Biederman Furniture Co.

BIEDERMAN FURNITURE COMPANY Biederman Furniture Company and Herbert Jagust , An Individual. Case 14-CA-3864. April 18,1967 DECISION AND ORDER BY MEMBERS BROWN, JENKINS, AND ZAGORIA On November 10, 1966, Trial Examiner Robert L. Piper issued his Decision 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 attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Decision together with a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in this case, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner, as modified herein. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner and hereby orders that Respondent Biederman Furniture Company, St. Louis, Missouri, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. i The Trial Examiner found that the Respondent changed its method of handling credit purchases in its various stores and that employee Jagust was outspoken in his opposition to the change The record shows, however, that the change was merely proposed and was not effectuated, and that Jagust's opposition was directed to the proposal These misstatements, however, do not affect the Trial Examiner's ultimate conclusions TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE ROBERT L. PIPER, Trial Examiner: This proceeding under Section 10(b) of the National Labor Relations Act, as amended, was heard by me in St. Louis, Missouri, on June 20 and 21, 1966, pursuant to due notice. The complaint, which was issued on April 5, 1966, on a charge i All dates hereinafter refer to 1965 unless otherwise indicated 57 dated January 13, 1966, alleged in substance that Respondent engaged in unfair labor practices proscribed by Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, by a specific act of interference, restraint, and coercion and discriminatorily transferring an employee to a less desirable position. Respondent's answer denied the alleged unfair labor practices. Both parties filed briefs. Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. JURISDICTIONAL FINDINGS Respondent is a Maine corporation with its office and place of business at St. Louis, Missouri, where it is engaged in the retail sale and distribution of household furnishings, furniture, appliances, and related products at various stores in St. Louis, Missouri, and vicinity. During the past year Respondent sold and distributed products, the gross value of which exceeded $500,000, and purchased and caused to be transported and delivered to its stores in Missouri goods and materials valued in excess of $50,000 directly from points located outside the State of Missouri. Respondent admits and I find that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Local 655, Retail Store Employees Union, Retail Clerks International Association , AFL-CIO (the Union herein), is a labor organization within the meaning of Section 2(5) of the Act. Respondent's sales employees are represented for the purposes of collective bargaining by the Union. III. THE UNFAIR LABOR PRACTICES A. Introduction and Issues Herbert Jagust, an individual, is the Charging Party and was employed by Respondent' as a salesman at its Normandy store. Respondent and the Union had a collective-bargaining agreement in effect. In early 1965,' about February, Respondent changed the credit procedure used in its stores in the sale of furniture to customers. A number of its salesmen, particularly those at the Normandy store, were strongly opposed to this change in Respondent's credit procedure, because they believed that the change entailed additional work on their part without compensation and with a loss of selling time and was in violation of the collective-bargaining agreement. Jagust was both the leader and spokesman of the salesmen at the Normandy store in presenting their ultimately successful opposition to such change to both the Union and Respondent. On November 1, Respondent transferred Jagust from his position as salesman at the Normandy store to an allegedly less desirable position as a salesman at its Franklin store, purportedly because of his selling too much low markup merchandise contrary to Respondent's policy. The principal issue as framed by the pleadings is the alleged discriminatory transfer of Jagust to a less desirable position because of his union and concerted activities. A subsidiary issue is an alleged statement by a supervisor to 164 NLRB No. 12 58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD an employee that Respondent would "get" Jagust because of his union and concerted activities. B. Chronology of Events Respondent operated 31 furniture and appliance stores at which it employed approximately 300 salesmen. Included among its stores were a number in the greater St. Louis area, including the Normandy store at Normandy, Missouri, the Franklin store in downtown St. Louis, and several other stores mentioned in the record. In early 1965, about February, Respondent decided to change its method of handling credit purchases in its various stores. Prior to such change, upon the consummation of a sale the salesmen took customers buying on credit to the store's credit department and thus were free thereafter to wait on additional customers who might be in the store. After the change, adopted in connection with a new revolving, as distinguished from installment, credit plan, Respondent directed its salesmen to handle the credit negotiations with the customer, such