Welsman's Furniture and Appliances, Inc

670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Weisman's Furniture and Appliances, Inc. Myles Furniture and Appliances, Inc. Heidi Furniture and Appliances, Inc. Fair Furniture and Appliances, Inc. Buena Furniture and Appliances, Inc., and Local 888, Retail Clerks International Association, AFL-CIO. Case 2-CA-11939 January 4, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On August 20, 1970, Trial Examiner Paul E. Weil issued his Decision in the above-entitled case, finding that Respondent had engaged in and was engaging in certain unfair labor practices alleged in the complaint and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He further found that Respondent had not engaged in certain other unfair labor practices alleged in the complaint. Thereafter Respondent filed exceptions to the Deci- sion, and the General Counsel filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the National Labor Relations Board has delegated its powers in connec- tion 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 briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommend- ed Order of the Trial Examiner as modified herein and hereby orders that Respondent, Weisman's Furniture and Appliances, Inc., Myles Furniture and Appliances, Inc., Heidi Furniture and Appliances, Inc., Fair Furniture and Appliances, Inc., and Buena Furniture and Appliances, Inc., New York, New York, their officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as modified below. 1. Add the following as paragraph 2(b) to the Trial Examiner's Decision and reletter the subsequent paragraphs accordingly: "Notify immediately the above-named individuals if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. 2. In footnote 14 to the Trial Examiner's Decision, substitute "20" for "10" days. 3. Substitute the attached Appendix for that attached to the Trial Examiner's Decision. IT IS HEREBY FURTHER ORDERED that the complaint be dismissed insofar as it alleges violations of Section 8(a)(1) and (3) as to which the Trial Examiner recommended dismissal. I We correct these madvertencies in the Trial Examiner's Decision which do not affect the result herein. Henrietta Finkelstein's office at the time of the layoff was at the Myles (Peoples) store and not at the Weisman store. The account of Marvin Weisman's conversation with employee Luis Vargas should not be reported as a quotation from the record. It is a paraphrase of Weisman's threat to the employee There is no issue as to whether the Charging Union is a labor organization, as mentioned by the Trial Examiner in In. I In the related representation case, the Regional Director so found. Decision and Direction of Election, dated October 22, l%9, Case 2-RC-15212 (not published in bound volumes of Board decisions). And Respondent does not challenge the Union's status. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial in which all sides had a chance to give evidence the National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post this notice . The Act gives all employees these rights: 1. To engage in self-organization 2. To form, join, or help unions 3. To bargain collectively through repre- sentatives of their own choosing 4. To act together for collective bargaining or other mutual aid or protection 5. To refrain from any or all of these things. WE WILL NOT do anything that interferes with, restrains, or coerces employees with respect to these rights. WE WILL NOT coercively interrogate our em- ployees about their union activities , threaten them with discharge or threaten to close the stores because of their union activities , or offer them benefits to induce them to refrain from union activities. WE WILL NOT discourage membership in Local 888, Retail Clerks International Association, AFL-CIO, or any other labor organization, by discriminatorily discharging and refusing to reins- 187 NLRB No. 86 WEISMAN'S FURNITURE AND APPLIANCES 671 tate any of our employees , or by discriminating in any other manner in regard to their hire and tenure of employment or any term or condition of employment. WE WILL offer Juan Matta , Jr., Francisco Oliveras, Henrietta Finkelstein , and Linda Jack- son reinstatement to their former positions or, if those positions no longer exist , to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and we will make them whole for any loss of earnings suffered as a result of their discharges. WE WILL NOT refuse to bargain collectively with Local 888, Retail Clerks International Associa- tion, AFL-CIO, as the exclusive collective-bar- gaining representative of all the following employ- ees: All full-time and regular part-time office assistants, truckdrivers, helpers, store manag- ers, store salesmen and payroll department employees employed at our stores, excluding all professional employees, watchmen, guards and supervisors as defined in the Act. WEISMAN FURNITURE AND APPLIANCES, INC., MYLES FURNITURE AND APPLIANCES, INC., HEIDI FURNITURE AND APPLIANCES, INC., FAIR FURNITURE AND APPLIANCES, INC., AND BUENA FURNITURE AND APPLIANCES, INC. (Employer) Dated By (Representative) (Title) We will notify immediately the above-named individ- uals, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, 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 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 36th Floor Federal Building, 26 Federal Plaza, New York, New York 10007, Telephone 212-264-0300. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE PAUL E. WEIL, Trial Examiner : On November 24, 1969, Local 888, Retail Clerks International Association, AFL-CIO, hereinafter called the Charging Party , filed the charge alleging that Weisman Furniture and Appliances, Inc.; Heidi Furniture and Appliances , Inc.; Myles Furni- ture and Appliances, Inc.; Fair Furniture and Appliances, Inc.; and Buena Furniture and Appliances, Inc., hereinaft- er collectively called Respondent, engaged in certain unfair labor practices. On March 27, 1970, the General Counsel, by the Regional Director for Region 2, issued a complaint alleging that Respondent by various acts interfered with, restrained and coerced employees , discharged employees because of their union or concerted activities and failed and refused to bargain in good faith with the Charging Party as the representative of its employees within the meaning of Section 8(a)(5) of the Act. Respondent, by an answer duly filed, admitted the filing of the charge, the fact that each of the Respondents was a