Berger Furniture Co.

BERGER FURNITURE COMPANY 415 Berger Furniture Company and Paul K. Bopp and Vickie A. Huebner. Cases 14-CA-5214 and 14-CA-5284 June 30, 1970 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS MCCULLOCH AND BROWN On May 4, 1970, Trial Examiner Gordon J. Myatt issued his Decision in the above-entitled con- solidated proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommend- ing that it cease and desist therefrom and take cer- tain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that the Respondent had not engaged in cer- tain other unfair labor practices alleged in the com- plaint and recommended that these allegations be dismissed . Thereafter, the General Counsel filed ex- ceptions to the Trial Examiner's Decision with a supporting brief, and the Respondent filed cross-ex- ceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional 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, the brief, and the entire record in these cases, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner, except as modified below. The Trial Examiner concluded that employee Vickie Huebner was discharged because she failed to meet the required sales quota which had been negotiated between the Union and the Respondent within the prescribed period of time, even though, as he further fount, the surrounding circumstances clearly show that the Respondent welcomed this opportunity to rid itself of a leading union ad- ' We hereby correct the following inadvertent errors in the Trial Ex- aminer's Decision, which do not affect the conclusions therein or our adop- tion thereof In fn 18, Huebner's sales total for April 19, 1969, the date of her discharge , was stated as amounting to $3,788 15, when in fact her sales for that day totaled $ 2,129 90, and in the same footnote it is clear that Huebner's sales amounted to $880 91 for the first week after the layoff and to $45 95 for the second week thereafter In addition, in sec C, 2, par 3, Gravois is mispelled In sec C, 4, par 5, it is clear that Warren Berger herent. We find merit in the General Counsel's ex- ceptions to this finding.' As the Trial Examiner found, the Respondent felt betrayed and harbored a deep-seated resentment toward its employees because they had voted for the Union. Huebner, who was the union observer at the election and who was looked upon by the Respondent as the union steward because she was the oldest employee in terms of service, was an ob- vious target for the expression of this resentment. On several occasions expressions of hostility and retaliation were made to Huebner by her super- visors. Moreover, although she had been employed by the Respondent since September 1967, and had on one occasion received an increase in wages and benefits in order to persuade her to remain with the Respondent, she became the object of constant criticism of her work by the Respondent after the election. It was this attitude on the part of the Respondent which ultimately led to Huebner's discharge. As the Trial Examiner found, the Respondent had on March 24, 1969, discriminatorily laid off all of its employees including Huebner. As the result of the Union's threat to strike the Respondent, Huebner, and three other employees were recalled by the Respondent on March 31. At about 4:30 p.m. on the last day of the third week following her return to employment, the Respondent notified Huebner that she was being discharged for failing to meet her sales quota. A sales quota of $2,000 a week for 3 consecutive weeks, or, as the record shows, alternatively, of $6,000 for the entire 3- week period was established subsequent to the layoff as a condition of employment at the sug- gestion of Union Representative Robert Kelly. While Huebner had had poor sales for the greater part of the 3-week period, on the day of her discharge she had a sale amounting to over $2,000 and at the time of her discharge her total sales for the entire 3-week period amounted to $4,705.01. Huebner's workday, however, was not to terminate until 9 p.m. that evening and there was a possibility that she could have made her quota during the remaining hours. Whether she would in fact have done so is a matter of uncertainty. Respondent, however, did not wait to find out. We are per- suaded on all the evidence that the Respondent was motivated by a desire to rid itself of all the union proponents, and particularly Huebner, because the rather than Raymond Berger told Huebner she was discharged Finally, in fn 19, the record shows that prior to the layoff Bremel worked until 9 p in on weekdays rather than to 9 30 'Chairman Miller finds insufficient evidence to establish that Huebner was discharged for unlawful reasons, rather than for the reasons found by the Trial Examiner He would, therefore , affirm the Trial Examiner's con- clusions as to Huebner 184 NLRB No. 46 416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent believed her to be the prime supporter of the Union, and that, motivated by that desire, it seized upon the asserted failure of Huebner to meet her sales quota as a pretext to discharge her. It is apparent to us that but for her union activities Huebner would not have been discharged. We therefore find, contrary to the Trial Examiner, that by discharging Huebner because of her union ac- tivities the Respondent violated Section 8(a)(3) of the Act. The Trial Examiner also found that during the third week in April Warren Berger asked Huebner who was responsible for bringing the Union into the store in the first instance, and sought to find out if Paul Bopp was involved with the organizational ef- fort. Berger also at this time asked Huebner what the employees hoped to gain . In our opinion, this interrogation of Huebner as to the union activities of Respondent's employees, which served no legiti- mate business purpose , can only be regarded as coercive when considered in the context of the Respondent's repressive and retaliatory conduct after the election. Accordingly, we find that the Respondent by such conduct violated Section 8(a)(1) of the Act. The Trial Examiner found that the Respondent's layoff of all its employees on March 24, 1969, was discriminatorily motivated . The record shows that only four of the employees were recalled and then only on March 31, 1969. The Trial Examiner did not believe that under the circumstances a backpay remedy was required. We disagree. The mere fact that the Respondent negotiated the recall of four of the employees and preferential recall status for a fifth with the Union does not justify relieving the Respondent of its backpay liability when the public interest is involved . Accordingly, we find that the remedy will best effectuate the purposes of the Act if it embraces the usual backpay requirement as well as the posting of a notice . We shall so order. The Remedy We have found, contrary to the Trial Examiner, that the Respondent engaged in certain additional unfair labor practices in violation of Section 8(a)(3) and (1) of the Act. We shall therefore order that the Respondent cease and desist therefrom and take certain additional affirmative action. We have also found, contrary to the Trial Ex- aminer, that an additional backpay remedy is needed beyond notification that the Respondent will not engage in similar conduct in the future, in order to fully remedy Respondent's unlawful layoff on March 24, 1.969. We shall revise the Recom- mended Order accordingly. Upon the basis of the foregoing findings of fact and upon the record as a whole, we make the fol- lowing amended conclusions of law. AMENDED CONCLUSIONS OF LAW Substitute the following conclusion of law for the Trial Examiner 's seventh conclusion of law: "The Respondent violated Section 8(a)(3) and (1) of the Act by discharging employee Vickie Huebner on April 19, 1969." Add the following conclusion of law after the Trial Examiner's last conclusion of law: "The Respondent by interrogating employee Vickie Huebner about its employees' union activi- ties engaged in conduct violative of Section 8(a)(1) of the Act." ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner as modified below and hereby orders that the Respondent, Berger Furniture Company , St. Louis, Missouri, its officers , agents, successors, and assigns, shall take the action set forth in the Trial Examiner 's Recom- mended Order , as so modified: 1. Insert the following as paragraphs 1(e) and 1(f) before the present paragraph 1(e) and letter the latter as paragraph 1(g): "Unlawfully discharging employee Vickie Huebner because of her union activities." "Interrogating employee Vickie Huebner as to her employees ' union activities in a manner con- stituting a violation of Section 8(a)(1) of the Act." 2. Add Vickie Huebner 's name after that of Catherine Bremel in paragraph 2(a). 3. Insert the following as paragraph 2(b) and letter the subsequent paragraphs accordingly: "Make the employees named below whole for any loss of earnings they may have suffered by reason of Respondent's unlawful layoff of March 24, 1969 . In making these employees whole, the Respondent shall pay them a sum of money equal to that which they would have earned as wages from March 24, 1969, to March 31, 1969, in the case of the first four employees named below and from March 24, 1969, to the date of the offer of reinstatement to the last named employee , less any net earnings received during said period. Backpay shall be computed on a quarterly basis in a manner consistent with the Board policy described in F. W. Woolworth Company, 90 NLRB 289, with interest thereon at 6 percent per annum computed in the BERGER FURNITURE COMPANY manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. The employees entitled to backpay are: Catherine Bremel , Toni Scott, James Faerber, Vickie Huebner, and Paul Bopp." 4. Add Vickie Huebner's name after that of Catherine Bremel in the sixth indented paragraph of the Appendix 5. Add the following paragraphs after the last in- dented paragraph of the Appendix: WE WILL NOT question our employees about their union activities in a manner constituting a violation of Section 8(a)(1) of the Act. WE WILL make whole the employees named below for any loss of earnings they may have suffered because of our discrimination against them on March 24, 1969: Catherine Bremel Toni Scott James Faerber Vickie Huebner Paul Bopp TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE GORDON J. MYATT, Trial Examiner: Upon a charge filed by Paul K. Bopp, an individual, in Case 14-CA-5214, on July 30, 1969,' and upon a charge filed by Vickie A. Huebner, an individual, in Case 14-CA-5284, on September 15, and subsequently amended on September 30, a consolidated com- plaint and notice of hearing was issued by the Re- gionz Director for Region 14. The complaint al- legec t' t Berger Furniture Company (hereinafter referrer to as the Respondent) violated Section 8(a).1) .,f the Act by promising employees benefits in the event that they voted against union represen- tation, by creating an impression of surveillance of employees' union activities, by threatening em- ployees with discharge because of activities on be- half