
use, but that no such request was received . There is no
evidence that at any time after the Union 's recognition
demand any employee was prevented from or denied the
opportunity to purchase parts and accessories on the same
terms and conditions that such purchases were made prior
to the Union's recognition demand.
4. The complaint alleges, and the General Counsel
contends, that Respondent on November 8, for the
purpose of retaliating against employees , changed working
conditions by the act of George Potchen (who became
service manager on November 7, 1971, and continued as
such until late January 1972), in promulgating rules
prohibiting employees from ( 1) taking time off to attend
motorcycle races; (2) working on personal vehicles during
working hours ; (3) using company owned tools at any
time ; and (4) using company facilities to work on personal
vehicles on days off . The evidence adduced by the General
Counsel to support the aforesaid allegation was given by
employees Blessing and James.
Blessing credibly testified that in a conversation with
Lachniet, set forth in greater detail supra he complained to
the latter that Potchen had promulgated shop rules
pursuant to which he refused to permit Blessing to work on
his own motorcycle which he had brought to the shop for
the purpose, as he had frequently done in the past , and that
Lachniet responded that Potchen ran things differently
than former Service Manager Kelly, that some of Potchen's
rules were probably extreme, and that he (Lachniet) would
probably have to change them . Additionally Blessing then
asked Lachniet about Potchen 's rule prohibiting time off to
attend motorcycle races, and the latter replied that he
would have to think about that . James merely testified that
Potchen informed him of the existence of such rules and
required him to sign a copy as evidence of notice . There is
no evidence that James , or any employee other than
Blessing , ever requested or was denied the right to work on
his motorcycle on company property. Although, as
indicated, Lachniet denied that he discussed these rules
with Blessing, he admitted that Potchen prepared a set of
work rules , with some of which he agreed and others he
disagreed , and that such rules were posted until he
(Lachniet) took them down.
4. The representation proceeding
On August 16, the Union filed its petition seeking
certification as the collective-bargaining representative of
Respondent's salesmen , countermen, and mechanics (Case
7-RC-10737). After a formal hearing , the Regional
Director issued a Decision and Direction of Election on
September 21, disposing of a number of contested issues,
and pursuant to which an election was held on October 18.
Respondent 's petition for Board Review of the Decision
and Direction of Election was denied as presenting no
substantial issue warranting review.
Following the election, the tally of ballots disclosed that
five votes were cast for the Union , four against , with three
challenged ballots.31 Additionally , Respondent duly filed
and served timely objections to conduct affecting the
31 The challenges were to the ballots of James Jones, Steve Hickson, and alleged supervisory status.
Norman Kelly. Each was challenged by Respondent on the ground of
HONDA OF HASLETT
results of the election. Pursuant to notice, a hearing was
held before a hearing officer on November 18, to take
evidence bearing on the challenges and objection, and on
December 15, the hearing officer filed his report. The
Regional Director on January 24, 1972, issued a Supple-
mental Decision, Order, and Direction of Second Election
concluding (1) that the three challenges be overruled, and
the ballots counted, with a revised tally of ballots to issue;
and (2) that certain objections filed by the Employer32 be
sustained, and that if the revised tally indicated that a
majority of the valid votes counted had not been cast for
the Union, the results be certified, but if such tally revealed
that a majority of the valid votes has been cast for the
Union, that the election conducted on October 18 be set
aside and a second election conducted at a time and place
to be fixed in a notice of election to issue thereafter.33
5. The alleged 8(a)(3) violations
a. Michael Gorman
Gorman was first employed at the shop in October 1969,
when Lachniet was general manager of the operation, and
before he became its owner. At that time Gorman worked
only 4 to 6 weeks as a helper in the parts department,
following which he was laid off for lack of work. As
heretofore found, it was during this period that Lachniet
told Gorman that Honda had closed the warehouse rather
than permit it to be organized, and what he (Lachniet)
could do if a union organized his shop. Gorman returned
to work for Respondent in February 1970 and worked as a
commission mechanic until October of that year when he
left to go to California. Before leaving, Gorman was told
by Lachniet that he would be welcomed back the next
season, if he wished to return. While in California, Gorman
was visited by Lachniet who explained his plan to expand
the size of the shop, as well as his plan to pay commission
mechanics during the slow season the average of their
earnings during the peak season. As a result of this
conversation Gorman, on February 9, telephoned Lachniet
and told the latter that he would be returning to work in
late May. Lachniet replied that he would be happy to have
Gorman return. Based on this information Lachniet told
then Service Manager Kelly that Gorman, then unknown
to Kelly, would be returning to work and that he was "an
exceedingly good and fast mechanic."
As planned, Gorman returned to work for Respondent
in the latter part of May. Shortly thereafter Gorman
initiated discussions with the men regarding the desirabili-
ty of a union. It was Gorman who urged upon employees
that a union be contacted; it was he who first visited the
Union, obtained the authorization cards, and circulated
them among the employees, and after they were signed he
returned them to the Union. That both Mrs. Brook and
32 Objections (a) and (b), which alleged that a unit employee threatened
another close to and within hearing of the polling area , and that the Union's
observer and other unit employees engaged in conversation in the polling
area while other employees were preparing to vote.