corporation and that the Charging Party was a labor organization and denied all other allegations in the complaint , except insofar as it is alleged that Marvin Weisman is and has been the president of Respondents Myles, Heidi, Fair and Buena and Isidore Weisman is and has been the president of Respondent Weisman Furniture and Appliances , Inc. In addition Respondent alleged in its answer that in a Decision and Direction of Election in Case 2-RC-15212 , dated October 22, 1969, the Board made certain findings of fact as to matters alleged in the complaint in which Respondents acquiesced and failed to appeal wherefor said findings may not now be questioned by either Charging Party or the Board and must be deemed exclusive findings "possible on all issues that were raised or could have been raised as to all that happened up to the date of the election." On the issues thus joined the matter came on for hearing before me on June 22, 1970, in New York City. All parties had an opportunity to appear, to adduce evidence , to call witnesses and examine and cross -examine them, to argue on the record and to submit briefs . Briefs were received from the General Counsel and Respondent. In consideration of the record herein and of the briefs, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent consists of five New York corporations each of which at the time material herein maintained a place of business at a separate address all located in the borough of Bronx, city and State of New York within an area the diameter of which is 1 mile. In accordance with the allegation in the complaint and the admission of Respon- dent contained in its answer, relying on the findings of fact in the representation decision, I find that Respondent is and at all times material herein has been an affiliated business with common officers, ownership, directors and operators and constitutes a single-integrated business enterprise engaged in the retail sale of furniture, household 672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD appliances and related products. I find that annually Respondent in the course and conduct of its operations derives gross revenues in excess of $500,000 and causes merchandise valued in excess of $50,000 to be transported directly to its places of business from States of the United States other than the State of New York. Accordingly, I find that Respondent is and has been at all times an employer engaged in commerce within the meaning of Section 2(2), (6) and (7) of the Act.' II. THE LABOR ORGANIZATION INVOLVED The Charging Party is and at all times relevant hereto has been a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Unit All full-time and regular part-time office assistants, truckdrivers, helpers, store managers, store salesmen and payroll department employees employed by Respondent at its five stores, excluding all professional employees, watchmen, guards and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. B. The Facts Union organization on behalf of the Charging Party commenced on July 13.2 Francisco Oliveras, the manager of the Myles store, which is also known as Peoples and usually referred to by that. name through the transcript, together with the Union Business Agent Ivan Ruts, took cards to various of the employees of Respondent who signed them on July 13, 14 and 15. On July 16 or 17 Ruts, together with another union agent, Lucus, went to Weisman's furniture store where they approached Isaac Mizrahi, the manager of the store and asked to see Mr. Weisman. Mizrahi informed them that he was not in the store. They walked out of the store and called Oliveras at the store in which he was employed. Oliveras told them that Weisman was in fact in the store and described him whereupon Ruts and Lucus returned to the store and addressed themselves to Mr. Marvin Weisman, identified themselves and attempted to hand him 15 signed authoriza- tion cards. There is a conflict in testimony at this point. Ruis and Lucus testified that Weisman took the cards and examined each of them and laid them down on his desk. Weisman, Mizrahi and a clerical employee, Brenda Narvaez, all testified that Weisman refused to take and examine the cards. I see no need to determine the issue, it is clear at any rate that Weisman had an opportunity to examine the cards on that occasion. In response to the request for recognition, Weisman stated that only his father i At the hearing when counsel for Respondent attempted to introduce evidence relating to the integration of the business enterprise, the alleged supervisory status of a general manager, and of the store managers, and moved at the close of the General Counsel's case that the complaint be dismissed because inter atia the General Counsel did not adduce evidence that the Charging Party is a labor organization I reminded him that under the terms of the answer as I read it the findings set forth in the decision in the representation matter were alleged by Respondent to be binding on all could grant recognition and his father was not at the store; he suggested that the union agents return the following week. Ruts and Lucus returned about a week later and again asked Marvin Weisman if he was willing to recognize the Union. Marvin Weisman said that his father had not returned and that he could not recognize the Union and informed Ruis that his lawyer would get in touch with the Union. According to Weisman, Ruts returned a day or two later and excitedly asked him if he had posted something sent him by the Labor Board. Weisman testified that a day or two later he received a packet of material from the National Labor Relations Board but apparently had no clear recollection of what was in it. It would appear that his reference was to a copy of the petition filed by the Union on July 17 which resulted in the decision mentioned above. Weisman does not deny that the Union requested recognition on this occasion. Henrietta Finkelstein, who was the bookkeeper for all five of the stores but whose office was located in the Weisman store, testified that a few days after she signed the card Marvin Weisman asked her how she could have signed a card and accused her of letting the Union look at the company books, which she credibly testified she had not done. Mrs. Finkelstein also testified that Marvin Weisman at a later time told her that if the employees were going to start trouble with a union he was going to close up the stores. Francisco Oliveras testified that a few days after he turned the cards over to the