of the Union, and by unlawfully interrogating employees about their union activities and the Unless otherwise noted , all dates herein refer to 1969 ' The Respondent 's answer was not filed until after the trial commenced in this case This was brought about by the fact that the Respondent filed a motion for a bill of particulars after the complaint issued This motion was the subject of an order issued by Trial Examiner Schneider on October 24, in which he required the General Counsel to supply the Respondent with the names of the employees alleged to have been laid off because they selected the Union as their representative He also required the General Counsel to provide a more specific description of the "other concerted ac- tivities" of the employees which the complaint cited as one of the motivat- ing factors resulting in the alleged unlawful conduct In all other respects the motion was denied The General Counsel supplied the Respondent with the names of the employees , but requested special permission of the Board to appeal the ruling concerning the "other concerted activities " On November 14, the last working day before the trial began , the Board de- nied the General Counsel 's request At the beginning of the trial , counsel for the General Counsel moved to strike this phrase from the complaint 417 union activities of other employees. The complaint also alleged that the Respondent violated Section 8(a)(3) of the Act by unlawfully laying off em- ployees because of union membership and activities on behalf of the Union, and by unlawfully discharg- ing employees for the same reason. The Respon- dent's answer2 denied all of these substantive al- legations of the complaint and specifically denied the commission of any unfair labor practices. This case was tried before me in St. Louis, Mis- souri, on November 17, 18, and 19. All parties were represented by counsel and were afforded full op- portunity to be heard and to introduce relevant evidence on the issues. Briefs were submitted by counsel for the General Counsel and for the Respondent and they have been fully considered by me in arriving at my decision in this matter. Upon the entire record in this case, including my evaluation of the testimony of the witnesses, based on my observation of their demeanor and upon consideration of the relevant evidence, I make the following: FINDINGS OF FACT 1. JURISDICTIONAL FINDINGS The Respondent is a Missouri corporation en- gaged in the retail sale and distribution of furniture, appliances, household goods, and related products. The Respondent maintains its principal office and warehouse in St. Louis County in the State of Mis- souri and also maintains two retail stores, described herein as the Gravois and Manchester stores, in the same county. During the year ending August 31, 1969, the Respondent in the operation of its busi- ness purchased and caused to be transported and delivered to its warehouse and retail stores, from points located outside the State of Missouri, furni- ture, appliances, and household goods valued in ex- cess of $50,000. During a similar period the Respondent sold goods and merchandise valued in excess of $500,000. On the basis of the foregoing, I find that the Respondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. and the motion was granted over the Respondent 's objection The Respon- dent contended that the General Counsel was seeking to avoid compliance with the Trial Examiner 's pretrial ruling, and further that it had been preju- diced in preparing its defense as the allegation containing this phrase was in the conjunctive rather than the disjunctive The Respondent then moved to strike all of the substantive allegations contained in pars 5 and 6 of the complaint This motion was denied and leave was granted to answer orally on the record with a formal written answer to be supplied during the course of the trial In its brief the Respondent renews its motion to strike the substantive al- legations contained in pars 5 and 6 of the complaint , alleging substantially the same grounds urged at the trial As I have found that the striking of the phrase "other concerted activities" did not prejudice the Respondent in the preparation of its defense in this case, and as the Respondent fully an- swered the allegations during the trial and ably presented its defense, 1 hereby deny the renewed motion to strike 418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD If. THE LABOR ORGANIZATION INVOLVED Retail Store Employees ' Union , Local No. 655, affiliated with the Retail Clerks International As- sociation , AFL-CIO ( hereinafter called the Union), is, and has been at all times material herein , a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Facts The Respondent is a family-owned and operated business enterprise . The four Berger brothers are the corporate officials and manage the Respon- dent's day-to-day operations. Robert Berger is pre- sident, Warren Berger is executive vice president, Edwin " Bud" Berger is vice president as well as assistant secretary and general manager of the Gravois store, and Raymond Berger is treasurer and general manager of the Manchester store. Some time during the latter part of January, the Union began its campaign to organize the sales em- ployees at both of the Respondent's stores. On February 7, Robert Kelly, the union organizer, met with Robert Berger and claimed to represent a majority of the sales employees. Kelly offered to submit the authorization cards he possessed to a third party check, but the Respondent asked for time to consult with counsel. On February 13, the Union filed a representation petition with the Board's Regional Office (Case 14-RC-6247). A consent election agreement was entered into and a representation election was held on March 12. The unit embraced all of the Respondent's sales person- nel at both stores excluding office clerical and professional employees, guards, supervisors, and all other employees. In keeping with the Board's procedures, the Respondent furnished an "Excel- sior" list indicating that there were three sales em- ployees at the Gravois store (Paul Bopp, Katherine Bremel, and Toni Scott), and three at the Manchester store (John Corea, James Faerber, and Vickie Huebner). According to the tally of ballots five employees voted in favor of union representa- tion, and Faerber's ballot was challenged. On March 20, the Regional Director certified the Union as the collective-bargaining representative of the sales employees. B. Events Prior to the Election Paul Bopp began working for the Respondent on December 3, 1968 , as a salesman at the Gravois store. As noted above, the Union began its organiz- ing campaign during the latter part of January. Bopp testified that approximately the last week in January, he was invited by Warren Berger to go to ' Scott, also a witness in these proceedings , made no mention of this par- ticular conversation with W arren Berger 4 Although the Respondent admitted that Ryan was a supervisor, it de- lunch and during the course of the meal Berger questioned him about his prior employment at Biederman's, a large retail furniture store located in the St. Louis area. Biederman's sales employees were represented by the same union that was seek- ing to organize the Respondent's employees. Ac- cording to Bopp, Berger wanted to know the amount of the sales commissions given by Biederman and the general working conditions which existed under the terms of the union con- tract. Bopp further testified that when he and Berger were returning to the Respondent's store, he asked if Berger were inquiring about the conditions at Biederman's because the Union was attempting to organize the Respondent's employees. According to Bopp, Berger replied in the affirmative. Berger admitted asking Bopp about the working conditions under the union contract at Biederman's. He denied, however, telling Bopp that he was interested because the Union was not at- tempting to organize the Respondent's employees. Bopp testified that he had another conversation with Warren Berger approximately 2 weeks later. Bopp stated that he and employee Scott were together in the Gravois store when Berger came up and started talking to them. Berger, according to Bopp, told the two employees that, if the Union became their bargaining representative, all of the employees would have to sell more furniture because the Respondent would not be able to keep employees who were not producing. Berger denied making statements of this nature to the sales em- ployees.3 Under the Respondent's organizational structure a sales manager was assigned to each store in addi- tion to the two Bergers who were general managers. Jack Ryan was the sales manager of the Manchester store and Carl Sambo held this position at the Gravois store.4 Shortly after the representation peti- tion was filed, Robert Berger held a meeting with his three brothers, Ryan, and Sambo. This meeting was foi the purpose of instructing the management official how to conduct themselves regarding em- ployee :luestions concerning the Union and the Compan y's policy toward unionization. Berger in- structed them to keep a "hands off" attitude and not to interfere with matters relating to the Union. In spite of Berger's admonition to the managers, the testimony of Bopp, Scott, and Bremel indicates that they engaged in frequent conversations with Sambo concerning the Union. Sambo encouraged them to join the Union and indicated that by so doing they could improve their working conditions. Bopp testified that approximately 4 days prior to the election, Sambo called the three employees to the rear of the store. Sambo told them if the con- versation were repeated, he would deny all that he said. He then informed the employees that the receptionist was spying on them for the Respon- nied that Sambo possessed similar status Sambo's status at the Gravois store is treated subsequently in this decision BERGER FURNITURE COMPANY 419 dent. According to Bopp, Sambo stated that all of the sales employees were in danger of losing their jobs and that his job was also in jeopardy because the Berger brothers would find fault with their per- formance and release them. Bremel recalled the conversation with Sambo, but fixed the date as March 24-after the election. On cross-examina- tion Bremel admitted stating in her affidavit for the Board agent investigating the case that Sambo's re- marks did not relate to the Union. Scott also testified about this particular conversation with Sambo, but was unable to recall whether it oc- curred before or after the election. By all accounts the Respondent held two meetings at each store with the employees prior to the election. Although the record is not clear as to when the initial meetings were held, it is apparent that they took place during the latter part of February. Robert Berger was the principal spokesman in each instance. He had a copy of a collective-bargaining contract between Biederman and the Union with him, and he discussed the terms of this agreement as it would apply to the Respon- dent's employees. Bremel and Scott testified that Bremel asked if the employees could work out their differences with the Respondent in the event the Union was defeated in the election. According to these witnesses, Berger replied that he was not at liberty to comment on this, but "it might be possi- ble."