as the amount of downpayment, the existence of a charge account or credit card, the terms of payment, and other details. This necessarily required the salesmen to spend additional time with each credit customer, and reduced the amount of selling time available to each salesman. The salesmen were paid on a commission basis, 5 percent on the first $1,800 of sales per week, or $90, and 3 percent on all additional sales. The $1,800 a week, or $360 a day, was a quota which each salesman normally was expected to meet. Jagust was a salesman at the Normandy store. The union steward was Henry Manne. Ted Fister was the manager of the Normandy store until on or about April 10; thereafter Joseph Dwyer became the manager. Eugene Bulejski, manager of Respondent's North County store, was also the supervisor of the Normandy store and the immediate superior of its manager. His superior, Ivan Silberman, was the vice president in charge of sales for Respondent. In early February a representative of Respondent visited the Normandy store and announced and explained Respondent's new credit procedure to the salesmen. There was immediate opposition by the salesmen, both because they felt that the program would deprive them of selling time and consequently earnings, and because they believed that the change in credit procedure was a violation of the collective-bargaining contract between Respondent and the Union. After the representative left, the salesmen decided to hold a meeting away from the store to discuss the problem. About 2 weeks later, all of the salesmen including Manne, the union steward, attended this meeting. The salesmen unanimously, including Manne, elected Jagust as their spokesman to present their opposition to the changed credit procedure to the Union, because they felt that Jagust was better able to present their point of view than Manne. A few days later Jagust contacted James W. Brown, the Union's business representative, and advised him of Respondent's change in credit procedure and the employees' opposition thereto and belief that it was in violation of the contract. This was the first notice the Union received concerning Respondent's changed credit procedure. The collective- bargaining contract between Respondent and the Union contained the following provision: If the present system and procedure of signing up customers and checking their credit is changed, and in the further event that such change requires the sales employees covered by this contract to do the work of sign-up and credit employees, then this contract may be reopened for negotiation as to additional compensation for the sales employees so affected, by giving five days notice. A few days later Brown and Edgar Sargaent, president of the Union, visited the Normandy store and discussed the employees' complaints, particularly their opposition to the new credit procedure, with Manne and Jagust. About 2 weeks later, in mid-March, P. W. Schaefer, Respondent's general manager, came to the Normandy store to discuss the employees' "grievances" with Jagust and Manne. Schaefer did not testify and the record does not reveal how he knew of any "grievance." Jagust advised Schaefer of a number of complaints the employees had, specifically their opposition to the new credit procedure and their belief that it was a violation of the contract, and that Jagust had been selected to speak for all of the employees. Schaefer made little or no comment. About 2 weeks later, in late March, Respondent's treasurer, Mr. Travers, visited the Normandy store to explain the advantages of Respondent's new credit procedure to Manne and Jagust. Jagust expressed the salesmen's opposition to the procedure and informed Travers that Jagust had been selected as spokesman for all of the salesmen at the Normandy store. On April 2 Respondent for the first time notified the Union by letter of the changed credit procedure. Sometime between April 2 and 12, a meeting between the Union and Respondent was held at the offices of the Union. Representing Respondent were President William Biederman, Silberman, Travers, Schaefer, and Schwartz, a supervisor of several stores. Brown, Sargaent, and the shop stewards including Manne from Respondent's various St. Louis and surrounding area stores represented the Union. The only employee present at the meeting who was not a steward or official of the Union was Jagust, pursuant to his request to represent the employees of the Normandy store. The new credit procedure was explained by Schaefer. Thereafter a discussion in excess of 2 hours ensued, during which various employees, particularly Jagust, expressed their opposition to the new procedure and stated that it was in violation of the contract. Jagust spoke as much if not more than anyone present. In addition to the new credit procedure, Respondent also proposed a change in working hours from 5 days and 3 nights to 4 days and 4 nights, which also met with employee opposition. Nothing in particular was decided at this meeting. On April 12 the Union held a general membership meeting concerning Respondent's two changes, at which Jagust again was a vocal leader of the opposition. Both changes were rejected by the membership. The Union officially notified Respondent of this action. As a result, on April 19, Respondent issued a memorandum changing its new credit procedure from mandatory to voluntary on the part of the salesmen. The