union agents Weisman accused him of instigating the Union and asked him why he did not come to Weisman first. He asked Oliveras why the employees wanted the Union and Oliveras told him that the employees were interested in securing benefits that were not being granted by the employer. Weisman suggested that perhaps the employer could get Blue Shield insurance for the employees and they would forget about the Union. Juan Matta, Jr., testified that a few days after he signed the card Marvin Weisman asked him if he had signed a card and when he said that he had done so asked him why. Matta testified that he heard Marvin Weisman ask the same questions of Oliveras and stated that Weisman said he would rather close the shop than deal with the Union. Luis Vargas testified that Weisman asked him four or five times if he signed a card. He never answered until the last time when he answered that he had done so, whereupon Weisman simply smiled and said, "Your time will come." Marvin Weisman testified that as soon as the union agents left his office on the occasion of their first visit he picked up his telephone and called his attorney who advised him not to ask questions or say anything about the Union to any employees. Weisman testified that he followed this advice and at no time mentioned the Union to any employee. I credit Mrs. Finkelstein. I believe that her testimony was parties in the instant proceeding Respondent at those times had an opportunity to amend its answer in the event it did not choose to proceed under the terms thereof and declined to do so It may be noted that counsel representing Respondent at the hearing was not the attorney who prepared the answer, on whose behalf the matter was postponed on two occasions and who never appeared at the hearing 2 All dates herein are in the year 1969 unless otherwise specified. WEISMAN'S FURNITURE AND APPLIANCES truthful and that she attempted to respond to questions both on direct and cross-examination with candor, within the limitations of her ability to remember precise verbiage after a period of almost a year, and I was impressed with her demeanor on the witness stand. On the other hand, with Marvin Weisman I was not so impressed. I noted throughout his testimony a tendency on his behalf to evade the direct question even under examination by his own counsel. I refer to circumstances such as when he was asked, "Did you at any time threaten any of your employees in connection with their union activities" and he answered, "There was no need to threaten any employees. I was under strict orders from my attorney and I adhered to those orders." In response to a question whether he interrogated his employees concerning their activities on behalf of the Charging Party he answered, "That would have been physically impossible. First of all it was difficult for me to get around. I was still on crutches . I was being driven into the place dust to hold the fort for my father." Granted that such a reaction to direct questions is by no means diapositive of the credibility of a witness and in both instances recited above , after a repetition of the direct question by his counsel, Mr. Weisman unequivocally stated his denials, they are recited only as manifestations on the cold record of the demeanor of Mr. Weisman which from hearing him and watching him testify failed to convince me of his candor. Inasmuch as his testimony is categorically opposed to that of Mrs. Finkelstein set forth above, it cannot be reconciled. Convinced as I am of her credibility and unconvinced as I am of his I must discredit him and I do. I find therefore that he made the statements attributed to him by Mrs. Finkelstein. Respondent at the hearing contended that Francisco Oliveras was unworthy of credit both because of internal inconsistencies in his testimony and because of various information adduced with regard to him during his cross- examination. First , Respondent contends that the fact that Oliveras occasionally uses an alias, Antonio Conde, is a disreputable circumstance. Oliveras explained that when he commenced his most recent employment with Respondent he had large debts which he was unable to pay At the suggestion of Marvin Weisman he commenced using the alias, Antonio Conde. (Antonio is one of his given names; Conde is his mother's name . His complete name in the Spanish manner is Francisco Antonio Oliveras-Conde.) Oliveras adopted Marvin Weisman's suggestion and purchased goods on credit under the name of Antonio Conde and Weisman agreed to inform credit investigators that Antonio Conde was indeed employed by him. There is no evidence that the alias, Antonio Conde, was used for any other purpose. Second, Respondent contends that a document which it placed in evidence reveals that Oliveras unlawfully took a number of pieces of furniture from the store for his own use. The document, signed by Oliveras both as Francisco Oliveras and Antonio Conde, recites the identification of the pieces of furniture and the value of each, the total value and states that Oliveras wants to pay for the furniture and wants the furniture returned to his house and further consents and agrees that commission and other moneys due him may be held up for a reasonable time until an audit was 673 made of the store at which he worked. On the bottom of the document is a receipt signed by General Manager Steinberg for payment of the total value of the furniture. Oliveras testified that it was customary and normal for employees of Respondent to be permitted to order pieces of furniture for their own use directly from the wholesale furniture salesmen. Such furniture was then delivered to the store and billed to it and the employee was expected to pay for the material when it was delivered . Prerequisite to such a transaction was for the employee to secure the cooperation of Weisman who had to approve all orders. In the case of the furniture listed on the document in evidence, Oliveras testified that he secured Weisman's permission at a time when Weisman was in the hospital recovering from an automobile accident early in the year 1969. When the furniture was delivered to the store Oliveras took it to his home. When the bills for the furniture arrived at the store, however, Oliveras was himself in the hospital and had made no provisions of paying for the furniture although he had the money available . Weisman in the meantime had apparently returned to work and sent employees to Oliveras' house where it seems they entered the house without permission