-' Huebner asked virtually the same question during the meeting at the Manchester store. She testified that Berger responded by saying he was not at liberty to comment on what the situation would be if the Union didn't get in. The second meeting with the employees at each store was held 2 days before the election. Again Robert Berger was the principal speaker and he read from a prepared text. In essence he asked the employees to vote against the Union because the provisions in the union contract with Biederman- which he felt would be similar to any contract negotiated with the Respondent-were more restrictive and less rewarding than their present terms of employment. He also urged the employees to give the Respondent a chance to prove itself and to postpone any thoughts of having a union for at least a year. There is testimony that Ryan also spoke to the Manchester store employees about union represen- tation prior to the election. Huebner testified that on March 11 she and employee Coreae were talking in the Manchester store when Ryan came up and started discussing the Union. Huebner stated that Ryan questioned the need for the employees to have a union and asked what they hoped to gain from it. According to Huebner, Ryan went on to say that in the past there had never been a layoff when business was slow, but that he would not be surprised if all of the employees, including himself, were out of a job if the Union were voted in. Ryan denied making any statements to the employees concerning the Union, either before or after the election. The day of the election Bopp and Huebner were scheduled for their regular day off. Huebner was the employee observer for the Union during the balloting and was present at both stores.' Bopp ap- peared at the Gravois store in time to cast his bal- lot, and then waited outside in the parking lot for Huebner and Kelly, the union organizer. After lunch Bopp followed Huebner and Kelly to the Manchester store and waited for them to complete the balloting. While he was at the Manchester store he was seen by Warren Berger. That evening, after the election results were known, Bremel had a conversation with Sambo in the store. Bremel testified that Sambo stated that the Berger brothers were very upset over the out- come of the election. Scott also testified to a con- versation with Sambo that evening. According to Scott, Sambo told her that the Bergers were shocked at the outcome of the election, and pre- dicted that it would go hard on Huebner because she would be the union steward and this would im- pinge on her selling time8 Scott stated that Sambo informed her that the Bergers considered Bopp to be a "union observer" because he was with Kelly and Huebner during the balloting. When Bopp returned to work the following day, he and Faerber were summoned by Sambo to the rear of the store. Bopp testified that Sambo told them that the Bergers were surprised that Huebner was the observer for the Union during the election and predicted that they would not take the election results lying down-but would find some way to release the employees. Sambo also indicated that he and Ryan felt their jobs as managers were in jeopardy. C. The Events After the Election All of the employees testified that there was a marked change in the manner in which they were treated by the Bergers after the election . They also felt that their work rules had become far more stringent . Bopp testified that he was required to un- Bopp testified that the question was put to Berger during the second meeting, held 2 days before the election According to Bopp, Berger stated that "he was not allowed to say either way, but things could be worked out " Corea was assigned to the Manchester store with Huebner when it opened in October 1968 He was not a witness in this proceeding however, as he had departed for Canada after receiving a draft induction notice in the spring ' Huebner had been employed by the Respondent longer than any of the other sales personnel She was hired in September 1967 and worked at the Gravois store until the Manchester store opened in October 1968 The Respondent then transferred her to that store In March 1968, she gave notice of intent to quit for a better payingjob, but the Respondent induced her to stay by giving her a wage increase and greater medical benefits s The testimony of all the witnesses indicates that the Respondent con- sidered Huebner to be the logical person to be steward because she was the senior employee in terms of service 420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD load furniture from trucks during his selling time, although he admitted on cross-examination that he had also performed this duty prior to the election. Bopp also stated that Bud Berger was more abrupt in speaking to him and in odering him to help ar- range furniture and picture displays in the store. He further complained that he was subjected to more criticism concerning the manner in which he wrote sales slips and was required to rewrite them on nu- merous occasions. Bremel testified that after the election the em- ployees were told that they had to remain busy at all times and that they were not to talk among themselves on the sales floor. She also testified that shortly after the election, the Respondent stopped all sales employees from making house calls at the homes of prospective customers to render decorat- ing service.' Scott testified that after the election each sales employee was assigned a specific section in the store and instructed to stay in that section; keeping it arranged and not to talk to the other em- ployees. Huebner testified that the Manchester store em- ployees were told by Raymond Berger that they had to become more professional and keep busy at all times, now that the Union was their representative. The employees were also told that they could no longer run "tabs" or cash personal checks at the store. Previously they had been allowed to get small advances when needed by putting a slip for the amount in the cash drawer and repaying it later. The employees had also been allowed to cash per- sonal checks in small amounts. After the election Ryan told the employees that Berger had ordered this practice stopped. The employees were also told that they were not considered interior decorators, but were merely sales employees and consequently they were not to make any more house calls. 10 1. Issuance of reprimands to Bopp On March 22 , Robert Berger called Bopp into his office and handed him five written reprimands. One was dated March 18, another was dated March 20, and three were dated March 22. The reprimands related to incidents alleged to have occurred between February 13 and March 19. Bopp testified that Berger instructed him to read the reprimands and when he complained that he had never been verbally warned about the alleged incidents , Berger asked if he wished to resign . Bopp refused to do so. The first reprimand accused Bopp of "direct in- subordination " in failing to follow the proper procedure for writing up a sales ticket According to the Respondent , Bopp wrote up a sales ticket, but Failed to include the terms of the sale. When this was called to his attention , he was instructed to call the customer and arrange for a down payment and for terms of final payment . The reprimand stated that when the customer was contacted on 9 Bremel had a degree in interior design and had been given permission in February to make house calls March 4 by the shipping department, she stated that Bopp never mentioned a down payment and that he advised her that she could have the merchandise on approval for a week. Bopp testified that Bud Berger spoke to him on March 5 concern- ing this particular order and asked for an explana- tion. Bopp denied selling the merchandise on ap- proval and maintained that the terms were stated on the sales ticket . A copy of the sales ticket dis- closed that the merchandise consisted of two chairs and that the total bill was $164.80. On the face of the ticket, in a section reserved for the terms of sale, Bopp indicated that the balance was due in 30 days. According to Bopp, the store followed a pol- icy of treating merchandise sold on a 30-, or 60-, or 90-day basis as a cash sale . He admitted , however, that the store also required a down payment, and that he had not asked for one from this particular customer . Bopp denied failing to request a down payment after being so instructed by Bud Berger, and he denied informing the customer that she could have the merchandise on approval. Two incidents were cited in the second repri- mand; the first of which is alleged to have occurred on February 13. The Respondent claimed that Bopp failed to include a dining room table on an ini- tial sales ticket , and that a subsequent sales ticket which he issued to adjust the matter had not been located by the warehouse. The reprimand also in- dicated that he erroneously stated the prices of two lamps on this same order, thereby overcharging the customer for one and undercharging for the other. Bopp was also accused of admitting on March 19, that he guessed at the prices quoted for these items. Bopp testified that the transaction involved a large quantity of furniture and the customer asked for a discount As he had no authority to grant this request, Bopp took the matter, up with Warren Berger . Pursuant to Berger's instructions, Bopp got the prices from the tags attached to the items and listed them on a separate piece of paper. He gave the list to Berger who then negotiated the amount of the discount the Respondent was willing to grant. Bopp stated that when he wrote up the sales slip Berger told him not to itemize the prices on the ticket, but to merely show the discounted amount as the total cost of the merchandise. The following day Sambo informed Bopp that he had ordered a table pad but had not listed a table on the sales ticket. Bopp was then instructed to write an "add- on" ticket showing the sale of the table to the customer. Copies of both sales tickets reflecting this transaction were introduced into evidence. Bopp further testified that on March 19, Bud Berger inquired as to why a table had not been listed on the original ticket. When Bopp explained that the error had been corrected by the "add-on" ticket, Berger instructed him to list the prices of all of the items involved in the sale by getting them from the furniture catalogues. Bopp stated that 10 Huebner had studied interior design and was 10 credit hours short of receiving a degree in this field BERGER FURNITURE COMPANY later that day he was told by Berger that the prices he had listed were wrong and that he should look them up again. When Bopp did this, Berger accused him of looking at the wrong catalogue numbers for the lamps and guessing at the prices. The second incident contained in this reprimand related to a dining