Union took no further action with respect to the changed credit procedure. Leonard Fleck was employed by Respondent as a salesman at its North County store. He was also an executive trainee for approximately 1 year, a program under which Respondent selected and trained salesmen to become store managers . As such he was under the direct supervision of Bulejski. Fleck was a friend of Bulejski but had only met Jagust one or two times. Fleck was one of the salesmen at the North County store who objected strenuously to Respondent's changed credit procedure. Shortly after the meeting of the union and company representatives between April 2 and 12, Bulejski told BIEDERMAN FURNITURE COMPANY 59 Fleck that his friend Jagust was getting himself into trouble because Silberman did not like Jagust's attitude at that meeting. Fleck replied that he did not see how Respondent could do anything to Jagust, that he was merely a victim of being a good speaker and as such the men had appealed to him to be their spokesman. About a month later, Bulejski asked Fleck if he remembered what Bulejski had told him about Jagust. When Fleck replied that he did, Bulejski told Fleck that Respondent had a meeting of officials and was going to "get" Jagust. Fleck asked how they planned to get Jagust. Bulejski replied they planned to do so on the basis of Jagust's high sales of "X" merchandise. Fleck objected and asked Bulejski if he or Dwyer, the manager of the Normandy store, had not objected to such a proposal at the meeting. Bulejski replied that Dwyer had stated at the meeting that he thought Respondent was making a mistake, but Silberman had told him that they knew what they were doing. Bulejski further informed Fleck that Bulejski had been instructed to order Dwyer to talk to Jagust about his sales of X merchandise. Bulejski denied such conversations with Fleck. Bulejski admitted that later, at the time of Jagust's transfer from the Normandy store, hereinafter discussed, Fleck objected strenuously and said that Respondent was out to get Jagust on the basis of his high sales of X merchandise because he had been outspoken with the Union against Respondent's changed credit procedure and proposed change of hours. I credit Fleck. Respondent classified its merchandise into three general categories , known as S, 0, and X. S merchandise was of the best quality and carried the highest markup. Naturally Respondent desired to sell the highest possible amount of this category. 0 merchandise had a medium markup. X merchandise carried the lowest markup and generally was advertised or sale merchandise. Respondent did not want its salesmen to sell large amounts of X merchandise because Respondent 's margin of profit was much smaller whereas the salesman's commission was the same, namely, 3 percent. Respondent had a general goal or policy of wanting its salesmen's overall volume of sales to consist of approximately 70 percent S merchandise, 20 percent 0 merchandise, and 5 percent X merchandise. Because of this policy some salesmen deliberately tried to avoid selling X merchandise in order to prevent their monthly percentage of such sales from exceeding the approximate 5 percent desired by Respondent. Respondent issued monthly sales volume reports of all salesmen at each store. These reports listed the salesmen from top to bottom in the order of their total S and 0 sales and total volume, but in inverse order from bottom to top on their X sales. In other words, the salesmen who sold the largest amount of X merchandise was listed on the bottom of the X list. Jagust had been employed at the Normandy store since May 1960, was one of Respondent's top salesmen, and consistently ranked among the top 4 salesmen at the Normandy store, which normally employed 12 salesmen. During this same 5-year period, he consistently ranked among the high three or four in sales of X merchandise. This of course meant that he consistently ranked near the bottom of Respondent's monthly inverse list of X sales. On several occasions Fister, manager of the Normandy store until about April 10, had informally spoken to Jagust about his X sales, suggesting that he should improve them; i.e., decrease his sales of X merchandise. Dwyer, who became manager of the Normandy store on or about April 10, had as a salesman previously worked with Jagust and considered him one of the top men in Respondent's employ and in the Normandy store. After Jagust's outspoken and successful opposition to Respondent's changed credit procedure, Silberman on several occasions instructed Bulejski to discuss with Dwyer Jagust's high sales of X merchandise, with the object of having Dwyer discuss same with Jagust. Dwyer spoke to Jagust on several occasions about his X sales, pointing out that they were high. On each occasion Dwyer did so pursuant to instructions from Bulejski. Bulejski testified that he discussed the sales performance of the various men with the store managers as a regular routine and that therefore from time to time he called Fister's and Dwyer's attention to Jagust's high sales of X merchandise. However, an analysis of Bulejski's testimony coupled with that of Dwyer and Silberman makes clear that on such occasions Silberman had discussed Jagust's sales of X merchandise with Bulejski and suggested or directed that he discuss the matter with Dwyer. Dwyer could not recall Bulejski ever having discussed with him the X