and removed the furniture therefrom. When Oliveras was discharged from the hospital he returned home and was informed by his wife that Weisman had ordered the furniture taken from his home . He went to Weisman and reminded him that the furniture was purchased with his permission and that it would have been paid for but for the fact that Oliveras was in the hospital when the bill was received. The document in evidence was dictated by Weisman's attorney over the telephone to Oliveras who signed it. An audit was thereafter made at the store and no discrepancy appears to have been uncovered. Although Weisman was present in the hearing room when Oliveras testified and himself took the witness stand thereafter, he made no mention of either incident in his testimony. Accordingly, I infer that the explanations given by Oliveras were correct. While the first incident appears to be derogatory to Oliveras, if anyone is discredited thereby it would be Marvin Weisman , for it was his suggestion that Oliveras followed and it was Weisman's active participation in Oliveras' actions that made it possible . The incident redounds to the credit of neither . The second incident reveals nothing to the discredit of Oliveras but displays Marvin Weisman as both impetuous and ruthless toward his employees. With this background in mind, I am inclined to credit Oliveras' testimony that on the Monday after his discharge, that is to say on August 11, Marvin Weisman accused him of instigating the Union and asked him why he did not come first to Weisman. When Oliveras told Weisman that the employees wanted the Union in order to secure benefits that they were not receiving from Respondent, I believe it is wholly consistent of Weisman to have suggested that Respondent might supply Blue Shield insurance if the employees would forget about the Union and I find it equally believable that Isidore Weisman, father of Marvin and the owner of one of the stores if not all of them, made the same suggestion as Oliveras testified . In his testimony before me Oliveras appeared to be truthful and candid both on direct and cross-examination . I credit his testimony with 674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD regard to both statements he attributes to the Weismans, father and son. Juan Matta, Jr., testified that a few days after he signed the cards Marvin Weisman came to him and asked if he signed a card and on his affirmative answer asked why. Matta also testified that he heard Marvin Weisman ask Oliveras the same question. He testified that in the conversation Weisman said he did not want a union in the store and that he would rather close the shop than have one.3 Matta testified with apparent candor and sincerity. His testimony suffered from the fact that he speaks little English. Most of his testimony on direct examination was taken through an interpreter. Respondent's counsel was permitted on cross-examination briefly to examine Matta in English, but I required counsel to examine him through the interpreter when it became apparent to me that either I was misunderstanding his testimony or he was misunderstand- ing the questions. I credit Matta and I find that Marvin Weisman interrogated him and in his presence informed Oliveras that he would rather close the shop than have it go union. Luis Vargas testified that Weisman asked him four or five times whether he had signed a card before he finally answered in the affirmative at which time Weisman simply smiled and said, "Your time will come." I credit Vargas' testimony. The incident is consistent with Weisman's other interrogations. The general counsel additionally alleged various acts of interrogation and one of a threat by General Manager Steinberg. In view of my disposition of the allegations concerning Marvin and Isidore Weisman, I deem it unnecessary to resolve the issues raised thereby,4 inasmuch as the order herein would be in no way changed by the disposition of those allegations. The Discharges The General Counsel contends that the following employees were discharged because of their participation in the union organization: 1. Luis Vargas: The General Counsel contends that Luis Vargas was discharged on August 9, 1969, because he signed a card for the Union. Vargas testified that Marvin Weisman on August 9 called to him and simply asked him for the keys and registration to his truck and told him he had no more work for him. Nothing further was said. Other than signing a card Vargas took no part in the union organization. Marvin Weisman testified that Vargas was the brother-in-law of Issac Mizrahi and that he also had a brother employed by Respondent.5 Vargas had been employed over a period of years by Respondent except for a period after he quit because of Marvin Weisman's refusal to pay him for overtime work. He reappeared after 2 weeks and Weisman put him back to work. Weisman testified that 3 Oliveras did not corroborate the testimony of Matta with regard to the interrogation of Oliveras by Weisman It was obvious that Oliveras had a great deal of trouble recalling the time of the various occurrences concerning which he testified He testified at one point to an interrogation by Weisman taking place 2 or 3 days after he signed the card which is consistent with the timing testified to by Matta However, later in his testimony and cross-examination Oliveras testified that the interrogation took place the day after his discharge on August 11, which was almost a shortly before August 9 he received a complaint from a valued customer, a friend of his father to whom some merchandise had been sold which was delivered by Vargas. The customer complained that Vargas refused to place the furniture where he wanted it in his home and became insolent and insulted him with ethnic vituperation. Weisman testified that he was angry because of this complaint and asked his attorney if he could discharge Vargas. The attorney told him to do what he had to do whereupon he discharged Vargas without explanation. Vargas was not recalled in rebuttal and there is no testimony as to the incident other than that of Weisman, corroborated by testimony of Brenda Narvaez that she had originally received a complaint. I conclude from the failure of the General Counsel to meet the evidence of Weisman and Narvaez that the incident occurred as testified. Under the circumstances, I find that the General Counsel has not sustained his burden of proof that Vargas was discharged because of his union adherence. It may be noted that as far as the record shows 15 of the 19 employees were card signers and, if I credit the testimony of Union Agents Ruis and Lucus, Weisman was aware throughout what employ- ees had signed cards. Accordingly, I shall recommend that the complaint be dismissed insofar as it alleges the discharge of Luis Vargas to be discriminatory. 