room table sold by Bopp on March 6. The reprimand stated that the table which, was sold for $210, was not tagged and that Bopp guessed at the price. Bopp acknowledged that there was no price tag on the table and that he looked in a catalogue which showed two similar ta- bles. However, one was larger and one was smaller than the table that the customer desired. Bopp testified that he advised the customer that he was not certain of the exact price but that he would find out for them. He stated that he saw Robert Berger and explained his problem. Berger agreed to look up the price in the catalogue but instructed the em- ployee to close the sale in the meantime. Bopp then informed the customer that the table would be around $210, although he was not certain. He told the customer that the estimate would only be $5 or $10 off either way and that Berger was looking up the exact price in the catalogue. It subsequently developed that the correct price was the figure quoted by Bopp. Berger denied meeting Bopp or the customer and stated that he was in his office when Bopp called and inquired about the price of the table. Berger stated that he gave Bopp the catalogue number and told him to look it up. Ac- cording to Berger , after Bopp completed the sale, he asked him where he had gotten the price of the table and Bopp said that it was a guess . Berger testified that he then reprimanded Bopp for failure to use the catalogue. Although this incident oc- curred on March 6, the written reprimand was not issued until March 20 and was not given to Bopp until March 22. Berger stated that he was busy with other matters and did not get around to the in- cident until the latter date. The third reprimand related to two occasions when Bopp reported late for work. The Respondent claimed that on February 27, Bopp reported to work 45 minutes late and that he was also verbally reprimanded for reporting late on March 14. Bopp testified that although he had been late on occasion prior to the election, he had never been repri- manded. The fourth reprimand given to Bopp alleged that he did not know the correct procedure to follow in writing a return sales ticket. According to the Respondent, Sambo asked Bopp to write up a return ticket for a customer on March 14, and he did not know how to do this. Bopp testified that one of Sambo's customers returned some merchan- dise on that date and Sambo was busy. He in- structed Bopp to write up a return slip for him. Bopp stated he did not know how and Sambo gave " Only the managers and the Bergers had authority to approve return sales and the issuance of credits 421 him detailed instructions. When he completed the slip he asked Bud Berger to approve it.'t Berger questioned Bopp about the way the slip was written and was told that he was following Sambo's instruc- tions. Berger then spoke to Sambo who denied showing Bopp how to make out the slip. According to Bopp, Berger then accused him of "going off halfcocked" and writing the slip incorrectly. The final reprimand related to Bopp's lack of knowledge of the drapery department. The repri- mand alleged that on March 15 Bopp asked for assistance with a drapery customer because he did not know the procedures regarding the sale of drapes. Bopp is alleged to have gotten another salesperson to handle the customer; even though the Respondent held a sales meeting that morning with the employees and asked if they had any questions concerning the procedures to follow in any department. Bopp admitted attending the sales meeting, but stated that drapery sales were not discussed. He also admitted that he did not ask any questions at the meeting regarding the sale of drapes. He further stated that the drapery customer approached him as he was going to the rear of the store to look up some prices for a customer he was serving. Bopp testified that he informed the drapery customer that he was busy at the time, and that he would get someone to help her. The customer in- dicated she was only pricing the merchandise and Bopp asked Bud Berger to assist the customer. Berger instructed Bopp to handle the customer, even though Bopp admitted that he had very little knowledge of the drapery department and that he had a sale pending. Bopp then asked Scott to assist the customer with the drapes and Berger sub- sequently saw her in the process of doing this. Berger then asked Bopp why he was unfamiliar with the drapery department and Bopp replied that he had missed the drapery sales meeting because he was busy with a customer. According to Bopp, Berger then informed him that knowledge of the drapery department was a part of his job. 2. The layoff of March 24 On March 24, Kelly and the Respondent's representatives met for the first time to engage in collective bargaining. Robert Berger announced the Respondent was considering laying off all of the sales employees because business conditions were very poor. Kelly took the position that the layoff was unwarranted and that the Respondent was using this as an excuse to retaliate against the em- ployees for voting in favor of union representation. The union official promised to take whatever mea- sures necessary to protect the employees if the Respondent put its plans into effect. 427-835 O - 74 - 28 422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Berger also voiced complaints about the sales performance of the employees at this meeting,12 and Kelly suggested that they initiate a system of written reprimands to let the employees know the areas where improvement was needed. He also sug- gested that the company rules and procedures be typed out and made available to the employees. The Respondent considered the suggestions meri- torious and implemented them. The evening of March 24, all of the sales em- ployees were laid off pursuant to the orders of Robert Berger. But Berger made the announcement in the presence of Robert Berger to the Gravois store employees at closing time. 3 According to the employees, Berger told them that they were being laid off because business was slow. He stated that under the union regulations the Respondent could lay them off for this reason. Several of the em- ployees protested that they had recently had a number of large sales. Berger, however, stated that sales generally were down, and they would be re- called when business improved. Bud Berger testified that when he informed the employees of the layoff he never mentioned the Union or that the Respondent was following union procedures. Warren Berger handled the layoff at the Manchester store. Huebner testified that Berger stated the layoff was due to the decline in business and that under the union rules the employees could not be laid off in terms of seniority; consequently, both employees had to be laid off. Both Ryan and Berger denied that the Union was mentioned in any manner during the conversation. They testified that Berger went to great lengths to explain that the em- ployees were being laid off and not terminated.14 The Union contacted the Respondent after the layoffs and threatened to strike if the employees were not recalled immediately. As a result of negotiations between the Union and the Respon- dent it was decided that four employees would be recalled the following Monday. It was further de- cided that Bopp, the employee with the least seniority, would be recalled as soon as business im- proved. During the negotiations the Respondent complained that the employees were not selling enough furniture to earn commissions equal to their weekly draw.ts Kelly suggested that the Respondent establish a minimum weekly sales quota sufficient to cover the draw, and hold each employee respon- sible for meeting this goal. He further suggested that if an employee failed to meet the quota for a period of 3 consecutive weeks, the Respondent 'x There is some question as to whether this subject was discussed at this meeting or at a subsequent meeting Robert Berger testified that the sub- ject was mentioned before the layoff of March 24, but was uncertain of the date Kelly, testifying as Respondent's witness in this regard, indicates that the topic was discussed several days later In any event, it is clear that there was no discussion between the Respondent and the union representative until March 24 'a Bopp testified that Robert Berger announced the layoff to the em- ployees, but the testimony of Scott and the two Bergers indicate that Bud Berger spoke to the employees All of the employees, however, were in would be in a position to discharge that employee because of inability to perform the job. Since only four employees were to be recalled immediately, the Respondent and the Union also agreed that the employees would have different working hours to provide sales coverage on the floor at both stores. Previously, each employee received a day off during the week and some of the employees only worked in the evenings.16 Under the new arrangement the employees were required to work full time on split shifts during the week and all day on Saturday. Kelly told the employees of the changes in working conditions that weekend, and he instructed them to report to work on March 31. Each employee was notified in writing, upon returning, that the weekly sales quota was $2,000. 3. The decision not to recall Bopp On April 3, the Respondent decided not to recall Bopp under any circumstances. Neither Bopp nor the Union, however, was notified of this decision. Robert Berger testified that Bopp made a substan- tial sale ($2223.87) on March 1, and the first week in April the customer called and said he changed his mind and asked for a refund of his $200 down payment. Berger stated that he was going to deny the request until the customer informed him that Bopp had granted him this option at the time the transaction was made. The customer produced his copy of the sales ticket which carried a handwritten notation at the bottom, "Refund $200.00 if customer has change of mind." This notation was not on the office copies of the sales ticket. Berger stated that he felt obligated to honor the commit- ment and allowed the customer to cancel the order. Berger further stated that Bopp had no authority to make this kind of arrangement without prior ap- proval. Because he considered this to be an inex- cusable violation of the Company's rules, Berger decided not to reemploy Bopp. Bopp, on the other hand, testified that Berger was informed about the entire transaction and gave him specific instructions on how to handle the sale. He stated that the customer was anxious to make the purchase, but balked over the question of a down payment. The customer claimed that he had been in an accident and expected to pay for the fur- niture out of anticipated recovery from insurance proceeds. Since he was not certain when the money would be available, the customer hesitated to make a down payment. According to Bopp, he explained agreement on the substance of the conversation " Berger stated that he made the distinction because he had recently been involved in negotiations with the Teamsters concerning the Respon- dent 's warehouse employees 15 The employees received a weekly draw of $100 Since they earned a 5-percent commission on most sales, it was necessary for them to sell $2,000 worth of furniture a week to equal the draw "According to the testimony , evening hours, Fridays, and Saturdays were considered the prime selling time BERGER FURNITURE COMPANY 423 the problem to Robert Berger, who insisted that a small amount be paid. Bopp stated that he then per- suaded the customer to put $200 down, with the express understanding that it could be refunded if the customer failed to receive the proceeds from the accident. Bopp testified that Berger agreed to this arrangement because the particular group selected by the customer was a popular item and the Respondent's stock had been depleted. Bopp stated that Berger instructed him to put the refund notation only on the customer's copy of the sales slip. 4. The incidents after the layoff After the employees returned on March 3 1, there were a series of incidents involving each of them and the Respondent's officials. Huebner lodged a complaint with the union representative regarding credit for a sale she felt she was entitled to receive, but which had been given to Ryan." According to Huebner, she had spent several hours assisting a customer in making a selection, but the customer did not make the purchase at that time. The same customer subsequently returned when Huebner was out of the store, and Ryan completed the sale. He received credit for the sale and Huebner com- plained. When Kelly came to the store to handle the grievance, Berger told him that Huebner re- peatedly demonstrated a lack of ability to close a sale. He also stated that Huebner was not aggres- sive enough in handling customers. Kelly relayed these comments to Huebner and offered to sit down with her and Berger to settle their differences. Huebner felt that she could not push items on customers when they did not want or need them. She also declined his offer to discuss her problems with Berger because she felt that Berger was con- stantly abusing and picking on her. On April 11, Huebner received two written repri- mands. The first involved an order for two chairs written by Huebner in August or September 1968. She failed to specify the type of finish required for the chairs. The merchandise was delivered shortly before April 11, and the finish was not the type requested by the customer. The Respondent had to add the chairs to its stock and reorder chairs for the customer with the correct finish Robert Berger called Huebner on the telephone about the order, and she admitted her error. This conversation was later set forth in the form of a written reprimand. Huebner received a second call from Berger that day regarding her failure to meet the sales quota. According to Huebner, Berger asked "if it was the best she could do " When she attempted to offer an explanation, Berger cut her off and insisted upon an answer to his question. Huebner then replied "yes " This exchange became the basis of the second reprimand. During the third week in April an article ap- peared in a publication printed by the Union. The article accused the Respondent of mistreating its employees because they voted in favor of the Union Robert Berger questioned Huebner in an ef- fort to determine if she were responsible for the ar- ticle. Later that day warren Berger heatedly told Huebner the article was "unnecessary," and that the Union was attempting to tell the Respondent how to run its business. Shortly thereafter, Berger returned and apologized to Huebner for getting up- set. He asked her who was responsible for bringing the Union into the store in the first instance, and sought to find out if Bopp was involved with the or- ganizational effort. Huebner disclaimed any knowledge of Bopp's connection with the Union. Berger then asked what the employees hoped to gain , and Huebner replied that they would equalize the pay and benefits. According to Huebner, Berger stated that the employees had "equalized them- selves into clerks." On April 19, Raymond Berger told Huebner she was being discharged because business was slow and she had failed to meet her sales quotas during the 3-week period. Although Huebner protested that her sales were picking up and that she had a large sale that day, she was discharged by the Respondent.18 Employee Scott testified that after her return Sambo told her that he had been instructed by the Bergers to spend more time selling on the floor. Sambo stated that the Bergers wanted him to sell more in order to make it difficult for the employees to meet their sales quota. He promised to help Scott all that he could, but cautioned that there would be times when all the Bergers were in the store and he would not be able to assist her. Scott also testified that she was subjected to ver- bal abuse from Bud Berger . She stated that on one occasion, in the presence of Sambo, Berger said he did not trust her and that he wanted her to keep busy at all times in the store. According to Scott, Berger stated he would not say what he thought of her, "not because she was a lady but because he was a gentleman ." Shortly after Scott resumed work, Berger reprimanded her about the manner in which she made out a refund slip. Scott stated that each time she presented the slip to Berger for ap- proval, he told her it was incorrect and to rewrite it. After she had rewritten the slip a number of times and had it rejected, Berger forced her to admit that she did not know how to properly fill out the form. Scott quit the Respondent's employment during the second week in April. Bremel testified that after she returned from the layoff, she found that the new hours worked a hard- 'T The Respondent followed a policy of giving credit tor a sale to the em- ployee who actually quoted the prices to a customer This rule applied even though the actual sale was completed at a subsequent date by another salesperson Is Huebner had completed a sale amounting to $3,788 15 that after- noon Her sales totaled $36 95 for the first week after the layoff, and $880 91 for the second week ( excluding the sale for which Ryan received credit) 424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ship upon her and her family.19 Due to the split- shift requirements, Bremel 's husband, who was at- tending graduate school, had to care for their child in the morning and deliver the child to a babysitter in the afternoon. This had an adverse effect on his studies and his attendance at school Bremel spoke to Bud Berger about her problem sometime in May, but was told that the hours could not be changed. Approximately a week after the employees were recalled, Bud Berger showed Bremel a copy of the new book of rules and procedures compiled by the Respondent.20 Bremel testified that Berger told her to read the rules and that she was responsible for knowing them. According to Bremel, Berger stated that the employees "bought themselves a set of rules" and that he would not tell her what he thought of them, "not because she was a lady but because he was a gentleman." On May 29, Bremel received a written reprimand accusing her of "usurping authority." The repri- mand charged that on May 27 Bremel answered a telephone inquiry from a person seeking employ- ment as a decorator, and informed the caller that the Respondent did not need any additional help. It was alleged that this was the second time that Bremel had "overstepped" her authority, and that she would be discharged if it occurred again. Bremel denied that the incident happened as set forth in the reprimand . Bremel stated that when the caller asked about opportunities for decorators with the Respondent, she volunteered that she also had a degree in interior design but the Berger brothers were the decorators for the store. She advised the caller to remain on the line, however, and called Bud Berger to the telephone. After Berger spoke with the person, he accused Bremel of not wanting competition and overstepping her authority.21 The first week in June, Bremel consulted with her doctor. She was advised that her job-related tensions were affecting her physical well being. The doctor recommended that she quit her job. Bremel testified that she did not disclose this to anyone at the Respondent's store. On June 9, Bremel was called into the office by Bud Berger. According to Bremel, Berger stated that the Respondent was laying her off because business was slow. Bremel testified that she then told Berger she was going to quit in any event because she had been so advised by her doctor. Bremel returned to the store to pick up her check on June 11. Before releasing the check, Berger had her sign a typed statement indicating that she had resigned on June 9 and had received full payment of her salary. 19 Prior to the layoff, Bremel worked from 4 30 p m to 9 30 p in during the weekdays , and from 9 a m to 9 p m on Saturdays Her new hours were from 9am to 12 noon and 6pm to 9 p in on Mondays , Wednesdays, and Fridays, 12 noon to 6 p m on Tuesdays and Thursdays, and 9 a in to 9 p m on Saturdays 20 Although the Bergers testified that a loose leaf set of rules and procedures had always been posted on the bulletin board in the store, none of the employees ever recalled seeing it or having their attention directed Berger denied that Bremel was laid off. He testified that she came into the office and told him that she was quitting on the advice of her doctor. Berger also stated that business was good at the time and the Respondent did not intend to lay her off. D. The Status of Carl Sambo As previously noted, Sambo was the sales manager of the Gravois store. Bopp, Bremel, and Scott testified that when they were hired, the Bergers informed them that Sambo was the manager and could help them with any problems. The employees further testified that they had to get approval from Sambo or one of the Bergers to ex- tend short term credit to a customer without a down payment or with a small amount down. They also had to clear sales credits for return merchan- dise with Sambo or the Bergers. Although there is no indication that Sambo hired or discharged em- ployees, Scott testified that when she applied for a job with the Respondent, she was interviewed ini- tially by Sambo and then taken to Bud Berger who made the actual decision to hire her. The em- ployees were also instructed to call and notify Sambo when they were going to be delayed or late reporting to work. While he also sold furniture, Sambo had an office in the store and he was responsible for shipping and ordering furniture for the store. When the Bergers were out of the store, Sambo was in charge of the entire operation. He also attended the meeting Robert Berger held with the managerial officials during the union campaign, and was instructed to stay clear of any matters concerning the Respon- dent's position regarding the Union. Neither Sambo nor Ryan were included on the list of eligible voters supplied by the Respondent for the repesentation election. Concluding Findings Although the issues in these -cases are not com- plex, the differences in the testimony regarding each incident alleged are so great that a detailed exposition of the testimony and the evidence was deemed necessary. The basic issue is whether the Respondent promised the employees benefits in order to induce them to vote against representation by the Union, and having failed in that regard, whether the Respondent sought to retaliate against the employees by means of harassment, layoffs, and ultimately by discharge. to It 21 The second incident referred to in the reprimand related to another applicant for employment The Respondent alleged that the applicant was in the store and overheard Bremel and Scott speak disparagingly about the Bergers According to Bud Berger, the applicant stated he did not want to work around a "bunch of fighting women " Bremel denied any knowledge of the incident BERGER FURNITURE COMPANY 425 1. Determination of Sambo's status As a great portion of the employee testimony re- lates to conversations or incidents involving Sambo, determination of his status is essential to the resolu- tion of the ultimate facts in this case. The only un- controverted fact concerning Sambo's relationship to the Respondent is that he occupied the position of sales manager of the Gravois store. Although the title "manager" is not controlling, it is nevertheless a factor which must be weighed in conjunction with his duties to determine whether Sambo was in fact a supervisor within the meaning of the Act. It is clear that the Respondent's officials held S'ambo out to be more than an ordinary sales employee. He was introduced to the other employees as their manager when they were hired, and they were in- structed to take their problems to him. While there is no evidence that Sambo hired any employees, Scott testified that Sambo examined her application and interviewed her before sending her to Bud Berger, who made the final decision. All of the em- ployees were required to get approval from Sambo or one of the Bergers before extending credit terms to customers and before issuing sales credits for returned merchandise. It is also clear that the em- ployees, themselves, considered Sambo to be one of their supervisors. They took orders from him and reported to him when they were going to be late for work. Although Sambo sold furniture, this was also true of the Respondent's other management offi- cials . His duties included responsibility for shipping and ordering furniture, and he had an office in the store. When the Bergers were away from the Store, Sambo was in complete charge. The Respondent's contention that Sambo was merely a senior employee and that he sought to in- flate his status by asserting authority which he did not possess is not persuasive and is not supported by the record. The evidence indicates that the Respondent not only held Sambo out to others as a supervisor, but also considered him a part of the management structure. Thus, he attended the meet- ing of the management officials shortly after the Union filed the representation petition, and received instructions on how to deal with employee questions regarding the Union Moreover, Sambo's name was not included on the list of eligible voters supplied by the Respondent. Considering all of the above factors, I find that Sambo was a supervisor at the Gravois store. I further find that he responsibly directed the sales employees in the performance of their duties and that he exercised independent judgment in carrying out his responsibilities. Moreover, he held a posi- tion identical to that of Ryan, an admitted super- visor at the Manchester store. In these circum- stances I find and conclude that Sambo was a su- pervisor within the meaning of Section 2(1 1) of the Act. Henry Colder Company, 163 NLRB 105. See also Wells Fargo Bank, 179 NLRB 465; Supermar- ket of Dunbar Inc., 178 NLRB 206. 2. Berger's preelection statement The complaint alleges that on two occasions Robert Berger told assembled groups of employees at the Gravois store that "things could be worked out" in the event they did not vote in favor of union representation. Although the evidence must be ex- amined in its totality, this particular allegation lends itself to separate consideration. The General Coun- sel contends that Berger's statement contained an implicit promise which intruded upon the right of the employees to make a decision at the election without interference. While the evidence is con- flicting, it is clear that Berger made the statements on two occasions; once at the Gravois store and once at the Manchester store. Each time it was in response to a question by an employee concerning whether they could work out their differences in the event the Union were defeated in the election. Bremel and Scott testified that Berger replied that he was not at liberty to comment on this, but "it might be possible." Huebner, who asked the question at the Manchester store, testified that Berger said he was not at liberty to comment on what the situation would be if the Union were not voted in. Bopp's testimony indicated that Berger responded by saying he was not allowed to say either way, "but things could be worked out." Viewing the testimony in the light most favorable to the General Counsel, I am of the opinion that Berger's comment on these occasions contained nothing which suggested, inferentially or otherwise, that the Respondent would grant benefits to the employees if they voted against the Union in the election. His response was very limited and couched in very guarded language. Even on the basis of Bopp's testimony-the strongest in support of the allegations-Berger made it clear that he was not free to discuss the matter with the employees and that he did not intend to do so. To hold that the phrase "things could be worked out" contained an implied promise to treat the employees more favorably if they voted against the Union reads far too much into the expression, and totally ignores the context in which it was made. In these circum- stances, therefore, I find that Berger's statements in response to the employees' questions were nothing more than permissible expressions of views allowed by Section 8(c) of the Act and did not constitute a violation of Section 8(a)(1) of the Act, as charged. Accordingly, I shall recommend that this aspect of the complaint be dismissed in its entirety. 3. Sambo's statements to the employees It is clear from the testimony that the Gravois store employees had a friendly relationship with Sambo and frequently engaged in discussions with him concerning the Union. The testimony indicates that prior to the election Sambo encouraged the employees to join the Union in order to improve their working conditions; following the election he 426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD warned the employees of the Respondent 's hostile reaction to the union victory . On one occasion Sambo assembled the employees at the rear of the store and told them that all of their jobs, including his own , were in jeopardy because the Bergers in- tended to find fault with their performance and discharge them . Sambo also stated that the recep- tionist was spying on the employees and reporting to the Bergers . In a conversation with Scott, Sambo said that he was instructed by the Bergers to spend more time selling furniture in order to make it more difficult for the employees to reach their newly im- posed sales quota. There is testimony that Sambo cautioned the employees to be extremely careful and to arrive at work on time because the Bergers were seeking means to get rid of them. The Respondent argues vigorously that the testimony of the employees regarding their conver- sations with Sambo was contrived and not worthy of belief. In support of this contention the Respon- dent points to the fact that Bremel testified that Sambo was talking about the Respondent 's reaction to the union victory when he stated their jobs were in jeopardy , but stated in her affidavit that Sambo did not refer to the Union . The Respondent also notes that the employees were not in agreement as to when the conversation took place in the rear of the store ; Bopp testified that it happened prior to the election , Bremel testified that it occurred on March 24, and Scott was unable to fix the date, but thought that it occurred after the election . The fact that the employees differed as to the time of the conversation and the fact that Bremel 's testimony differed from her affidavit is not sufficient, in the circumstances of this case , to cause me to discredit their testimony . Each of these witnesses impressed me as being straightforward and candid , even when their testimony conflicted with that of other em- ployee witnesses . Though they differed on the date, the witnesses were in agreement on the substance of the conversation with Sambo . Furthermore, the statements attributed to Sambo were accurate forecasts of the course of conduct followed by the Respondent after the election. I find, therefore , that Sambo did warn the em- ployees on several occasions that their jobs were in jeopardy and that the Bergers were going to at- tempt to get rid of them because they voted in favor of the Union . I further find that these state- ments had a coercive impact upon the employees because they were made at a time when the em- ployees had experienced actual manifestations of the Respondent's anger toward them because of the election results . Bopp had received five reprimands at one time, covering his conduct over a period of 2 months ; the employees were assigned specific sec- tions in which to work ; further , the employees were instructed to keep busy at all times and not to en- gage in conversations with each other on the sales floor . The sudden imposition of new work rules and the issuance of the written reprimands served notice upon the employees that the Respondent in- tended to retaliate against them for selecting the Union as their bargaining representative. When Sambo 's statements were considered in the context of the repressive and retaliatory environment created by the Respondent , one need not search far to conclude that the statements were coercive with respect to the employees. Accordingly , I find that when Sambo advised the employees that the receptionist was spying on them and reporting back to the Bergers , an impression was created that the Respondent was engaging in surveillance of their activities on behalf of the Union in violation of Section 8(a)(1) of the Act. Similarly , when Sambo told the employees their jobs, and his as well, were in jeopardy because the Respondent was seeking means to discharge them, a further violation of Section 8(a)(l 1 was com- mitted. Since Sambo was a supervisor, the Respon- dent must be held responsible for his unlawful con- duct, even though the supervisors had been in- structed not to discuss matters relating to the Union with the employees. Webb Tractor and Equipment Company, 167 NLRB 383; Pascoe Steel Corp., 163 NLRB 572; Bush Hog, Inc ., 161 NLRB 1575. 1 find, therefore , that by Sambo's statements to the em- ployees, the Respondent violated Section 8(a)(1) of the Act as described above. 