merchandise sales of any other salesman, but was certain that each time he spoke to Jagust about his sales of X merchandise it was because of Bulejski's instructions to do so. On August 30 Silberman directed Bulejski to order Dwyer to issue a written reprimand to Jagust concerning his sales of X merchandise. This reprimand listed Jagust's sales of X merchandise as a percentage of his total sales for each of the preceding 7 months and noted that Jagust had the highest percentage of sales of X merchandise in March, April, and July. His percentages ranged from 4.4 to 11.9. Both Dwyer and Bulejski admitted that they had never before issued or been instructed to issue a written reprimand to any salesman for any reason, including sales of X merchandise. Jagust had never been warned that his X sales might result in a written reprimand, transfer, or any other action. Dwyer opposed the issuance of the written reprimand, because he felt that it was unnecessary and Jagust could decrease his sales of X merchandise. On or about October 1 Manne resigned as the Union's steward at the Normandy store and the employees elected Jagust as his successor. Dwyer learned of this the same day and Bulejski a few days thereafter. The normal procedure of the Union was to notify Respondent whenever a new steward was selected. Respondent's monthly reports concerning the sales, volume of the salesmen normally were issued about the 15th day of the following month. On or about October 20, shortly after the sales figures for September were available, Silberman held a meeting of Respondent's officials to consider the transfer of Jagust from the Normandy store to Respondent's Franklin store. The meeting was attended by Bulejski, Dwyer, and several other store managers. Dwyer opposed Jagust's transfer. While the matter was discussed at the meeting, Silberman had already decided to transfer Jagust. Silberman told Bulejski and Dwyer that it was because of Jagust's continued high sales of X merchandise. At the same meeting it was decided to transfer salesman Jesse Smith from the Normandy to the Southwest store because he was a good salesman, the Southwest store needed experienced and well-qualified help, and a decline in business at the Normandy store had resulted in the need for one less salesman there. Another salesman was transferred to the Normandy store after the transfer of Jagust and Smith. Silberman instructed Bulejski to notify Jagust on October 30 that he was being transferred to the Franklin store as of November 1 because of his continued high sales of X merchandise in the hope that the transfer might improve his sales performance. 60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On October 30, Bulejski so notified Jagust . Jagust objected and offered to resign , but on Bulejski's suggestion that Jagust report to the Franklin store on November 1 did so. Jagust and Smith filed grievances with the Union concerning their transfers. Brown and Sargaent discussed Jagust's grievance with Respondent. Respondent advised the Union that the reason for Jagust's transfer was his continued high sales of X merchandise. Several months after Jagust 's transfer to the Franklin store, he was relieved of his duties as steward at the Normandy store and the employees selected a successor. The Union decided to hold Jagust's grievance in abeyance pending the outcome of the instant proceeding. After Jagust's transfer to the Franklin store, his sales and income declined substantially , as will be considered more fully hereinafter. C. Interference, Restraint , and Coercion The complaint alleged that Respondent, through its Supervisor Bulejski , told an employee that Respondent would "get" Jagust on the basis of Jagust's X sales because he had engaged in activities on behalf of the Union and concerted protected activities . It has been found hereinabove that Bulejski made such a statement to Fleck. I accordingly conclude and find that by such statement, warning, or threat , Respondent engaged in interference , restraint , and coercion in violation of Section 8(a)(1) of the Act. D. Discrimination in Hire and Tenure and Terms and Conditions of Employment The complaint alleges that on or about November 1 Respondent transferred Jagust from his position as salesman at the Normandy store to a less desirable position as salesman at the Franklin store because of his union and concerted activities. The record establishes beyond dispute that Respondent's assigned reason for Jagust's transfer was his continued high sales of X merchandise. Bulejski told Dwyer that that was the reason for the transfer, and Silberman told both of them at the meeting on or about October 20 that that was the reason for transferring Jagust . Bulejski advised Jagust that was why he was being transferred. Silberman and Schaefer also advised the Union at the grievance meeting that that was the only reason for Jagust's transfer . The record establishes clearly that Respondent's assigned reason for transferring Jagust, his continued high sales of X merchandise , was in fact a pretext and that the real reason for transferring Jagust was his outspoken and successful opposition to Respondent's changed credit procedure and his subsequent selection as shop steward at the Normandy store. As a result of the transfer Jagust's income declined substantially and he was replaced as steward at the Normandy store. For over 5 years