33 The revised tally of ballots, issued after the challenged ballots were
counted, disclosed that the Union prevailed in the election by a vote of eight
to four. Because the amended complaint (based on the Union's amended
charge filed February 4), alleged a violation of Sec . 8(aX5), and as remedy
863
Lachniet knew that Gorman was an ardent union support-
er is made plain by their conversations with him which are
set forth in detail in the section hereof dealing with the
8(a)(1) findings. As there indicated, one of such conversa-
tions took place on October 15 or 16, just 3 days prior to
the election on October 18, when Gorman acted as the
Union's observer at the election. Three days later, on
October 21, Lachniet told Gorman that he was laid off for
lack of work. At the time of the layoff Gorman was and
had for some time been working on a commission basis, 9
hours a day, 6 days per week, as had the other commission
mechanics. Although Lachniet and former Service Manag-
er Kelly both testified that mechanical work was falling off
at the time of Gorman's layoff, no records were produced
by Respondent to establish that such was the fact, and if so
the extent of such reduction. Moreover it appears that in
November, Lachniet hired two or three new employees to
assemble motorcycles.34 Although Gorman had done
assembly work while employed by Respondent, Lachniet
admitted that he did not recall Gorman for that work.
In February 1972, Gorman received a telephone call
from Griffis, who had on February 1 succeeded Potchen as
service manager, offering Gorman reemployment. The
latter asked if the terms of such employment would be the
same "as before all the union business started." Griffis
stated that it would; that until March 21, he would get an
hourly rate equal to his average hourly earnings during the
preceding peak season, and after March 21 would work on
commission. Gorman accepted and returned to work in the
late days of February, and was so employed when this trial
concluded.
b. Frederick J. Kling
Kling was initially hired by Respondent in February
1971, and worked as an assembler, at an hourly rate of pay.
Within a month or 6 weeks, he was assigned to work as a
commission mechanic. Respondent raises no contention
that Kling's work performance was other than satisfactory.
Kling worked with Gorman in contacting the Union and in
getting the employees to sign union cards. As in the case of
Gorman, Kling was laid off on October 21, allegedly for
lack of work, but no business records were introduced to
support that claim. At this time Kling's work schedule was
9 a.m. to 6 p.m., 6 days a week, and he was compensated
on a commission basis . Although , as indicated , Kling had
experience as an assembler, Respondent hired two or three
new employees for that work, but did not recall Kling for
over a month. However, on November 26, and from time
to time thereafter, Kling was recalled for periods of 1 to 3
days to work as a mechanic. From the latter part of
December, until he quit on February 26, 1972, Kling
worked "pretty steady."
for which the General Counsel seeks a bargaining order, a second election is
being held in abeyance pending the outcome of this proceeding.
34 The motorcycles are shipped disassembled, packed in cartons, and a
trained person is required to assemble them . During the winter months a
substantial number of motorcycles are assembled in anticipation of the peak
season when according to Lachniet 's affidavit as many as 200 motorcycles a
month are sold.
864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
c. Glen Bemis
Bemis began working for Respondent in June 1969, as a
commission mechanic, and apparently continued such
employment without interruption35 until December 22, at
which time he was the most senior commission mechanic
in Respondent's employ. The evidence is undisputed that
on the last mentioned date Bemis terminated his employ-
ment, but the General Counsel contends that, under the
circumstances, Bemis was in fact constructively dis-
charged. The evidence is also clear that for the major
period of his employment Bemis had a record of reporting
late for work. Thus, although shop hours were from 9 a.m.
to 5 or 6 p.m. Bemis, with a substantial degree of
frequency, reported as late as noon, and at times later, but
this appears to have been tolerated by Respondent,
presumably because Bemis was paid on a commission
basis.
Bemis was present when Lachniet, as detailed above,
addressed his employees just prior to leaving for his
military duties, telling them of the installation of the
timeclock which all employees were to punch when
reporting for or leaving work, and about the plan to pay
the commission mechanics an average wage during the
slow season, for which to qualify the mechanics would
have to work the regular schedule of 9 a.m. to 6 p.m., and
at least 40 hours a week. Bemis admitted that Lachniet
stated on this occasion that the commission mechanics
would have to use the timeclock in order to prove that they
had worked the 40-hour week . Although Bemis testified
that neither he nor the other mechanics punched the
timeclock prior to his injury on October 31, the timecards
in evidence show that with an occasional exception, all of
them, including Bemis, punched the timeclock regularly.
Following his injury, Bemis returned to work on
December 7. The timecards in evidence show that of the 13
working days between December 7 and his last day of
work on December 21, Bemis never checked in on time,
and on only 4 days was he less than an hour and a half
late.36 When Bemis reported on December 7, at 11:30 a.m.,
Potchen, who had by then become the service manager,
told Bemis that the workday began at 9 a.m., and that the
proper scheduling of work and having it completed at the
time promised the customer demanded that all mechanics
report promptly at the starting hour. Bemis replied that he
understood, and that he would be in at 9 a.m. the next day.
However, on December 8, Bemis reported for work at 1:42
p.m., and Potchen again reprimanded him for his tardiness.