4. The mass layoff The March 24 layoff of all of the sales employees was, in my judgment , a further demonstration of the measures the Respondent employed to retaliate against the employees for voting in favor of the Union . Although the Respondent introduced evidence to establish that the layoff was the result of legitimate decline in business , this evidence does not outweigh other factors in the record which cause me to conclude that the layoff was unlawfully motivated . Less than 2 weeks before the layoff Sambo told the employees that the Respondent was "upset" over the outcome of the election and "would not take it lying down." After the election more stringent working rules were imposed and a series of reprimands were given to Bopp 2 days be- fore the layoff. Equally signigicant is the fact that the layoff occurred less than 2 weeks after the elec- tion, and represented a departue from the past practice of retaining employees when business was slow. All of these factors far outweigh the Respon- dent's asserted economic defense , and compel the conclusion that the defense was merely a pretext in- tended to justify an unlawful attempt to retailiate against the employees because they voted in favor of union representation. There is a conflict in the testimony concerning what was said to the employees at the time of the layoff, the employee witnesses stating that the Respondent's officials claimed they were acting in accordance with union rules and the Respondent's BERGER FURNITURE COMPANY witnesses denying any mention of the Union. I do not, however, deem it necessary to resolve this con- flict . It is clear from all versions that the employees were told they were being laid off because of a decline in business . Since I have already found that the layoff was discriminatorily motivated , it would add nothing to this decision to find that the state- ments made at the time of the layoff constituted a further violation of the Act. Accordingly , I find that the Respondent violated Section 8(a)(3) and (1) when it laid off all of the sales employees approxi- mately 2 weeks after the election . National Business Forms, 176 NLRB 859; Rea Trucking Company, Inc., 176 NLRB 518. 5. The various discharges I find that the Respondent 's subsequent decision not to recall Bopp (made on April 3), was motivated by the same discriminatory reasons that inspired the mass layoff of the employees on March 24. The evidence fully supports the conclusion that Bopp was singled out by the Respondent as one of the leading adherents for the Union . Sambo in- formed Scott the evening of the election that the Respondent's officials considered Bopp an "observ- er" for the Union , because he had accompanied Huebner and Kelly to the polling places during the election . Bopp received five written reprimands on March 22, covering incidents alleged to have oc- curred during the prior 2 months . It is significant to note , regarding the reprimands , that they were is- sued to Bopp before the union organizer had sug- gested that the Respondent adopt a policy of writ- ing out the complaints against employees in order to facilitate handling of the grievances. Even after the decision not to recall Bopp , Warren Berger at- tempted to find out from Huebner what connection Bopp had with the Union , thus indicating that the Respondent's officials considered him to have played a role in organizing the employees. It is also apparent that Bopp was thought to be a satisfactory employee until he became identified with the Union 's organizational effort . Bud Berger testified that Bopp constantly made mistakes in filling out sales tickets , and the Respondent introduced copies of them, dating back to December 1968, to support this contention. Berger admitted , however, that other employees made similar errors on their sales tickets. In my judgment the Respondent "doth protest too much " by its heavy -handed use of these documents in an effect to establish that Bopp was an undesirable employee ; especially when the er- rors were not considered significant when com- mitted and only gained importance after Bopp en- gaged in activity on behalf of the Union. Nor do I credit Robert Berger 's testimony that the cancellation of the order and the refund of the down payment to the customer was the event which 427 triggered the decision not to recall Bopp . Consider- ing that the sales personnel operated under very close supervision and were required to get approval from the Bergers or the sales manager for every transaction other than cash sale, I find it highly im- probable that Bopp would have granted the customer such unique terms without first securing approval . I find , therefore , that Berger was aware of the terms of sale and of the possibility that the down payment would have to be refunded if the order were canceled . I further find that the decision not to recall Bopp was motivated by a desire to get rid of an employee thought to be a leading activist on behalf of the Union , and not by any alleged defi- ciencies in his performance as a salesman . In these circumstances , I find that the Respondent violated Section 8 ( a)(3) of the Act. Huebner's discharge on April 19 presents a more serious problem . The record clearly shows that the Respondent 's officials felt betrayed and harbored a deep-seated resentment toward the employees because they voted in favor of union representa- tion . It is also clear that Huebner was an obvious target for expressions of this resentment . She was the employee observer for the Union during the election , and was considered to be the union steward on the job because of her seniority as an employee . Expressions of hostility and retaliation were made to Huebner on several occasions by her supervisors . Ryan made the observation to Huebner and Corea shortly after the election that the "em- ployees were in a mess " ( because of the Union), and he reminded them that in the past no one had been laid off when business was slow , but their jobs were now in jeopardy because of the increased costs the Respondent would incur with the Union. When an article appeared in the union journal in April alleging that the Respondent was mistreating its employees because they voted for the Union, both Robert and Warren Berger questioned Huebner to determine if she were responsible for its publication . Warren Berger also sought to find out from Huebner what the employees hoped to gain from representation by the Union . When told that the employees' pay and benefits would become equalized , Berger stated that the employees had "equalized themselves into clerks."22 Although Huebner had been employed by the Respondent since September 1967, and had received an in- crease in wages and benefits in order to presuade her to remain with the Respondent , after the elec- tion her sales technique was the subject of constant criticism by the Respondent 's officials. Normally these factors, in conjunction with the unlawful layoff, would be sufficient to warrant the conclusion that Huebner's ultimate discharge was also unlawful . But there is an additional factor in- volved in her discharge which can not be ignored. After the Union negotiated for the return of the 22 Both Ryan and Warren Berger denied engaging in discussions about the Union with Huebner , but I do not credit them in this regard 428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees from the unlawful layoff, the union representative suggested that the Respondent establish a minimum sales quota for the employees and the Respondent accepted this proposal. Even though the parties had not negotiated a formal writ- ten contract, the sales quota became a term of em- ployment negotiated by the bargaining representa- tive and the Respondent. It is evident from the record that Huebner failed to meet the required sales quota for 3 consecutive weeks and was vul- nerable to discharge for this reason.23 In such cir- cumstances the Board has held that "if an em- ployee provides an employer with a sufficient cause for his dismissal by engaging in conduct for which he would have been terminated in any event, and the employer discharges him for that reason, the circumstance that the employer welcomed the op- portunity to discharge does not make it discrimina- tory and therefore unlawful." (Emphasis supplied.) Klate Holt Co., 161 NLRB 1606, 1612; Winn-Dixie Stores, Inc., 153 NLRB 273, 288. It is obvious from this record that the Respondent was seeking ways to get rid of the employees because they exercised their statutory right to select a collective-bargaining representative. But it is equally clear that Huebner failed to meet the sales quota negotiated between the Respondent and the Union, thereby providing the Respondent with sufficient cause to terminate her. In these circumstances, I reluctantly conclude that Huebner was discharged because she failed to meet the sales quota within the prescribed period of time, even though the surrounding circumstances clearly show that the employer welcomed this op- portunity to rid itself of a leading union adherent .24 The circumstances surrounding the termination of Bremel's employment on June 9 lead me to con- clude that she was unlawfully discharged by the Respondent. As in the case of the other sales em- ployees, she had been subjected to the reprisals by the Respondent's officials after the election. Ap- proximately a week after she returned from the dis- criminatory layoff in March, Bud Berger showed her a booklet compiled by the Respondent setting forth all of the rules and procedures which the em- ployees were to follow. Bremel credibly testified that Berger stated she was required to know the contents and that the employees "bought them- selves a set of rules." Berger's remarks clearly im- plied that the rules were established because the employees had voted in favor of union representa- tion. On May 29, Bremel received a written repri- mand accusing her of overstepping her authority in that she was alleged to have discouraged an appli- cant for employment from seeking a job at the store. I credit Bremel's denial that the incident oc- curred as alleged by the Respondent, and I find that 23 The General Counsel argues that the Respondent prevented Huebner from meeting her quota by crediting some of her sales to Ryan, but a review of the evidence indicates that this argument is speculative at best z' The General Counsel also argues that the Respondent shifted its defen- ses by first alleging that Huebner was laid off because of a decline in busi- the reprimand was simply a continuation of the Respondent's unlawful efforts to retaliate against the employees for voting in favor of the Union. After the employees returned from the layoff, Bremel's hours were rescheduled along with the other employees in order to provide coverage on the floor. The new schedule created a hardship for Bremel because her husband was in school and she had a babysitter problem. She asked to have her hours changed but was informed that this could not be done. Due to the tension created by her working conditions and her personal problems, Bremel went to a doctor during the first week in June . She was advised