2. Oswaldo Comacho: At the hearing the General Counsel amended the complaint to allege that the discharge of Comacho was discriminatory. Comacho was not called as a witness and the General Counsel produced no evidence in support of his allegation other than that he was terminated on August 9 at the same time as Vargas, that he was Vargas' helper as well as a porter and that he signed a union card. When Vargas testified about his own discharge he testified that he was alone, that Comacho was not with him and that he did not speak to Comacho after his discharge. Marvin Weisman testified that he at no time discharged Comacho but that he did not reappear for work after Vargas' discharge. He surmised that perhaps Vargas told him that he too was discharged. In the complete absence of evidence even that a discharge is involved, I cannot find any discrimination with regard to Mr. Comacho. Accordingly, I shall recommend that the complaint be dismissed insofar as it is alleged therein that he was discriminatonly discharged. 3. Jose Pagan. Jose Pagan was the helper on a second truck operated by Respondent of which his brother, Carlos, was the driver. Both Pagans were card signers; there is no evidence that either engaged in any other form of union or concerted activity. Jose Pagan testified that a few days after he signed a card, which is dated July 14, Marvin Weisman asked him in one of the stores if he signed a card for the Union. He told Marvin that he had done so. Nothing else was said. A few days later he arrived at 9:30, his usual time to come to work, and was cleaning the store. When his month after he signed the card Under these circumstances I cannot say that his testimony was unequivocally contradictory to or supportive of that of Matta 4 While the decision in the representation case is not clear, it is at least arguable. as Respondent indeed argues, that Bernard Steinberg was found therein not to be a supervisor 5 The record reveals no other employee named Vargas on the payroll of Respondent during the critical period WEISMAN'S FURNITURE AND APPLIANCES 675 brother, Carlos, arrived, Weisman told both the Pagans that they did not work there any more. On cross-examination Jose Pagan testified that after he admitted signing the card he asked for a raise and Marvin Weisman told him "Now less than ever" and discharged him. Respondent placed in evidence the affidavit signed by Jose Pagan during the investigation of this matter. In the affidavit he stated "only at 10 o'clock when my brother arrived with the truck, Marvin told my brother and me that we had no more work because it was slow. My brother and I left saying nothing. Marvin said nothing about when we could come back to work, I did not try to go back to work since." Marvin Weisman testified that Jose Pagan and his brother, Carlos, came into his office on August 9 and asked for a raise, Carlos was the speaker and he said in Spanish that he and his brother wanted a raise, otherwise he would drive a gypsy cab, he made more money at night than during the day. Weisman refused the raise whereupon Carlos said, "All right, here is the keys" and walked out with his brother. Brenda Narvaez testified that she was present when the above conversation took place and that the entire conversation was in Spanish by Carlos Pagan and in English by Weisman. She testified that she did the interpreting between them. Her story substantially corrobo- rated that of Weisman.6 In view of the discrepancy between Carlos Pagan's affidavit and his testimony and the fact that his testimony is consistent to a certain extent with that of Marvin Weisman, I do not credit Pagan's testimonial version of the conversation. Accordingly, I find that the General Counsel has failed to present substantial evidence on the record as a whole contradicting that of Weisman that in fact the Pagan brothers resigned when he denied them a raise. 4. Carlos Pagan. Carlos Pagan testified that at the Weisman store on August 9 he asked Marvin Weisman for a salary raise because he was working all by himself for five stores. A week or two before that time Weisman had discharged the other truckdriver (Luis Vargas). He was not present when Weisman discharged his brother. Weisman asked him if he had signed a card for the Union. When he acknowledged that he had done so Weisman told Carlos he could not give him a raise, asking for the keys and registration of the truck, and told him to go home. On cross-examination he testified in response to the question, "Do you own a taxi cab Mr. Pagan?" "I worked for a company only on weekends." He stated that Weisman did not tell him that business was bad and that in fact business was good. The company records reveal that the Pagans were discharged on August 23, 2 weeks after the date on which they testified they were discharged. I note that Carlos Pagan's testimony is inconsistent with that of his brother contained in his affidavit as well as with that of Marvin Weisman. I do not credit Carlos Pagan's testimony and, as I have found above, General Counsel has not sustained his burden of proof with regard to this allegation. Accordingly, I shall recommend that the allegations regarding the two Pagans be dismissed. 5. Francisco Oliveras, Henrietta Finkelstein, Juan Matta, Linda Jackson: These four employees were all discharged on either Sunday, August 10, or Monday, August 11. Each of these four employees was called on the telephone by Marvin Weisman who informed them that they need not come to work because the store in which they were employed was being shut down. Each of them went into the store the following morning and confronted Weisman, he told each of them they were discharged because the store was shut down. Mrs. Finkelstein testified that after she got her things together she went down to Weisman's office and spoke to him personally. She told him she could not understand him shutting down the store, especially without giving any notice. Weisman answered that he did not have to keep the stores open, they were not doing too much business and the employees were giving them trouble with the Union. She testified that she had no further conversa- tions at anytime with Weisman other