On this occasion Bemis plugged his ears with raw cotton
pretending not to hear what Potchen said, and repeatedly
asked that Potchen repeat. On December 9, Bemis reported
at noon and Potchen told him that he was discharged and
to get his tools. Bemis replied that only Lachniet could fire
Week ending Date in Out
Dec. Tues.12/7 117 o 9a0
Wed. 12/8 1:42 5:54
Thur. 12/9 12:00 6:00
Dec. 17 Frt. 12/10 9:12 5:12
Sat. 12/11 10:42 5:24
Mon. 12/13 10:24 2:54
Tues. 12/14 • •
Wed. 12/15 9:36 5:48
Thur. 12/16
Dec. 24 Fri. 12/17
Sat. 12/18
Mon. 12/20
Tues. 12/21 9:18 •
Wed. 12/22 •
him. Potchen then took Bemis to Lachniet's office, the
latter asked Potchen to leave, saying he wished to talk to
Bemis alone . Lachniet told Bemis that the latter was one of
his most senior employees and would hate to see him leave,
and asked if Bemis would sincerely try to be in for work by
9 a.m.37
On December 11, 12, and 13, Bemis clocked in 9:12,
10:42, and 10:24, respectively, and worked those days,
except that on December 13, he clocked out at 2:54 and
did not return for the remainder of the day. There is no
evidence as to the reason for this. Potchen testified credibly
that he said nothing to Bemis on either of these days
because things were very busy and he was only glad that
Bemis was there at all. Potchen testified that on December
14, Bemis reported for work about 10 a.m., but before he
could punch in, Potchen reprimanded him for leaving the
preceding day at 2:54, and coming in that morning at 10,
and asked Bemis just what his problem was. Bemis replied
that he was tired. Potchen then told Bemis that if he was
tired it would be best if he went home and rested up, and
when he felt that he could report at 9 and work a full day
that he could return. Bemis thereupon left the premises,
but returned on December 15, better than a half hour late
and worked through the day without incident. On the next
4 workdays (December 16-20; the 19th being a Sunday),
Bemis did not report for work at all, nor did he
communicate with Respondent. When testifying, Bemis
gave as a reason for this that having been sent home on the
14th, he assumed there was no work for him, and that he
was awaiting a call from Respondent that there was work.
Why he reported on the 15th and again on the 21st, Bemis
did not explain.
On December 21, although having received no call from
Respondent, Bemis went to work, reporting at 9:18. It was
on this day that Potchen informed Bemis that, it being the
first day of winter, Respondent's wage policy for the slow
season was in effect, but that as Bemis had not worked the
as Except for a period of about 5 weeks from October 31, when hC
sustained a broken hand while engaged in motorcycle racing, until he
recovered and returned to work on December 7.
36 The workweek in Respondent 's shop starts Friday morning, and ends
at the close of business the following Thursday . The timecards show the
following with respect to Bemis' hours of work , an asterisk indicating that
there is no entry on the card.
37 The finding as to what occurred in Lachniet 's office on this occasion is
based on the uncontradicted testimony of Bemis . Lachniet gave no
testimony on this incident . Bemis testified that he gave no response to
Lachniet's suggestion , but I do not credit his denial in this regard , because I
deem it most unlikely that he would remain silent under such circumstances,
and not promise Lachniet that he would make reasonable efforts to be on
time . Although I do credit Bemis to the extent indicated , his testimony in
general with respect to the days he worked and the events that occurred in
the period of December 7-21 are so completely at variance with the
timecards in evidence that I must regard his as an unreliable witness in that
respect . There is no evidence that either Bemis or Lachniet informed
Potchen of what occurred in Lachniet 's office.
HONDA OF HASLETT
necessary daily or weekly hours he did not qualify under
that policy and would have to elect whether he wished to
work strictly on commission or at the minimum hourly rate
of $1.65. At this point Bemis asked what his job would be if
he elected to work at the hourly rate, and Potchen replied
that his first job would be to wash the company-owned
truck .38 Bemis then replied that as the job he was working
on was started on a commission basis , then he wanted to
finish that, and would then advise Potchen what he had
decided. Bemis finished the commission job about 6 p.m.
and left for the day without telling Potchen what his
decision was. The following morning (December 22),
Bemis came to the shop , loaded his tools into his vehicle,
went to Lachniet's office, and admittedly told the latter
that the wages and working conditions were such that it
was not worth his while driving back and forth to work,
and that he was "terminating [his] position."
6. Contentions and conclusions
a. As to the 8(a)(1) allegations
Upon consideration of the entire record, I find and
conclude that Respondent violated Section 8(a)(l) of the
Act by the following:
1. Brook's statement to Kelly that the efforts of the
employees to organize was like sticking a knife in
Lachniet's back, and that if the employees were successful
in that regard they would lose some benefits they then
enjoyed. This was plainly a threat to Kelly and those acting
in concert with him of economic loss if they persisted in
their support of the Union. As this incident occurred at a
time when Lachniet was absent on military duty, and
during which period he had conferred upon Brook the
authority to hire and fire, she was at least for that period a
supervisor within the meaning of the Act, and Respondent
is responsible for her conduct above set forth. Any
contention that Brook 's statement did not violate Section
8(a)(1) of the Act because Kelly was a supervisor, I find
without merit. The issue being raised by way of defense,
the burden was upon Respondent to establish that Kelly
occupied that status. As I held, with Board approval, in
McCormick Concrete Company of S.C., Inc., 153 NLRB
1507, 1513, enfd. 371 F.2d 149 (C.A. 4, 1967):
The General Counsel having alleged and proved that
Lambert was employed by Respondent, a prima facia
case of "employee" status was established , and it then
devolved upon Respondent to go forward with eviden-
ce to establish Lambert's supervisory status, to remove
conduct otherwise illegal, from the interdiction of the
Act.