Jagust had been one of Respondent's top salesmen , ranked among the first four in total sales at the Normandy store. In the written reprimand of August 30, Respondent listed Jagust's sales of X merchandise on a percentage basis for the preceding 7 months. Thereafter, the August and September figures became available and were considered by Silberman at the meeting on October 20 when he announced his decision to transfer Jagust . Jagust's monthly sales of X merchandise as a percentage of his total sales for the 10 months prior to his transfer were: January 9.73% February 4.40% March 11.90% April 11.26% May 5.12% June 6.30% July 10.27% August 8.86% September 13.03% October 7.12% Total 8.71% Although the assigned reason for Jagust's transfer was his continued high X sales, another salesman at the Normandy store had a higher percentage of X sales for the 10-month period and two other salesmen had approximately the same percentage of X sales. For the 10- month period Roma Scott had a total of 10.81 percent of X sales. Jagust had 8.71 percent, Smith 8.42 percent, and Eder 8.31 percent. When Jagust was given the written reprimand in August because of his high percentage of X sales for 7 months and having been the highest in 3 of those months, Scott had a higher percentage of X sales for the same period and was the highest in the other 4 months. Scott was never given any reprimand or warned about his X sales. Dwyer admitted that Bulejski requested him to talk to Jagust about his X sales, but said that he could not recall Bulejski ever asking him to speak to either Scott or Smith about their X sales. At the time Bulejski advised Jagust of his transfer, Bulejski referred to Jagust 's September percentage, 13.03, of X sales. In August and September, the very period under consideration , Smith had respective percentages of 19.8 and 10.86 of X sales, a 2 months' total substantially in excess of Jagust. Nevertheless Dwyer could not recall ever having spoken to Smith about his X sales. Respondent admitted that Smith's high X sales had nothing to do with his transfer. At the meeting on October 20 concerning the transfers it was decided to transfer Smith to the Southwest store because Respondent needed an experienced, outstanding salesman and Smith filled the bill. In describing Smith as a good , experienced salesman, the type needed at the Southwest store, Respondent clearly revealed its true motive in transferring Jagust . Jagust's total sales and hence rank was substantially higher than Smith, and Smith's percentage of X sales for the 10 months of 1965 was approximately the same. Silberman testified that Respondent hoped to attain monthly sales of from $12,000 to $15,000 per salesman . Respondent's records establish that for the 10 months in question Jagust's total sales exceeded $150,000, or $15,000 a month. Thus Jagust had exceeded the goal stated by Silberman. In addition, Jagust ranked fourth in total sales among the 12 salesmen . Within the same period Smith's total sales were $130,000, including 8.42 percent of X sales. Yet Silberman and Bulejski both stated that Smith was selected for transfer to the Southwest store because he was an experienced and outstanding salesman. Dwyer's testimony on the subject of Jagust 's transfer was somewhat confused . Dwyer first testified that he was against issuing the written warning in August and that at the October meeting he opposed transferring Jagust. He later testified that after the August report of X sales came out, he "gave up" on Jagust and no longer cared about or BIEDERMAN FURNITURE COMPANY 61 opposed the transfer. Jagust's August percentage of X sales was 8 .86, an improvement over his July figure contained in the written warning . On cross-examination Dwyer said that he was opposed to giving Jagust the written warning but was not opposed to his transfer at the time of the October meeting. He again changed his testimony and said that he told Silberman at that meeting he did not agree with the decision to transfer Jagust. It seems clear that Dwyer was in the middle. His situation might best be described by his own statement: "So I figured due to the fact that I was against the warning and against this [the transfer], I dust didn't care because I was in the middle." Dwyer admitted that although Smith's percentage of X sales went from 7.2 in July to 19.8 in August and Scott's went from 9 .5 in July to 15.2 in August (compared with Jagust 's August sales of 8.8 percent), he did not mention these high X sales to either Scott or Smith. Smith's 19.8 percent was substantially higher than any percentage ever attributed to Jagust. It seems clear that Respondent's real reason for" transferring Jagust was his outspoken and effective opposition to Respondent 's changed credit program, culminated by his election as shop steward on October 1, which meant that thereafter he would be the official union spokesman for the employees at the Normandy store. Silberman's opinion of Jagust and views concerning him are best demonstrated by Silberman's testimony. Silberman testified that he looked more closely at the sales records of Jagust and certain others than in general because of personal experiences that he had with them. He said that because of this experience he felt that perhaps Jagust did not have the necessary exuberance and was not a man that could sell merchandise . Silberman said that he was not convinced