than to call him and ask for payment of $30 for the Fourth of July holiday. He answered, "What makes you think I have to pay for the holiday." Weisman testified that while he had been in the hospital the financial situation at the Peoples or Myles store deteriorated rapidly and that after he left the hospital and was convalescing from an operation on his foot he could not get around as much as he had theretofore to see how to alleviate the situation. Accordingly, he determined to close the Myles and the Heidi stores. He testified that he immediately telephoned the five employees at the Myles store. (Steinberg the general manager was the fifth employee.) He informed Finkelstein, Jackson, Oliveras and Matta that he was shutting the store down and their services would no longer be required and told them that they could get their personal belongings on Monday, August 11. As far as the Heidi store was concerned he testified that the manager at that time was on vacation and the other employee in the store, Jose Hernandas, was "in the process of moving to Connecticut and decided to work in Connecticut and never returned." Within 2 weeks, before Frank Medina, Heidi' s manager, returned from his vacation , Weisman reopened the Heidi store at the suggestion of the finance company who carried his paper. Bernard Steinberg, the general manager, moved his office to the Heidi store and Jesus Munoz who had been employed at the Weisman store was transferred to the Heidi store . Thereafter Weisman determined that the Weisman store, which was located in an old building owned by the Weismans, should be closed because of the fact it was so constructed that it was difficult to protect it against thieves and hoodlums and the operations from that store were moved to the prior situs of the Peoples or Myles store. It is not clear from the record when this move took place. On June 23, 1970, Weisman testified, he closed the Fair e Isaac Mizrahi also testified to the incident He testified that the two Pagans , Weisman , Miss Narvaez and he were present, that Carlos asked for a raise and said they would quit if they did not get one When Weisman refused to give them a raise Carlos handed Weisman the keys and they left He testified on cross-examination first that Carlos spoke in broken English and that Weisman understood some Spanish Then , on second thought, he decided that Carlos might have spoken in Spanish . Brought to the subject again, he testified that he would say that Carlos spoke in Spanish and that he, Mizrahi, acted as the interpreter His next version was that he interpreted part of the conversation but heard it all Finally, reminded that Miss Narvaez was present he decided that she might have done some translating. I believe that he had no recollection of the conversation, if indeed he was present 676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD store. One of the employees was transferred to the Weisman store (now occupying the Myles-Peoples premises), another went to the Heidi store and the record is not clear what happened to the third.? The General Counsel contends that the closing of the Myles store was motivated by the incidence of union organization. Marvin Weisman produced no records of any kind supportive of his testimony that the store was in financial trouble. The record reveals that employees were not necessarily carried on the payrolls of the stores in which they worked and in fact some of the employees received paychecks from more than one, store. Whether this was the occasion for the allegedly high overhead at the Myles store cannot be ascertained from the transcript. If the overhead was due to fixed costs such as costs of protection, rent, utilities and the like it is difficult to see how Respondent bettered its position by thereafter moving the Weisman store into the Myles premises. It is notable also that two of the four employees discharged with the closing of the Myles store were general corporate employees; Mrs. Finkelstein and Miss Linda Jackson were the bookkeepers for the entire five-store complex. No explanation is given for the brief closing of the Heidi store, and its immediate reopening at the request of the finance company raises an inference that it was an economically unsound action on the part of Weisman Insofar as Respondent's defense is based on the fact that it no longer needed as many employees as it had, a further complication appears on the record. Marvin Weisman was asked to produce personnel records, especially including records bearing the signatures of employees. He stated that he was able to get only a few and pointed out that no particular payroll period was indicated by the General Counsel. The few that he brought to the hearing were Isaac Mizrahi, Edgar Pagano, Jose Rivera, Gabriella Ortez and Marcellino Rodriguez. With the exception of Isaac Mizrahi, none of the names recited by Weisman are names that appeared on the employer's payroll according to his testimony on July 14, 1969. I believe a fair inference is that these employees were hired since that time. Nevertheless, it does not appear that Respondent at any time or now at the present is prepared to take back the four employees .8 I find that Respondent's defenses to the discharge allegation with regard to Finkelstein, Oliveras, Jackson and Matta are not supported by the facts on the record. Mrs. Finkelstein testified that she had some knowledge of the financial conditions of the stores and that certain stores did more business than Peoples but that business was "routed" from one store to another and extra expenses, as for instance payroll expenses, were put on the Peoples store. She testified that she did not know if Peoples or Heidi was in any financial difficulty. In view of the timing of the store closing, 3 weeks after r The General Counsel moved to amend the complaint to allege that by closing the Fair store without notifying the Union in advance, Respondent violated Section 8(a)(5) of the Act I declined to permit the amendment at that late date (the third and last day of the hearing) inasmuch as an order to bargain which would ensue in the event the General Counsel prevails on the allegations already in the complaint would encompass the duty to bargain about closing a store or any other bargaining duty under the Act No appeal was taken from my ruling. 