To the same effect see Detroit Edison Company, 123 NLRB
225, 230; Riss & Company 127 NLRB 1327, 1330; Benson
Wholesale Company, 164 NLRB 536, 548.
Aside from their title, Respondent offered no evidence
tending to establish that Kelly, Jones, or Hickson, the three
individuals Lachniet designated as the head of a specific
department, had any of the authority specified in Section
38 Bemis testified that in this conversation Potchen addressed him in
vulgar and insulting language unnecessary to repeat here . Potchen admitted
that vulgarity was frequently used about the shop , but could not recall
whether he did so on this occasion . Although I am willing to assume that the
865
2(11) of the Act. It is well settled , however, that it is the
actual authority one possesses , not the title conferred upon
him, which determines one's supervisory status. N.LR.B. v.
Ohio Power Co., 176 F.2d 385 (C.A. 6, 1949), cert . denied
338 U.S. 899 . Respondent having failed to adduce proof of
their supervisory authority, I find and conclude , as did the
Regional Director in the representation case , that Kelly,
Jones, and Hickson were "employees" affecting commerce
within the meaning of Section 2(3) and (7) of the Act.
2. Brook's statement to the men assembled in the
service area that in pursuing their union activity the men
were "looking for trouble," would wind up "hanging
themselves ," and that Lachniet would not like what they
were doing "one bit ." This plainly was a threat of
retaliation against the employees if they continued to
pursue their union activities . As this incident also occurred
at a time when Lachniet was away on military duty, for
which period Brook , by virtue of her authority to hire and
fire, was a supervisor , Respondent is responsible for her
conduct in that regard.
3. Brook's statement to Kling , when the latter com-
plained about what he regarded as the unfair discharge of
Szilvagi, that Lachniet had to fight back anyway he could
after what the men had done to him, as well as her later
statement to Kling , substantially to the same effect, were
likewise statements that Respondent would retaliate
against employees because of their union activity. Al-
though these incidents occurred after Lachniet returned
from military duty, and after Brook's specific designation
of authority to hire and fire had apparently expired, I
nonetheless find and conclude that Respondent was
responsible for her conduct . In view of the responsible
position Brook occupied in the management hierarchy, the
closeness of her relationship to Lachniet , the fact that she
in the past did possess supervisory authority , as well as
Lachniet's own antiunion activity in the same or similar
vain, the employees had just cause to believe that Brook, in
her statements to the employees, was speaking for and on
behalf of management . International Association of Machin-
ists, etc. v. N.LR.B., 311 U.S. 72, 80;N.LR.B. v. Link-Belt
Co., 311 U.S. 584, 599.
4. Lachniet's statement to Jones that he was consider-
ing the appointment of a store manager and his request
that Jones consider whether he wished to remain a
salesman, or wished to move up in the organization , as well
as Lachniet's statement to Blessing that for some people
there would be a place in his organization, and for others
there would not. Both statements were, in context,
promises of benefit if the employees would withhold
support for the Union, and a threat of reprisal if such
support was given . The argument that these statements
were innocuous, or at most predictions of what might
occur, is plainly without merit . N.LR.B. v. Gissel Packing
Co., 395 U.S. 595, 616-620; and International Association of
Machinists v. N.LR. B., supra. In the last mentioned case
the Court said at 78 , "Slight suggestions as to the
employer's [views on union organization ] may have telling
language used by Potchen was not that normally heard in the Victorian
parlor, I deem it unnecessary to make any finding on the precise language
employed , because in no event would such finding have any probative value
with respect to the ultimate issues.
866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
effect among men who know the consequences of incurring
that employer's strong displeasure." 39
5. Lachniet's statements to Kelly in August and again
in early October that if the Union got in things would be a
lot worse for everyone. This was plainly a threat by
Lachniet to retaliate against employees because they
assisted and supported the Union.
6. The conduct of Lachniet in causing the parts area to
be enclosed and a window installed. Although the window
was not put to use and mechanics were never required to
limit themselves to obtaining parts through that window
from a parts clerk, in the light of Lachniet' s statements to
Gorman in late 1969, and the union activity of the
employees in August 1971, the installation of the parts
window was, at least to Gorman, a threat of retaliation
because of such union activities. The fact that Lachniet's
statements to Gorman in 1969 were phrased in terms of
what he could, rather than what he would do, in no way
calls for a contrary conclusion. So far as Gorman was
concerned, it was the appearance of the window that
constituted the threat.
7. Lachniet's statement to Gorman that a lot of things
were going to happen that would hurt his average earnings.
In context, this was also a threat of retaliation for the fact
that the employees engaged in union activity, in which
activity Respondent knew that Gorman was a leading
figure. Additionally, and by the same process of reasoning,
Lachniet's statement to Gorman, made less than a week
prior to the latter's discharge, that he did not want to
influence Gorman's vote in the upcoming election, but
everyone will know more about their employment status
after the election must, in context, be regarded as a threat
to retaliate against employees because of their union
activity.
8. Lachniet's statement to Blessing in November that
an employer in Pontiac had discharged all his employees
upon learning of their organizational activity, and that he
(Lachniet) wished he had the same opportunity, as well as
his statement to Blessing, in the same conversation, that if
Blessing thought conditions in the shop were bad at the
time, just to wait. Both statements were threats to retaliate
against employees because of their union activity.