in his own mind that Jagust could sell successfully. On cross-examination Silberman denied his prior testimony that he had personal experience with Jagust and said that could only have been true if Silberman had worked with Jagust , which he had not. He then stated that he had a personal feeling that Jagust, perhaps because of his lack of exuberance , was not going to make it as a salesman because in Silberman's personal contacts with him Jagust always seemed to be somewhat disgruntled and unhappy . Silberman's statement that he felt Jagust was not going to make it as a salesman is in sharp contrast to the undisputed fact that Jagust was one of Respondent' s top salesmen during his entire employment. In addition , Respondent twice offered Jagust a position as an executive trainee to become a store manager, the second time by Silberman in February just prior to the introduction of the changed credit procedure and Jagust's opposition thereto. This clearly demonstrated that prior to such opposition Silberman considered Jagust of management caliber. Added to Bulejski's admission that Respondent was going to get Jagust on the basis of his X sales because of his outspoken opposition to Respondent's credit procedure at the meeting of the officials of Respondent and the Union , it seems quite clear, and I find, that Respondent 's real reason for transferring Jagust was because of his successful opposition within the Union to Respondent's changed credit procedure and his subsequent selection as union steward. Contrary to Respondent's testimony, the record, including company records, established that Jagust's transfer was to a less desirable position resulting in a substantial decline in his income . The Franklin store was in downtown St. Louis. Jagust lived near the Normandy store. The transfer required 45 to 55 additional minutes travel each day. More significantly , his earnings which were based on commission were substantially reduced as a result of the transfer. Respondent's records established that Jagust's income was reduced from approximately $600 a month, on the basis of average sales of $15,000 a month for the 10 months of 1965, to approximately $450 a month, on the basis of average sales of approximately $10,130 a month for the 7 months at the Franklin store. Silberman testified that he believed that the change to the downtown store would be good for Jagust and that often such a change had a productive result . Silberman also stated that the downtown store was Respondent's largest single volume unit and that the opportunities for a salesman were as good there as at any of Respondent's stores. Bulejski testified that the transfer was to try to improve and keep Jagust as an employee, and that he could expect to improve his sales performance because it was easier to sell at the Franklin store. Respondent's records demonstrate the contrary . Comparing the first 5 months of 1966 at the downtown store with the same 5 months of 1965 at the Normandy store, the total volume of sales and the average sales volume achieved by each of the salesmen was substantially greater at the Normandy store, in spite of Respondent 's testimony that during these periods sales were declining at the Normandy store and increasing at the downtown store. A comparison of the exhibits showing the sales for such periods at both stores clearly establishes this. A few examples demonstrate the inaccuracy of Silberman 's and Bulejski's statements concerning the opportunities at the downtown store and reveal why Jagust suffered a substantial decline in income . No one at the Normandy store ever sold under his quota , $360 a day or $1,800 a week . Respondent's records for the first 5 months of 1966 at the Franklin store reveal that in January four salesmen failed to meet their quota, in February six, in March three , in April five, and in May one. Jagust never failed to make his quota in 5 years at the Normandy store. Jagust's total sales in the first 5 months of 1965 at the Normandy store were $62,584, during which time he was only the fourth highest salesman . In contrast , the highest salesman at the Franklin store during the first 5 months of 1966 achieved total sales of $60,498. This alone demonstrates the difference in sales opportunities at the two stores . For the same 5-month period at the Franklin store in 1966, Jagust's total sales amounted to $39,623. Another obvious contrast is that in February 1966, while Jagust ranked third in total sales volume at the Franklin store, his sales totalled only $8 ,719 compared with $12,612 for the same month of the prior year at the Normandy store. In fact, the highest salesman at the Franklin store sold only $10,241 in February 1966. Further comparisons demonstrate the same conclusion . It should also be noted that the 1965 sales figures for the salesmen at the Normandy store do not include the months of November and December, which the record establishes were the highest sales volume months. Their inclusion would make the average of sales at the Normandy store even higher. A preponderance of the reliable, probative, and substantial evidence in the entire record convinces me, and I find, that Respondent on November 1 transferred Jagust to a less desirable position because of his union and concerted activities , in violation of Section 8(a)(3) and (1) of the Act. On the basis of the foregoing findings of fact and upon the entire record in the case , I make the following: 62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce, and the Union is a labor organization , within the meaning of the Act. 2. By interfering with , restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 3. By transferring Jagust to a less desirable position, Respondent engaged in discrimination to discourage membership in the Union, thereby engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent engaged in certain unfair labor practices , I shall recommend that it cease and desist therefrom and that it take certain affirmative action of the type which is conventionally ordered in such cases as provided in the Recommended Order below, which I find necessary to remedy and remove the effects of the unfair labor practices and to effectuate the policies of the Act. Because of the character and scope of the unfair labor practices found, I shall recommend a broad cease-and- desist order.2 Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following: RECOMMENDED ORDER Biederman Furniture Company, its officers, agents, successors , and assigns , shall: 1. Cease and desist from: (a) Advising, warning, or threatening its employees that Biederman Furniture Company plans or intends to take reprisals against other employees because of their union or concerted activities. (b) Discouraging membership in Local 655, Retail Store Employees Union, Retail Clerks International Association, AFL-CIO, or any other labor organization of its employees, by transferring employees to less desirable positions or in any other manner discriminating against employees in regard to hire or tenure of employment or any term or condition of employment. (c) In any other manner interfering with , restraining, or coercing its employees in the exercise of rights guaranteed to them by Section 7 of the Act. 2. Take the following affirmative action which will effectuate the policies of the Act: (a) Offer Herbert Jagust immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay he may have suffered by payment to him of a sum of money equal to that which he would normally have earned from the date of his transfer, November 1, 1965, to the date of such offer of reinstatement , less his net earnings during said period (Crossett Lumber Company, 8 NLRB 440), said backpay to be computed on a quarterly basis in a manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, together with interest thereon at the rate of 6 percent per annum (Isis Plumbing & Heating Co., 138 NLRB 716). (b) Notify the above-named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (c) Preserve and, upon request, make available to the Board or its agents , for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under this Order. (d) Post at its office and at all of its stores in the St. Louis area copies of the attached notice marked "Appendix."3 Copies of said notice, to be furnished by the Regional Director for Region 14, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, 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. (e) Notify the Regional Director for Region 14, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith.4 2 N L R B v Express Publishing Company, 312 U S 426 (1941), N L R B v Entwistle Mfg Co , 120 F 2d 532 (C A 4, 1941), Consolidated Industries, Inc , 108 NLRB 60 (1954), and cases cited therein 1 In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order " " In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify the Regional Director for Region 14, in writing , within 10 days from the date of this Order , what steps Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended , we hereby notify our employees that: WE WILL NOT discourage membership in Local 655, Retail Store Employees Union , Retail Clerks International Association , AFL-CIO, or any other labor organization, by transferring employees to less desirable positions or in any other manner discriminating against employees in regard to hire or tenure of employment or any term or condition of employment. WE WILL NOT advise , warn , or threaten our employees that we plan or intend to take reprisals against other employees because of their union or concerted activities WE WILL NOT in any other manner interfere with, restrain , or coerce our employees in the exercise of any of the rights guaranteed them by the National Labor Relations Act. BIEDERMAN FURNITURE COMPANY WE WILL offer Herbert Jagust immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay he may have suffered as a result of our discrimination against him. All of our employees are free to become or remain, or refrain from becoming or remaining, members of the above-named or any other labor organization, except to the extent that such right may be affected by an agreement conforming to the provisions of Section 8(a)(3) of the National Labor Relations Act requiring membership in a labor organization as a condition of employment. BIEDERMAN FURNITURE COMPANY (Employer) Dated By 63 (Representative) (Title) Note: We will notify Herbert Jagust if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. 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. If employees have any question concerning this notice or compliance with its provisions , they may communicate directly with the Board's Regional Office, 1040 Boatmen's Bank Building, 314 North Broadway, St. Louis, Missouri 63102, Telephone 622-4167.