to quit her job because the tension was af- fecting her physical well-being. I credit Bremel's testimony that she spoke to no one at the store con- cerning her doctor's recommendation. The Respon- dent contends that Bremel resigned from her job on June 9. Bud Berger testified that Bremel came into his office on that date and announced that she was resigning on advice of her physician. He also testified that business was generally good and the Respondent had no intention of laying Bremel off. When Bremel returned several days later to pick up her final paycheck, she was requested to sign a statement indicating that she had resigned. I do not credit Berger's testimony concerning the circum- stances surrounding the termination of Bremel's employment. My determination in this regard rests not only upon my observation of the witnesses while testifying, but also upon the fact that Berger's statement is in conflict with other evidence in the record. The Respondent put into evidence a sales performance chart showing the monthly sales for each store. Examination of this document reveals that the sales at the Gravois store during May and June 1969 were far less than the sales for the preceding March-the month in which the Respon- dent claimed that sales were so low that it was necessary to lay off all of the employees. Thus Berger's statement that business was good is not substantiated by the Respondent's own records. The fact that he felt compelled to testify otherwise gives credence to Bremel's version of the incident. I find, therefore, that Bremel was told that she was being laid off because business was poor and when she volunteered that she was going to quit anyway, Berger seized upon this as a device to convert the layoff into a resignation . I further find that the layoff was discriminatorily motivated . Bremel was the sole survivor of the group of employees who were subjected to the Respondent's unlawful reprisals because they voted in favor of representa- tion by the Union. She had received a written repri- mand the week before her termination wrongfully accusing her of usurping authority. She was also ness and later asserting that she was terminated because of a failure to meet the sales quota There is no merit to this argument By Huebner's own testimony she was told that business was slow and that she had failed to meet her sales quota Thus, it is evident that both grounds were asserted by the Respondent at the time of her termination BERGER FURNITURE COMPANY 429 subjected to remarks by the Bergers which made it clear that the employees were going to pay a dear price for unionization . In these circumstances, I find that Bremel 's layoff on June 9 by the Respon- dent was in violation of Section 8(a)(3) and (1) of the Act. CONCLUSIONS OF LAW 1. Berger Furniture Company is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Retail Store Employees' Union, Local No. 655, affiliated with Retail Clerks International As- sociation, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent by the statements of its su- pervisor and agent, Carl Sambo , created an impres- sion of keeping the employees' activities on behalf of the Union under surveillance in violation of Sec- tion 8(a)(1) of the Act. 4. The Respondent by the statements of its su- pervisor and agent, Carl Sambo, violated Section 8(a)( 1) of the Act by telling employees that their jobs were in jeopardy and by informing employees that the Respondent's officials would attempt to find fault with their work in order to discharge them because they voted in favor of union representation. 5. The Respondent violated Section 8(a)(3) and (1) of the Act by unlawfully laying off all of the sales 'employees at its Gravois and Manchester stores on March 24, 1969, for the reason that they voted in favor of representation by the Union, thereby discriminating against the employees in order to discourage membership in and activities on behalf of the Union. 6. The Respondent violated Section 8(a)(3) and (1) of the Act by its decision, made on April 3, 1969, not to recall employee Paul Bopp for the reason that he had engaged in activities on behalf of the Union. 7. The Respondent did not violate Section 8(a)(3) and (1) of the Act by discharging em- ployee Vickie Huebner on April 19, 1969. 8. The Respondent violated Section 8(a)(3) and (1) of the Act by laying off employee Catherine Bremel on June 9, 1969, for the reason that she had voted in favor of representation by the Union. THE REMEDY Having found that the Respondent has engaged in and is engaging in unfair labor practices, I shall recommend the issuance of an order that it cease and desist therefrom and that it take certain affir- mative action to effectuate the policies of the Act. As I have found that the Respondent unlawfully laid off employee Paul Bopp on March 24, 1969, and subsequently unlawfully refused to recall this employee because he voted in favor of union representation and engaged in other protected, concerted activities on behalf of the Union, and as I have found that the Respondent unlawfully laid off employee Catherine Bremel on June 9, 1969, because she voted in favor of union representation, I recommended that the Respondent offer these employees full and immediate reinstatement to their former or substantially equivalent position, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings they may have suffered by reason of the unlawful layoffs and discharge . In making these em- ployees whole, the Respondent shall pay them a sum of money equal to that which they would have earned as wages from the date of the unlawful layoffs and discharge to the date of the offer of reinstatement, less any net earnings received during said period . Backpay shall be computed on a quar- terly basis in a manner consistent with the Board policy described in F. W. Woolworth Company, 90 NLRB 289, with interest thereon at 6 percent per annum computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. Although I have found that the layoff of March 24, 1969, was discriminatorily motivated, the Respondent and the Union negotiated for the return of four of the employees on March 31, and Bopp was given a preferential recall status. While this does not vitiate the unfair labor practice com- mitted by the Respondent, it does, in my judgment, rule out the need for a remedy beyond notification that the Respondent will not engage in similar con- duct in the future. Accordingly, upon the foregoing findings of fact and conclusions of law, and upon the entire record in this case, pursuant to Section 10(c) of the Act, I make the following: RECOMMENDED ORDER Respondent, Berger Furniture Company, its of- ficers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Creating an impression that the employees' activities on behalf of the Union are being kept under surveillance. (b) Threatening to find fault with the employees' work performance in order to discharge the em- ployees because they voted in favor of union representation. (c) Telling employees that their jobs are in jeopardy because they engaged in activities on be- half of the Union and voted in favor of union representation. (d) Unlawfully laying off and unlawfully refusing to recall laid off employees because they were members of the Union and voted in favor of union representation. (e) In any other manner interfering with, restraining , or coercing employees in the exercise of their rights guaranteed by Section 7 of the Act, as amended. 430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Take the following affirmative action which I APPENDIX find will effectuate the policies of the Act: (a) Offer to the employees named below im- mediate and full reinstatement to their former jobs or, if these jobs no longer exist, to substantially equivalent positions without prejudice to their seniority or other rights and privileges previously enjoyed by them , and make them whole for any loss of earnings they may have suffered by reason of the discrimination against them in the section of this decision entitled "The Remedy." The employees entitled to immediate and full reinstatement are Paul Bopp and Catherine Bremel. (b) Preserve and, upon request, make available to the Board or its agents , for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Recommended Order. (c) Notify the above-named employees, if presently serving in the Armed Forces of the United States of their 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. (d) Post at its Gravois and Manchester stores, located in St. Louis County, Missouri, copies of the attached notice marked "Appendix."25 Copies of said notice, on forms provided by the Regional Director for Region 14, after being duly signed by the Respondent's official representative, shall be posted by it 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 by the Respondent to insure that said notices are not al- tered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 14, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.26 IT IS FURTHER RECOMMENDED that the allegations setting forth violations not specifically found herein be dismissed in their entirety., 2S In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and Recommended Order herein shall, as provided in Section 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 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the Na- tional Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 26 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 " NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government We hereby notify all our employees that: WE WILL NOT create an impression that we are engaging in surveillance of union activities by our employees. WE WILL NOT inform our employees that their jobs are in jeopardy because they voted in favor of union representation. WE WILL NOT threaten to find a means to discharge our employees because they voted in favor of union representation. WE WILL NOT layoff or discharge employees because they are members of the Union or because they voted in favor of union represen- tation. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed in Section 7 of the National Labor Relations Act, as amended. WE WILL offer to the employees named below immediate and full reinstatement to their former jobs or, if these jobs no longer ex- ist, to substantially equivalent positions, and we will make them whole for any loss of earnings they may have suffered because of our discrimination against them. Paul Bopp Catherine Bremel BERGER FURNITURE COMPANY (Employer) Dated By (Representative ) (Title) We will notify immediately the above-named in- dividuals, if presently serving in the Armed Forces of the United States, of the right to full reinstate- ment, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecu- tive days from the date of posting and must not be BERGER FURNITURE COMPANY 431 altered, defaced , or covered by any other material. Board's Office, 1040 Boatmen's Bank Building, 314 Any questions concerning this notice or com- North Broadway, St. Louis, Missouri 63102, pliance with its provisions may be directed to the Telephone 314-622-4167.