8 i suggested to the General Counsel that he not seek enforcement of a subpena nor delay the hearing to get the signatures when it appeared that the advent of the Union, and the inconsistency latent in Respondent's defense between the problem, i.e., the economic motivation, and its alleged solution, including the layoff of the bookkeeper and her assistant and the later removal of the Weisman store to the Peoples location, I conclude and find that Respondent's defense is a pretext and that in fact the discharge of Jackson, Finkelstein, Oliveras and Matta was in retaliation for their support of the Union. Accordingly, I find that the discharge of these four employees was in order to discourage union member- ship and violated Section 8(a)(3) and (1) of the Act. The Refusal To Bargain I have found above that the unit, consisting of all full- time and regular part-time employees of Respondent's five stores, is an appropriate unit within the meaning of Section 9(b) of the Act. The testimony of Marvin Weisman, derived from Respondent's records, reveals that on July 17, the date upon which Union Representatives Ruis and Lucus called on Weisman to demand recognition, 19 employees were in the unit. Ruis testified that he had in his possession and displayed to Marvin Weisman 15 authorization cards signed by employees. The 15 cards were received in evidence, all are dated July 14, 1969, except 2, 1 of these signed by Carlos Carrion, dated July 13, the other bearing the name Jaime Pons bearing the date July 15. Fourteen of the fifteen cards were identified by Francisco Oliveras, who testified without contradiction that he saw the cards signed by the persons whose names appeared thereon. No attack is made by Respondent on any of the cards except that of Brenda Narvaez who, called by Respondent, testified that although she signed the card she did so only because Oliveras threatened that he would cause her to lose her job if she did not .9 Miss Narvaez also testified that within 2 days of signing the card she asked Oliveras to return it to her because she had changed her mind. She did not indicate in her testimony what, if anything, had caused her to change her mind or what, if anything, mitigated the alleged threat which I do not believe occurred. At any rate even were I to assume that her card was invalid, 13 of the 15 cards are subject to no challenge cognizable under the Board's rules.iO The 13 cards, of course, comprise a clear majority of the 19 employees in the unit found appropriate by the Board in the representation case. No issue is raised by Respondent as to the sufficiency of the Charging Party's demand for recognition. Accordingly, it appears that the Charging Party is the majority representative of the employees in a unit appropriate for collective bargaining and as such has made an adequate demand for recognition from the employer. It appears further and it is admitted that the employer has refused to bargain with the Union. Under these circumstances the he proposed to have the Trial Examiner compare signatures for the purpose of proving the card of Frank Medina There is no indication that Medina is not available and I declined, under the circumstances, to undertake to determine from the companson of the signatures that in fact Medina signed the card which is in evidence 9 1 do not credit Miss Narvaez in her testimony and I do credit Oliveras' denial that he made any such threat 10 See N L N B v. Gissel Packing Co, Inc. 395 U S 575, accepting and approving the Board's Cumberland Shoe rule. Cumberland Shoe Corp, 144 NLRB 1268 (1964) WEISMAN'S FURNITURE AND APPLIANCES General Counsel contends that a bargaining order should issue in the instant case. Respondent advances the argument in its answer and at the hearing that the findings of the Board in the representation proceeding" must be deemed "exclusive findings possible on all issues that were raised or could have been raised as to all that happened up to the date of the election" and that "Local 888 (the Charging Party) and the National Labor Relations Board cannot now for the first time make new inconsistent allegations after each of the Respondents acquiesced and failed to appeal from the prior finding." Respondent points out that the charge in the instant case was not filed until the day before the election, held pursuant to the Regional Director's decision, nor served until the day of the election. Accordingly, Respondent contends that only by the election process ordered in the decision of the Regional Director may the question concerning representation found to exist in that decision be resolved. Respondent's argument is fallacious in that it fails to distinguish between the findings of fact and conclusions of law reached by the Regional Director (and, thus in the absence of an appeal, by the Board) and the order of election predicated thereon in order to resolve the question concerning representation. As the Supreme Court pointed out in the Gissel case (supra) a "Board election is not the only method by which an employer may satisfy itself as to the union's majority status" quoting its decision in United Mine Workers v. Arkansas Oak Flooring Co., 351 U.S. 62, 72, fn. 8 (1956). Respondent's insistence herein that the ballots, which have been impounded since the election was conducted the day after the filing of the charges, should now be opened and counted and the question concerning representation resolved thereby is within its rights unless Respondent has engaged in "contemporaneous unfair labor practices likely to destroy - the Union's majority and seriously impede the election." I have found above that Respondent has engaged in widespread interrogation of employees concerning whether and why they designated the Union as their collective-bargaining representative, threatened retaliation in the form of closing the stores, attempted to undermine the employees' determination to organize by the offer of Blue Shield insurance and actually closed two stores and discharged four employees in retaliation for their union activities . Clearly actions of the nature which I found to have been committed by Respondent necessarily have the effect of undermining the Union's strength and destroying the laboratory conditions necessary to a fair election. As the Board has found in many cases, with the specific approval of the Supreme Court in Gissel (supra), where the intervening unfair labor practices of an employer are of such a nature that their coercive effects cannot be eliminated by traditional remedies, a bargaining order may be necessary to effectuate the purposes of the Act and protect the employees in their determination of representation. I find that the