9. Lachniet's statement to Blessing that if the plans to
erect a new building proceeded as planned, he (Blessing)
would become manager of Meridian Cycle Supply. In
39 As in the case of Kelly, Respondent had the burden of going forward
with evidence to establish that Jones was a supervisor within the meaning of
the Act, but no such evidence was introduced.
40 The General Counsel introduced considerable additional testimony
having overtones of a number of possible 8(a)(l) violations . As to some of
these , when asked for his position , counsel expressly stated that the only
purpose of the testimony was to show union animus, but as to others, no
brief having been filed, it is not clear what the General Counsel is
contending . As to most of these I have not detailed the evidence . Suffice it
to say that with respect to most of such incidents there either is no violation,
or they are of the same general nature as those detailed above and would
have no effect on the nature or scope of the order to be entered herein.
There is, however, one exception which needs further discussion. The
General Counsel offered considerable evidence concerning Respondent's
failure to put the winter wage into effect before December 21. The General
Counsel did not state on the record , and, as he has filed no brief, I am at a
loss to know whether this testimony was introduced solely for the purpose of
showing union animus, as was so often the case , or whether he urges it to be
context this was a promise of benefit to encourage Blessing
to continue to withhold his support from the Union.
10. Potchen's statement to Jones in January 1972 that
Gorman would not be recalled to work because the latter
had been working behind Lachniet's back; was "rocking
the boat" and "making waves," and making the operation
more difficult. This was plainly a threat to deny Gorman
employment because of his assistance to and support of the
Union. The fact that Potchen disciplined Bemis for his
tardiness, sought to discharge him for that reason, and was
prevented from doing so only because Bemis sought out
Lachniet, and that Potchen did these things without protest
from Lachniet convinces me, and I find, that Potchen had
the authority to lay off, recall, and suspend in a manner
which required the use of independent judgment, and
hence was a supervisor within the meaning of the Act a0
b. The alleged changes in working conditions
The General Counsel contends that Respondent made
the changes in working conditions detailed in section C,
6(b) hereof; with the intent and purpose of retaliating
against the employees for engaging in protected activity,
but upon consideration of the entire record I find and
conclude that the evidence fails to establish the alleged
unlawful purpose. There is no showing that any employee
was inconvienced to any material extent or deprived of any
right or privilege theretofore enjoyed, by the change in
location of the coffeepot, the absence of the refrigerator, or
the temporary unavailability of the catalogues. Had there
been any intent to retaliate against employees, it would
seem that Respondent would have at least to some degree
circumscribed or eliminated some employee right or
privilege. It is uncontradicted, however, that this was not
done.
It is true that, with respect to the shop rules posted by
Potchen, Blessing was denied the right on one occasion to
use company space and tools to service his motorcycle, as
he had in the past, but there is no evidence that this
happened to any other employee, or to Blessing other than
on this one occasion. The evidence shows also that when
Lachniet learned of the shop rules posted by Potchen he
promptly revoked them, and there is no evidence that any
employee was thereafter prevented from servicing a
motorcycle in Respondent' s premises . Assuming, arguendo,
that the one incident involving Blessing was, under the
circumstances, violative of Section 8(a)(l), it appears to
a violation of Sec . 8(a)(l); and if it is the latter the theory to support such a
conclusion has not been advanced. On the assumption that the General
Counsel contends that Respondent 's conduct in this regard was a violation
of Sec. 8(a)(1), I would find and conclude that the evidence is insufficient to
establish that the winter wage was withheld from the mechanics (the only
employees to whom the policy applied), to retaliate against them for their
union activity. Although the policy statement fixed the peak season as from
March I to October 1, it did not define the winter or slow season , nor did it
specifically define when the so-called average wage would become payable.
Lachniet testified that to him winter was winter ; namely that season which
begins on December 21 and ends March 20 , when mechanical work
normally was no longer available, and when mechanics were assigned
maintenance work. For the winter of 1970-71, the first full winter season
that Lachniet was the owner of the business , mechanics were converted
from commission to hourly rate the first week in December. Thus, prior
practice is substantially consistent with Lachniet's interpretation of his
policy. On the whole , I find that the General Counsel has failed to prove the
required motive to establish a violation of Sec . 8(axl) in this regard.
HONDA OF HASLETT 867
have been isolated, was promptly corrected when notice
thereof came to higher management, and there is nothing
to indicate that it is likely to recur. Accordingly, no
remedial order in that regard appears to be required.
c. The 8(a)(3) allegations
(1) Gorman and Kling
Upon consideration of the entire record I am convinced,
and therefore find and conclude, that Gorman and Kling
were laid off by Lachniet on October 21 because he
regarded them as the leaders in, and responsible for, the
union campaign which just 3 days before had been
apparently successful in a Board-conducted election, and
to punish them for their activity in that regard. I reach this
conclusion on the totality of the following considerations:
1. Respondent makes no complaint about the job
performance of either Gorman or Kling. In fact, as I have
found, when Lachniet learned early in 1971 that Gorman
was returning to work, he informed then Service Manager
Kelly of that fact and told the latter that Gorman was "an
exceedingly good and fast mechanic." There is no
evidence, nor does Lachniet contend, that, in the approxi-
mately 6 months which followed the foregoing statement,
he had any reason to change his mind regarding Gorman's
job performance.
2. Lachmet's displeasure with the organizational efforts
of his employees is made plain by his own conduct
calculated to prevent the success of that effort, as well as
conduct of Brook who, as I have found, the employees had
every right to assume was speaking and acting on behalf of
management.
3. Lachniet's statement to Gorman in the late summer,
made shortly after he had observed Gorman in attendance
at the Board hearing in the representation case, that a lot
of things were going to happen to hurt his average
earnings, and Lachniet's subsequent statement to Gorman,
just 2 or 3 days before the October 18 election, to the effect
that all concerned would know more about their employee
status the following week, was a rather thinly veiled
warning of an impending layoff which in fact came on
October 21, just 3 days after the election.
4. Although Gorman and Kling were experienced
assemblers, having worked in that capacity for Respon-
dent, and Respondent found it necessary to hire several
assemblers in early November, neither was retained nor
called back to do that work. When they were called back
(Kling in early December, and Gorman in the latter part of
the following February), neither was given assembly work
which Lachniet admitted was then available. In fact,
Gorman was not even given mechanical work, being
assigned instead to cleaning up the trash left by the
assemblers, and shoveling snow from the parking lot.
5. Respondent's defense to the layoff of Gorman and
Kling is that such action was dictated by economic
necessity. The general tenor of all the testimony is that the
sale and servicing of motorcycles diminishes during the
winter season, but that at least some of this diminution in
business is off set by the sale and servicing of snowmobiles,
a business in which Respondent is also engaged. Lachniet
testified that by October 21, mechanical work had
diminished to the extent that the retention of Gorman and
Kling could no longer be justified economically. But the
trier of fact is not required to accept without question the
uncorroborated evidence of Respondent that reduced
business made the layoffs necessary. The best evidence to
establish that fact-Respondent's books and records which
it undoubtedly maintains-were not produced. Had such
records been produced by Respondent, it is certainly
within the area of reasonable possibility that cross-exami-
nation might have established that the drop in revenue in
the service department had not yet developed, or, if it had,
that it was to an extent that would call only for the layoff
of one employee, or perhaps neither. In this posture,
Respondent has simply failed to establish its defense of
economic necessity. As the Supreme Court said in
Interstate Circuit v. United States, 306 U.S. 208, 226 "The
production of weak evidence when strong is available can
lead only to the conclusion that the strong would have
been adverse." The Board has often held that the failure to
introduce available business records to support an eco-
nomic defense makes that defense suspect . See Tabulating
Card Company, 123 NLRB 62,73; New England Web, Inc.,
135 NLRB 1019, 1025; Morrison Motor Freight, 137 NLRB
933, 939.
6. What all this adds up to is that two admittedly
satisfactory employees, both of whom are active supporters
of the Union, are laid off immediately following an
election in which the Union was apparently successful
notwithstanding Respondent 's interference, allegedly be-
cause of economic necessity, with the defense not support-
ed by the record. In these circumstances it is appropriate to
infer, as I do, that Respondent's antipathy to the Union,
and not economic necessity was the motivating cause of
these layoffs. As the Court of Appeals for the Ninth Circuit
said in Shattuck Denn Mining Corp. v. N.L.R.B., 360 F.2d
1018, 1020:
... If he [the trier of fact] finds that the stated
motive for a [layoff ] is false, he can certainly 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 , as in this
case, the surrounding facts tend to reinforce that
inference.
Accordingly, for the reasons stated , I find and conclude
that the layoff of Gorman and Kling was discriminatorily
motivated, and, as such layoffs had the natural tendency to
discourage membership in the Union, they violated Section
8(a)(3) and (1) of the Act.
(2) Bemis
Although the General Counsel concedes that Bemis was
never in fact discharged by Respondent, he urges that his
conditions of employment were made so onerous that
Bemis was in fact constructively discharged. I find this
contention without merit.
To say that Bemis' record for attendance and punctuality
was bad is to state the case mildly. That record, heretofore
set out in detail, and which Bemis did not deny, is one
which no employer should be called up to tolerate, and
fully justified Respondent' s insistence , through Supervisor
Potchen, that Bemis report each day at a proper hour. I
868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
find nothing in this conduct to establish, or even suggest,
that Respondent had any plan designed to create working
conditions that would force Bemis to terminate his
employment involuntarily. Indeed, it would seem that if
Respondent was intent on getting rid of Bemis, Lachniet
would have seized the opportunity which presented itself
when Potchen brought Bemis to the office stating that he
had fired the latter for his tardiness. Instead Lachniet
dismissed Potchen, and told Bemis that the latter was his
most senior employee whom he would hate to lose, and
asked that Bemis make an effort to report on time. This is
hardly the reaction normally expected of an employer who
is plotting to make life so miserable for an employee that
he will be forced to quit. Plainly, on the record in this case,
what induced Bemis to elect to terminate his employment
when he did was, as he told Lachniet, the realization that
whether he elected to work on commission, or on the
minimum hourly rate, his earnings would not be sufficient
to make it worth his while driving back and forth to work.
Accordingly, on the entire record, I find and conclude that
Bemis was not constructively discharged in violation of
Section 8(a)(3) of the Act, but voluntarily terminated his
employment.
d. The request for a bargaining order
The General Counsel relying on N. L. R. B. v. Gissel
Packing Co., 395 U.S. 575, contends that, under the
circumstances of this case, the Union having enjoyed
majority status when it made its recognition and bargain-
ing demand on Respondent, and that the latter having
engaged in an unfair labor practices which the General
Counsel contends makes the holding of a fair rerun
election impossible or at least doubtful, Respondent should
be directed to bargain with the Union without holding the
rerun election which the Regional Director ordered.
Under Gissel, supra, an employer is free to reject a
demand for recognition and "insist that a union go to an
election, regardless of his subjective motivation ..." (395
U.S. at 594). Continuing, Gissel points out that "the key to
the issuance of a bargaining order is the commission of
serious unfair labor practices that interfere with the election
process and tend to preclude the holding of a fair election,"
or a rerun election (idd, emphasis supplied), for not all
"employer conduct found violative of Section 8(a)(1) of the
Act, regardless of its nature or gravity, will necessarily
support a refusal-to-bargain finding." (Id. at 610.)
Applying the foregoing principles to the facts in the
instant case, we find that as soon as Brook and Lachniet
discovered that the employees were attempting to organize
the employees were subjected to a series of incidents which
I have found violative of Section 8(a)(1) of the Act. All but
three of these incidents (heretofore reviewed in greater
detail), occurred prior to the election and undoubtedly
would have been grounds for setting aside that election had
that become an issue. But it did not become an issue
because not withstanding Respondent's 8(a)(1) violations,
a majority of the employees (ultimately eight to four),
voted for the Union. Thus it cannot be said that
41 These are Kelly, Thrasher, Blessing, James, Kling, and Bemis.
Respondent has submitted as an appendix to his brief a compilation
purportedly showing the current employee status of each employee in the
Respondent's unfair labor practices up to the time of the
election had any substantial impact upon the election
process. True, the election had to be set aside, but not
because of any misconduct on the part of Respondent, but
rather because union adherents engaged in improper
conduct at the polls.
The only post election unfair labor practices, as I have
above found, were as follows:
1. Brook's statement to Kling in December, when the
latter complained about not getting sufficient work, that
Lachniet had to fight back any way he could after the men
"stabbed him in the back."
2. Lachniet's statement to Blessing , sometime after
November 7, that he wished he had the opportunity to fire
all the employees as the employer in Pontiac had done
when he became aware that union activity was in progress,
and if Blessing thought working conditions were bad at the
time, to "just wait."
3. Supervisor Potchen's statement to employee Jones in
January 1972, when the further employment of Gorman
was under discussion, that Gorman had been working
behind Lachniet's back, was "rocking the boat" and
"making waves," and making the operation more difficult
than it had to be.
4. The layoff of Gorman and Kling, which I have
found to have been discriminatorily motivated.
The three incidents of 8(a)(1) violations above-men-
tioned do not appear very substantial when considering
whether a fair rerun election can be held, if the rather
substantial preelection 8(a)(l) conduct proved not to have
had any serious impact on the election held October 18.
This would seem particularly true if the Board follows, as I
assume it will, its past policy of requiring the posting of a
proper notice, following which the rerun election will be
scheduled for a time when the Regional Director finds the
election can be conducted in an atmosphere that will
permit the employees to freely express their desires with
respect to union representation. It is true that discrimina-
tion against an employee is a serious unfair labor practice,
but under the particular facts of this case I do not believe
that the election process has been so contaminated as to
preclude the holding of a fair rerun election, Ring Metals
Co., 198 NLRB No. 143.
At the trial the General Counsel from time to time urged,
and although he has filed no brief, presumably still
contends, that a fair election cannot be held at this time
because Respondent decimated the unit, and that because
of this the only practical remedy is an order to bargain. It
is true that of the 12 employees who voted in the October
18 election at least 6 no longer work for Respondent,41 but
except in the case of Bemis whom I have found was a
voluntary quit, there is no allegation in the complaint nor
can it be found in this proceeding that the employment
status of the remaining 5 ceased because of any miscon-
duct on the part of Respondent. Indeed the uncontradicted
testimony of Kelly, Thrasher, Blessing, James, and Kling is
that they voluntarily quit their employment with Respon-
dent, and the General Counsel admitted on the record, at
unit on August 16. However , except to the extent herein indicated , I find no
support in the record for the assertions therein indicated.
HONDA OF HASLETT 869
least with respect to Blessing , that he was not contending
that Blessing was an 8(a)(3).42
Accordingly, upon the entire record, I find and conclude
that under the facts of this case an order requiring
Respondent to bargain with the Union would not be
appropriate.
Upon the foregoing findings of fact, and on the entire
record in the 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 conduct set forth in section C, 6(a) hereof,
Respondent interfered with, restrained, and coerced its
employees in the exercise of rights guaranteed them by
Section 7 of the Act, and thereby engaged in and is
engaging in unfair labor practices proscribed by Section
8(a)(1) of the Act.
4. By laying off Michael Gorman and Frederick J.
Kling on October 21, because of their assistance to and
support of the Union, Respondent discriminated against
them in regard to their tenure of employment, and the
terms and conditions thereof, to discourage membership in
the Union, and thereby engaged in and is engaging in
unfair labor practices proscribed by Section 8(a)(3) and (1)
of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
6. Except to the extent above found, the General
Counsel has failed to establish the allegations of the
complaint, and said complaint should to that extent be
dismissed.
THE REMEDY
Having found that Respondent has engaged in and is
engaging in unfair labor practices proscribed by the Act, it
will be recommended that he be required to cease and
desist therefrom and to take the affirmative action, set
forth below, designed and found necessary to effectuate
the policies of the Act.
Having found that Respondent interfered with, coerced,
and restrained its employees in the exercise of their
guaranteed Section 7 rights, and discriminatorily laid off
Gorman and Kling, I conclude from the totality of that
unlawful conduct that Respondent should be required to
cease and desist from in any manner interfering with,
restraining, or coercing its employees in the exercise of
rights guaranteed them by Section 7 of the Act. N.LRB. v.
Entwistle Mfg. Co., 120 F.2d 532 (C.A. 4); California
Lingerie, Inc., 129 NLRB 912, 915.
It having been found that, although Gorman and Kling
were discriminatorily laid off, they were subsequently
recalled by Respondent , hence a reinstatement order is
unnecessary. The record is silent, however, on whether
Gorman and Kling were made whole for the loss of pay
they suffered. Accordingly, I shall recommend that
Respondent be required to make Gorman and Kling whole
tor any loss of earnings they suffered , respectively, by
paying to each a sum of money equal to the amount he
would have earned from October 21, to the date they were
severally reinstated, less any amount they may have
severally earned during said period . Such backpay shall be
computed in accordance with the formula set forth in F.
W. Woolworth Company, 90 NLRB 289, with interest at the
rate of 6 percent per annum, as provided in Isis Plumbing &
Heating Co., 138 NLRB 716. It will further be recommend-
ed that Respondent be required to preserve and, upon
request, make available to authorized agents of the Board
all records necessary or useful in determining compliance
with the Board's order, or in computing the amount of
backpay due.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in the case, and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed: 43
ORDER
Respondent , Joseph J. Lachniet , doing business as
Honda of Haslett, Haslett , Michigan , his agents , succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Telling employees that their efforts to organize was
the same as sticking a knife in his back.
(b) Telling employees that if they organized into a union
they will lose benefits they then enjoy.
(c) Telling employees that by engaging in union activity
they were looking for trouble and would wind up hanging
themselves.
(d) Threatening to fight back against employees by
retaliating against them because they engage in union
activity.
(e) Promising benefits to employees if they withheld their
support of a union , or threatening reprisal if such support
was not withheld.
(f) Threatening employees that working conditions
would be a lot worse if a union got in.
(g) Discouraging membership in or activities on behalf of
Local 580, International Brotherhood of Teamsters , Chauf-
42 At one point , in attempting to justify the absence of an 8(a)(3)
allegations in the complaint with respect to the last mentioned employees
the General Counsel stated that he had no way to require people to file
charges Examination of the record, however , reveals that the explanation
lacks substance in fact In the first place , all charges here were filed by the
Union; not by the individuals No reason occurs to me why the Union
would have hesitated to include those individuals in the charge if they felt
such allegations to be meritorious Secondly, and more important,
assuming, arguendo, that a charge specifically naming those individuals was
necessary for the General Counsel to include them in the complaint, the
second amended charge filed by the Union's counsel on February 4, 1972,
by virtue of which the complaint was amended to allege a violation of Sec
8(a)(5), specifically charged that Respondent discrinunatonly laid off James
and Blessing . I can only assume that the General Counsel did not include
them in his complaint because he was satisfied that the evidence would not
sustain such an allegation
43 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions, and recommended 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.
870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
feurs, Warehousemen and Helpers of America, or any
other labor organization of his employees, by discharging,
laying off, or otherwise discriminating against employees
in regard to the hire or tenure of their employment or any
term or condition thereof.
(h) 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
choosing, and to engage in concerted activities for the
purposes of collective bargaining or other mutual aid or
protection as guaranteed by Section 7 of the Act, or to
refrain from any and all such activities.
2. Take the following affirmative action designed and
found necessary to effectuate the policies of the Act:
(a) Make whole Michael Gorman and Frederick J. Kling
for the wages they lost from October 21, 1971, to the date
they were severally reinstated, in the manner set forth in
the section hereof entitled "The Remedy."
(b) Preserve and, upon request, make available to
authorized agents of the National Labor Relations Board,
for examination and copying, all payroll records, social
security payment records, timecards, personnel records
and reports, and all other records necessary or useful in
determining compliance with this recommended Order, or
in computing the amount of backpay due, as herein
provided.
(c) Post at its business premises at Haslett , Michigan,
copies, of the notice attached marked "Appendix." 44
Copies of said notice on forms provided by the Regional
Director for Region 7 of the National Labor Relations
Board (Detroit, Michigan), shall, after being signed by an
authorized representative, be posted as herein provided
immediately upon receipt thereof, and be so maintained
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken to
insure that said notices are not altered, defaced, or covered
by any other material.
(d) Notify the aforesaid Regional Director, in writing,
within 20 days from the date of receipt of this Decision,
what steps he has taken to comply herewith.45
IT IS FURTHER ORDERED that all allegations of the
complaint not herein specifically found be, and the same
are, dismissed.
44 In the event that the Board's Order is enforced by a Judgment of a 45 In the event that this recommended Order is adopted by the Board
United States Court of Appeals, the words in the notice reading "Posted by after exceptions have been filed , this provision shall be modified by deleting
Order of the National Labor Relations Board" shall read "Posted Pursuant the words "receipt of this Decision" and substituting therefore the words
to a Judgment of a United States Court of Appeals Enforcing an Order of "this Order."
the National Labor Relations Board."