Goode Motor Co., 43 (1962)

carries the Bonwit Teller doctrine too far. The Board is here deciding, it seems to me, that an employer interferes unlawfully with an election whenever he seizes the strategic advantage of speaking on his premises just before a Board election, even in the situation where the union has never asked for an equal chance to address his employees in the event that he should do so.4 It is true, as the majority opinion says, that by timing his speech as he did, the Employer 'made impossible the holding of any further meetings before the election,' thereby denying the union 'an opportunity to reply under comparable circumstances.' But I had not supposed until today that this Board believed that its obligation to assure free choice in elections included a requirement that labor organizations, like others sometimes thought weaker, must always have the last word.

4 Cf. Onondaga Pottery Company, 100 NLRB 1143, where the union made an anticipatory request to address the employees in the event that the employer did so.

H. I. GOODE D/B/A GOODE MOTOR COMPANY and INTERNATIONAL ASSOCIATION OF MACHINISTS, DISTRICT LODGE No. 176. Case No.

10-CA-1260. October 22, 1952

Decision and Order On March 11, 1952, Trial Examiner Albert P. Wheatley issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report, and a supporting brief.

The Board l has reviewed the rulings of the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.

Order Upon the entire record in the case, the National Labor Relations Board hereby orders that H. I. Goode, doing business as Goode Motor Company, Bristol, Tennessee, his agents, successors, and assigns shall :

'Pursuant to the provisions of Section 3 (b), of the National Labor Relations Act as amended, the Board has delegated its powers in connection with this case to a threenmember panel [Members Houston, Murdock, and Styles].

101 NtRB No. 17.

1. Cease and desist from :

   (a) Discouraging self-organization or concerted activities among employees for their mutual aid and protection as guaranteed in Section 7 of the Act or discouraging membership in International Association of Machinists, District Lodge No. 176, or any other labor organization of his employees, by discharging any of his employees, or in any other manner discriminating in regard to their hire or tenure of employment or any term or condition of employment.

   (b) Promising employees rewards in return for relinquishment of membership in or activity on behalf of International Association of Machinists, District Lodge No. 176, or any other labor organization.

   (c) Threatening employees with economic reprisals because of their membership in or activities on behalf of the above-named Union or any other labor organization.

   (d) In any other manner interfering with, restraining, or coercing employees in the exercise of the right to self-organization, to form labor organizations, to join or assist International Association of Machinists, District Lodge No. 176, or any other labor organizations, to bargain collectively through representatives of their own choosing and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act.2

2. Take the following affirmative action which the Board finds will effectuate the policies of the Act :

   (a) Offer C. H. McCorkle immediate and full reinstatement to his former or substantially equivalent position,3 and make him whole for any loss of pay which he may have suffered by reason of Respondent's discrimination against him 4 in the manner provided in the section of the Intermediate Report entitled 'Recommendations,' (recommendations not printed).

   (b) Upon request, make available to the National Labor Relations Board or its agents, for examination and copying, all payroll records, social security payment records, time cards, personnel records and reports, and all other records necessary to analyze the amount of back pay due and the right of reinstatement under the terms of this Order.

   2 See Standard Dry Wall Products, Inc., 91 NLRB 544 enforced 188 F. 2d 362 ( C. A. 3).

   ' In accordance with the National Labor Relations Board's consistent interpretation of the term, the expression 'former or substantially equivalent position ' Is interpreted to mean 'former position whenever possible and if such position is no longer in existence, then to a substantially equivalent position .' See The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch , 65 NLRB 827.

   4 The loss of pay shall be computed from the date of the discrimination to the date of a proper offer of reinstatement . In computing the loss of pay the customary formula of the National Labor Relations Board shall be followed . See F. W. Woolworth Company, 90 NLRB 289.

   (c) Post at his place of business in Bristol, Tennessee, copies of the notice attached hereto and marked 'Appendix B.' 5 Copies of said notice, to be furnished by the Regional Director for the Tenth Region, shall, after being duly signed by Respondent's authorized representative, be posted by the Respondent immediately upon receipt thereof, and maintained by him for sixty (60) consecutive days in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material.

   (d) Notify the Regional Director for the Tenth Region (Atlanta,

   Georgia), in writing, within ten (10) days from the date of this Order what steps the Respondent has taken to comply herewith.

   8 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words 'Pursuant to a Decision and Order' the words 'Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order.' Intermediate Report and Recommended Order STATEMENT OF THE CASE

   The above-entitled matter involves allegations that H . I. Goode, doing business as Goode Motor Company, herein called Respondent, on or about March 24, 1951, discriminatorily discharged C. H. McCorkle , and allegations that Respondent (1) threatened its employees with discharge and other reprisals because of their union membership and activities , ( 2) threatened its employees with loss of benefits and other reprisals because of their union membership and activities, and (3) promised its employees rewards and benefits on condition that they cease their union membership and activities .' Respondent denies the above-mentioned conduct and asserts (1) that the business involved is of a local character and (2) that business activities during 1951 'necessitated a reduction in the working force' and that McCorkle was laid off 'because said employee's record of productivity reflected that he was the lowest producing employee in his classification.' A hearing in the above-entitled matter was conducted by the undersigned in Bristol, Tennessee, on October 31, 1951, and on January 8 and 9 , 1952, at which the issues were fully litigated. At the hearing the undersigned took under consideration a motion to dismiss the complaint. This motion is now disposed of in accordance with the following findings and conclusions . After the close of the hearing, briefs were received from counsel for the General Counsel and from counsel for Respondent which have been considered in the preparation of this Report.

   Upon the entire record in the case and from his observation of witnesses, the undersigned makes the following findings of fact, conclusions of law, and recommendations.

   BUSINESS OF BESPONDENT

   Respondent,' a direct dealer for Chrysler Corporation , Dodge Division, is engaged in Bristol, Tennessee , in the sale and servicing of new and used motor vehicles. Its sales of new motor vehicles are made in accordance with an agree1 Certain other allegations of the complaint were dismissed at the hearing and will not be discussed herein.

   2 Respondent is a sole proprietorship owned and operated by H. I . Goode.

   ment with the Chrysler Corporation (Dodge Division) giving Respondent exclusive rights for the sale of Dodge motor vehicles and nonexclusive rights for the sale of Plymouth motor vehicles in the territory assigned to it. The sales area defined in the agreement consists of :

   In the State of Tennessee : That part of Sullivan County lying east of a line drawn north and south thru the western limits of the town of Blountville.' In the State of Virginia: In Washington County the Districts of Goodson and Kinderbrook.

   During the year beginning September 1, 1950, Respondent purchased new cars, trucks, parts, and supplies valued at more than $200,000 and sold automobiles, trucks, and repair parts valued at more than $500,000. More than 90 percent of the new cars, trucks, parts, and supplies were shipped to Respondent from points and places beyond the State of Tennessee. Approximately $2,923 represents automobiles, trucks, and repair parts sold and shipped by Respondent, during this period, to points and places beyond the State of Tennessee. In addition, Respondent made sales in the approximate amount of $64,031.08 as local retail sales to...