unfair labor practices found to have been committed herein are of such a nature that a fair and reliable election could not be held now or in the ascertainable future, even after the traditional remedies of reinstatement with backpay and notice posting 677 were consummated. Accordingly, I shall order that Respondent recognize and bargain with the Union, upon demand, in addition to the specific remedies for the violations of Section 8(a)(I) and (3) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with Respondent's business operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent engaged in the unfair labor practices set forth above , I recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Such affirmative action will include recognition and bargaining on demand with the Union as the representative of its employees in the unit spelled out above . Having found that the Respondent unlawfully discharged four of its employ- ees, I shall recommend that Respondent offer them immediate and full reinstatement to their formerjobs or, if their jobs no longer exist , to substantially equivalent jobs, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay they may have suffered by reason of the discrimination against them by payment to them of a sum of money equivalent to that which they normally would have earned in Respon- dent's employ. This sum shall be calculated in the manner established by the Board in F W. Woolworth Company, 90 NLRB 289, with interest at the rate of 6 percent per annum as set forth in Isis Plumbing & Heating Co., 138 NLRB 716. I do not deem it appropriate to recommend an order that Respondent be required to reopen any store now closed. It appears that its various stores are operated as a unit, to a great extent, being opened and closed as business exigencies dictate . It also appears that a certain amount of turnover of employees takes place in Respondent's business. Accordingly, it does not appear that an additional storesite is necessarily required to permit reinstatement of the employees whose discharge is found herein to have been discriminatory. CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent discharged Juan Matta, Francisco Oliveras, Henrietta Finkelstein and Linda Jackson because they engaged in union or concerted activities and in order to discourage membership in the Charging Party and thereby violated Section 8(a)(3) and (1) of the Act. 11 As evidenced in the Decision and Direction of Election of the Regional Director for Region 2, dated October 22, 1969 678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. By threatening employees with discharge, by coer- cively interrogating employees concerning their union activities, by offering promises of benefit to employees if they forgot the Union and by threatening to shut the shops in the event the employees chose the Union as their collective-bargaining representative, Respondent inde- pendently violated Section 8(a)(I) of the Act. 5. All full-time and regular part-time office assistants, truckdrivers, helpers, store managers, store salesmen, and payroll department employees of Respondent, exclusive of all professional employees, watchmen, guards and all supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 6. By failing and refusing to recognize and bargain with the Union as the exclusive collective-bargaining representa- tive of Respondent's employees in the unit described above with respect to rates of pay, wages, hours and other terms and conditions of employment of such employees, Respon- dent has violated Section 8(a)(5) and (I) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER i2 Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in this case, I shall recommend that Respondent Weisman's Furniture and Appliances, Inc., Myles Furniture and Appliances, Inc.; Heidi Furniture and Appliances, Inc.; Fair Furniture and Appliances, Inc.; and Buena Furniture and Appli- ances, Inc.; its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in Local 888, Retail Clerks International Association, AFL-CIO, or any other labor organization by discharging any employee or by discrimi- nating in any other manner with respect to hire or tenure of employment or any term or condition of employment. (b) Interrogating employees concerning their union activities, threatening them with discharge in the event they engage in union activities, threatening to close the shops in 12 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'Boardi and become its findings , conclusions, and order, and all objections thereto shall be deemed waived for all purposes is 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 the event the employees choose a collective-bargaining agent, offering employees benefits to induce them to desist from engaging in activities on behalf of the above-named Union or any other labor organization or in any like or related manner interfering with, restraining or coercing its employees in the exercise of their rights guaranteed in Section 7 of the Act. (c) Refusing to bargain collectively in good faith concerning rates of pay, hours of employment and other terms and conditions of employment with Local 888, Retail Clerks International Association, AFL-CIO, as the exclu- sive representative of the employees in the appropriate unit described in the section above entitled "Conclusions of Law." 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer to Juan Matta, Jr., Francisco Oliveras, Henrietta Finkelstein and Linda Jackson immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent jobs and make them whole for any loss of pay suffered by the reason of their unlawful discharge in the manner set forth in the section entitled "The Remedy." (b) Upon request bargain collectively in good faith with the above-named Union as the exclusive representative of all employees in the appropriate unit and embody in a signed agreement any understanding reached. (c) Post at each of its stores in the city of New York copies of the attached notice marked "Appendix." 13 Copies of said notice, on forms provided by the Regional Director for Region 2, 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, includ- ing all places at the respective shops where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 2, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.14 BY ORDER OF THE NATIONAL 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." 14 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 2, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith "