Dayton Town and Country Furniture Shop, Inc.

DAYTON TOWN & COUNTRY FURN. SHOP Dayton Town and Country Furniture Shop , Inc. and Sales Drivers, Sales & Service Local Union 1176, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Hel- pers of America. Case 9-CA-4245 July 2, 1968 DECISION AND ORDER 955 2. Delete from the fourth paragraph of the Notice to All Employees that part thereof which reads "in any like or similar manner " and substitute therefor "in any other manner ..." i We do not adopt the Trial Examiner's gratuitous conclusion that had Mays testified , his testimony "undoubtedly would have been of little value" because Mays assertedly was taken into custody by the F B.I. r Inasmuch as Respondent 's unfair labor practices strike at the very roots of employees' rights safeguarded by the Act, we shall issue a broad Order herein. Dennison Manufacturing Company, 168 NLRB 1012, Barnwell Gar- -ment Co , 163 NLRB 51 By MEMBERS BROWN, JENKINS, AND ZAGORIA On March 28, 1968, Trial Examiner Wellington A. Gillis issued his Decision in the above -entitled proceeding , finding that the Respondent had en- gaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended , and recommending that it cease and desist therefrom and take certain affir- mative action , as set forth in the attached Trial Ex- aminer 's Decision . The Trial Examiner also found that the Respondent had not engaged in certain other alleged unfair labor practices and recom- mended dismissal of those allegations of the com- plaint. Thereafter, the Respondent filed exceptions to the Trial Examiner 's Decision together with a supporting brief. 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 and brief, and the entire record in the case, and hereby adopts the findings, conclusions,' and recommenda- tions of the Trial Examiner , as modified herein.2 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 Respondent, Dayton Town and Country Furniture Shop , Inc., Dayton, Ohio, its officers , agents, successors , and assigns, shall take the action set forth in the Trial Ex- aminer's Recommended Order , as herein modified. 1. Delete from paragraph 1(c) of the Trial Ex- aminer's Recommended Order that part thereof which reads "In any like or similar manner" and substitute therefor "In any other manner ..." TRIAL EXAMINER 'S DECISION STATEMENT OF THE CASE WELLINGTON A. GILLIS, Trial Examiner: Upon a charge filed on April 7 , 1967, by Sales Drivers, Sales & Service Local Union 176, affiliated with the International Brotherhood of Teamsters , Chauf- feurs, Warehousemen and Helpers of America, hereinafter referred to as the Union , the General Counsel for the National Labor Relations Board, hereinafter referred to as the Board , issued a com- plaint on June 19, 1967, against Dayton Town and Country Furniture Shop , Inc., hereinafter referred to as the Respondent or Etnployer, alleging viola- tions of Section 5(a)(1), (3), and ( 5) and Section 2(6) and ( 7) of the National Labor Relations Act, as amended ( 61 stat. 136), hereinafter referred to as the Act . A timely answer to the complaint was filed on June 29 , 1967, wherein the Respondent de- nied the commission of any unfair labor practices. In Case 9-RC-7152, based upon a representation petition filed by the Union on February 16, 1967, and pursuant to an Agreement for Consent Elec- tion , approved by the Regional Director on March 17, 1967, an election by secret ballot was con- ducted on March 31, 1967, among certain of the Employer's employees.' Thereafter , on April 7, 1967, the petitioning union filed timely objections to conduct affecting the results of the election. Pur- suant to the provisions of Section 102.69 of the Board 's Rules and Regulations, the Regional Director conducted an investigation of the issues raised by the objections . Based upon the results of his investigation , the Regional Director overruled some of the objections and referred others for the purpose of hearing to a Trial Examiner by his order dated July 14, 1967, consolidating Case ' The appropriate bargaining unit described in said Agreement consisted of "all warehousemen, truck drivers and helpers employed by the Em- ployer at its warehouse located at 605 South Patterson Boulevard , Dayton, Ohio, but excluding all office clerical employees , salesmen and all guards, professional employees, and supervisors , as defined in the Act, and all other employees ." The tally of ballots issued by the Regional Director for Region 9 showed that the Petitioner failed to receive a majority of the votes cast by the approximate nine eligible voters. 172 NLRB No. 103 956 DECISIONS OF NATIONAL 9-RC-7152 with Case 9-CA-4245.2 Pursuant to notice , a hearing on the consolidated cases was held by me at Dayton, Ohio, at which all parties were represented by counsel and were afforded full opportunity to be heard , to examine and cross-ex- amine witnesses , to introduce evidence pertinent to the issues, and to make oral argument . Timely briefs were subsequently filed by counsel for the General Counsel and the Respondent. Upon the entire record in this matter , and from my observation of the witnesses and their demeanor on the witness stand , and upon substantial , reliable evidence "considered along with the consistency and inherent probability of testimony " ( Universal Camera Corporation v. N.L.R.B., 340 U.S. 474, 496), I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT Dayton Town and Country Furniture Shop, Inc., an Ohio corporation, is engaged in the retail sale of furniture from its stores located in Dayton, Ohio. During the past calendar year, the Respondent has retailed gross sales in excess of $500,000 and had a direct inflow of goods in excess of $50,000, which it purchased and caused to be shipped in interstate commerce from points directly outside the State of Ohio to its warehouse on South Patterson Bou- levard in Dayton, its only location involved in this proceeding. The parties admit, and I find, that the Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Parties admit, and I find, that Sales Drivers, Sales & Service Local 176, affiliated with the Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues 1. Whether, on January 31, 1967, and at other times during the month of February,3 the Respon- dent, through its warehouse superintendent, Clifton Purvis, interrogated and threatened its warehouse ' The portion of the Petitioner 's objections referred to the by Trial Ex- aminer asserts that ( I) after the petition was filed, the Employer discharged employees Andrew Thomas, James Louis, and Zenith Combs because they had authorized the Petitioner to represent them in collective bargaining with the Employer, and (2 ) on or about February 17, 1967, the Employer by its supervisors coercively questioned its employees concern- ing their activity on behalf of the Petitioner This alleged election conduct is also set forth as Section 8(a)(3) and ( I) violations, respectively, in the complaint in Case 9-CA-4245 LABOR RELATIONS BOARD employees within the meaning of Section 8(a)(1) of the Act. 2. Whether, in terminating the employment of David Griffith, Zenith Combs, Andrew Thomas, and James Louis, during February and March, the Respondent did so for reasons relating to their union activity in violation of Section 8(a)(3) of the Act. 3. Whether, in refusing to recognize and bargain with the Union since February 16, the Respondent did so in bad faith, thereby violating Section 8(a)(5) of the Act. 4. Whether the results of the election conducted on March 31, among Respondent's employees, should be set aside. B. The Facts 1. Background In late January, warehouse employee David Grif- fith, one of the alleged discriminatees herein, con- tacted Robert Rodgers, secretary-treasurer of the Union, seeking an appointment to discuss the or- ganization of the Respondent's warehousemen and drivers. As a result of an ensuing conversation in the Union's office, Rodgers gave Griffith a number of union authorization cards for signature, the former suggesting that Griffith get cards signed by a majority of the employees as a prelude to requesting recognition from the Company." Very shortly thereafter, within, 2 or 3 days, Griffith turned over to Rodgers approximately 10 cards, all of which had been signed by the employees on January 3 1. Thereafter, on February 13, or 14, Rodgers at- tempted to call Kenneth Lebensburger, the Respon- dent's vice president, at his office, and, when told that Lebensburger was not available Rodgers left his name "and who he was." On February 14, Rodgers sent Lebensburger a letter, which was received on February 16, apprising him of the fact that his drivers and warehousemen had become members of the Union and requesting a reply from him concerning a meeting for the purpose of con- tract negotiations. On February 15, Rodgers filed a representation petition with the Board, which petition was received by the Regional office on February 16. The Union made no further effort to contact the Respondent, and at no time during this period did the Respondent attempt to get in touch with the Union. ' Unless otherwise set forth, all dates refer to the year 1967 ' The authorization card, in addition to providing blank spaces to be filled an, states that the employee signing authorizes "Local Union No 176, of the 1 B of T C W and H, my collective-bargaining representative, to enter into agreement with my employer for wages and working conditions and requiring membership in the Local Union No 176 of I B of T C W and H as a condition of employment " DAYTON TOWN & COUNTRY FURN. SHOP 2. Alleged interrogation and threats Based upon the credited and uncontradicted testimony of alleged discriminatee Zenith Combs, approximately 30 minutes after union authorization cards had been signed in the warehouse on January 31 by some 10 warehouse and driver employees, in- cluding Combs, Superintendent Purvis met Combs in front of his office in the warehouse. Purvis asked Combs whether Dave Griffith had approached him with a union card, to which Combs replied that he had not. Later the same day, according to the testimony of Combs, while on the loading dock, Purvis asked two other employees, Dewey and Hen- derson, whether each had signed cards and, in each case, was told that he had. Still later, on the third floor of the warehouse, Purvis was heard to ask another employee, Jones, whether he had signed a card, to which Jones replied that he had not.5 Im- mediately after querying Jones, Purvis volunteered to Combs that "he would find out all the men that had signed cards and he would get rid or fire them." According to the credited and uncontradicted testimony of alleged discriminatee Andrew Thomas, a few days after he signed a card on January 31, a date which I find to have been on or about February 3, Purvis asked him whether he had signed a card. When Thomas replied, contrary to the fact, that he had not, Purvis asked him if he knew of anyone else who had signed a union card. Thomas answered that he did not. About a week after signing a union card, which would place it around February 7, according to the credited and uncontradicted testimony of alleged discriminatee James Louis, Purvis asked Louis in the former's office whether he had signed a union card. When Louis acknowledged that he had, Pur- vis informed Louis that he had talked to several fel- lows and that he (Louis) was only the second one who had admitted signing the card. In reply to Pur- vis' query, Louis volunteered that a lot of the men were scared of him, afraid of their jobs. Purvis responded by stating, "well, a thing like this ... I am not saying it can't happen, or it won't happen ... but they could lose their job like this." Purvis con- cluded by boasting that "as long as I am here, there 'While the full names of these three employees were not given in Combs' testimony , G C Exh 3, consisting of the Respondent 's employee payroll for the period ending February 15, 1967, lists a Jesse Henderson, a Robert Jones, and a Dewey Merritt I find these to have been the em- ployees involved. ' Louis, in testifying that he had several other conversations with Purvis, elaborated by stating that "sometimes if I got in early we would probably talk 5 or 10 minutes about it, sometime in the morning time while I was routing my bills, if nobody was around , he and I would talk 5 or 10 minutes." When asked what , if anything , Purvis asked during these conver- sations, Louis replied, " well, it was all the same old story, just routine con- versation " I Purvis' testimony was that when Ledensburger received on February 17 the Board 's notice to employees, which sets forth the rights of em- ployees as well as prohibited conduct toward employees, Lebensburger called him and told him that he was not allowed to say anything to the em- ployees about the Union Even if, as he testified, he followed these instruc- 957 won't be no union come in here ... even if he had to go into his own pocket to see that it wouldn't." A week later, which I find to be on or about February 14, while talking with Louis in his office, Purvis told Louis that he could not see what the Union could do for the employees. He told Louis that he had a pretty fair job and was doing all right, that no one was breathing down his neck, and that he could not see where the Union could help him. This conversation ended with Louis and Purvis discussing generally the advantages and disad- vantages of the Union." The above factual findings relating to conversa- tions and statements attributed to Purvis are based upon the credited and reliable testimony of Combs, Thomas, and Louis. As Purvis, who testified briefly, was not questioned on these matters, they stand un- denied.7 Thus, I find the following conduct of Warehouse Supervisor Clifton Purvis to constitute interference, restraint, and coercion of employees within the meaning of Section 8(a)( 1) of the Act:" (1) Interrogating Zenith Combs on January 31 as to whether Griffith had approached him with a union card. (2) Interrogating Dewey Merritt and Jesse Hen- derson on January 31 as to whether they had signed union cards. (3) Interrogating Robert Jones on January 31 as to whether he had signed a union card. (4) Threatening Zenith Combs on January 31 that "he would find out all the men that had signed cards and he would get rid or fire them". (5) Interrogating Andrew Thomas on February 3 as to whether he had signed a card and whether he knew anyone else who had signed a union card. (6) Interrogating James Louis on February 7 as to whether he had signed a union card. (7) Threatening James Louis on February 7 with the loss of jobs of employees who signed with the Union. (8) Threatening James Louis on February 7 that "as long as I am here, there won't be no union come in here." I find that Purvis' conversation with Louis on February 14 and any similar "just routine conversa- tions" between Louis and Purvis during which they both discussed the advantages and disadvantages of tions and those posted on the notice, the fact remains that all of these con- versations and statements preceded the Company's receipt of the notice and therefore Purvis' testimony in this regard could not constitute a denial. Section 8 (a)( I) provides It shall be an unfair labor practice for an employer- (I) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7, Section 7 provides Employees shall have the right to self-organization , to form, join, or assist labor organizations , to bargain collectively through representa- tives of their own choosing , and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protec- tion , and shall also have the right to refrain from any or all of such ac- tivities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condi- tion of employment as authorized in section 8(a)(3) 958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Union do not constitute unlawful conduct but rather are protected under Section 8(c) of the Act.9 3. Alleged discriminatory layoffs a. David Griffith David Griffith went to work for the Company in late October 1966 as a handler in the warehouse, and continued to work as such until his layoff on February 11, 1967. Griffith was the leading union adherent among the Respondent 's employees and initiated the movement toward organizing the Respondent 's warehouse . Thus , after ascertaining a favorable reaction among the employees toward a union , Griffith , in late January, contacted Rodgers of the Union and obtained a number of union authorization cards. On January 31, Griffith signed one himself, and then proceeded to secure signa- tures on nine others from warehouse and driver em- ployees . All cards were signed at the warehouse in Griffith 's presence and immediately returned to him. Griffith , in turn, took all 10 cards to Rodgers either that day or the following. A week and a half later , on Friday, February 10, Purvis approached Griffith on the warehouse floor and told him that because of a shortage of work he was going to have to let him go . Griffith accepted the layoff, apparently without question , but later asked Purvis if he could work I additional week. Receiving a negative reply , Griffith reported the following morning, Saturday, when he worked 4 hours, but, upon reiterating his request of Leben- sburger, was told that work was very slow and that this would have to be his last day. b. Andrew Thomas Andrew Thomas was hired by the Respondent on November 15, 1966 , as a truckdriver out of the Respondent's warehouse . Thomas was among those signing union cards on January 31. On Saturday, March 4, Purvis told Thomas that he had some bad news for him, that he was going to have to lay him off. When Thomas asked for an explanation , Purvis told him that business was dropping, that he was going to have to lay others off. Thomas then asked how could business be dropping when he and James Louis were working from 8 a.m. until 9 or 10 o'- clock in the evening . Purvis replied that he could not explain that , that "I just got to lay you off. That's it." c. Zenith Combs Zenith Combs was first hired by the Respondent in February 1964, and worked as a handler in the warehouse . Combs signed a union card the same time as the other employees . On Friday , March 10, around 3 p.m., Purvis called Combs into his office and told him that work was getting slow, that he was going to have to lay off some men. Purvis then asked him which one of three particular employees he felt "would be best to be laid off." Combs replied that he did not know, that they were truckdrivers and helpers , and therefore he had not worked with them . About 5 p.m., the same day, as he was leaving, Combs was approached by Purvis and told that "he was sorry but he 'd have to let me go and that was all there was." The following morn- ing, Combs returned to the warehouse and inquired of Purvis as to wages he had coming . Upon being told to pick it up on Friday, Combs asked Purvis why he had called him in and asked him his opinion of whom to lay off, and then turned around 2 hours later and laid him off. Purvis replied that "he got orders later on in the day, and that he was a com- pany man and that 's all he could say." A short while later, around 10:30 a .m., Combs talked with Lebensburger and Sidney Weiner, Respondent's president, on the second floor of the warehouse, during which conversation Lebensburger asked Combs what seemed to be the trouble. Combs asked for a reason why he was laid off. When Lebensburger replied that it was lack of work, Combs charged that such was not the reason, that it was because of the Union , an accusation denied by Lebensburger. d. James Louis James Louis was hired by the Respondent in February 1965, and worked as a truckdriver until his termination on Monday , March 13, 1967. Louis, too, signed a union card on January 31. On March 13, upon arriving at work , Purvis told him that he did not like to do it, but that he was going to have to let him go that morning. When Louis inquired as to the reason , Purvis said that he heard a rumor that Louis was planning to rob the warehouse. In reply to Louis' denial and further inquiry, Purvis told him that , according to the rumor , it was to have happened on Wednesday , then on Thursday, and then on Friday . When pressed further, Purvis told Louis that he could not trust him , that he had heard the rumor and could not take a chance with him. During the conversation Purvis told Louis that he knew that it would be hard to get someone to stay out there and work like he did, but that it was completely out of his hands and that there was nothing else he could do about it . Louis told Purvis that he did not believe his story , and accused Purvis of wanting to get him "because we were getting a union." Purvis replied that he did not want to discuss the Union "because it would only create a problem or trouble with him." Respondent 's Defense to the Layoffs The Respondent asserts that Griffith , Thomas, Combs, and Louis were all permanently laid off for economic reasons pursuant to a company decision The above findings support the complaint allegations 5(a) and (b)(i), (ii), and (iii) There is no credible evidence to support paragraph 5(c) of the complaint, and I shall recommend that it be dismissed DAYTON TOWN & COUNTRY FURN . SHOP 959 made in October to start curtailing operations due to an anticipated decline in business . In support of this position, Weiner and Lebensburger testified that in December 1965, when business was promis- ing, they decided to expand their operations by opening a third store and warehouse in Lima, Ohio, some 75 miles from Dayton. In April 1966, a merchandising manager was hired for the Lima store, which opened in August 1966. A storage warehouse was also leased in August to serve as ad- ditional storage space for the two Dayton stores as well as the Lima store. Based upon a continued ex- pected increase in its volume of business, the Respondent added to its employee complement in the stores , the warehouses , and the service depart- ment . Then , in October, for reasons hereinafter commented upon, Weiner and Lebensburger asser- tedly got together and decided to start on an econo- my program, cutting back operationally wherever possible. Thus, they commenced by immediately eliminating the reupholstering department , letting go a seamstress and an upholster, and replacing a service or credit manager with one requiring a much lower salary. Then, contrary to normal prac- tice, at the annual October furniture market in North Carolina, fearful of a "soft" market and because of a large inventory on hand, Lebensburger returned without committing himself to any new merchandise . In early November, during the height of the selling season , partly due to a newspaper strike precluding normal advertising , the Respon- dent's written sales dropped 40 percent below that anticipated .1° Then, after an increased business at Christmas , and because the Respondent "still had more merchandise than we could possibly ... get rid of," only three representatives were sent to the semiannual furniture show in Chicago , and no com- mitments for the purchase of furniture were made." The January White Elephant sale, which resulted in reducing the high inventory to a normal working inventory, was accompained by additional economies in the Respondent's operation during the month . It having been determined earlier that it was no longer feasible to service the Lima store by running a truck back and forth every Monday between the Dayton warehouse and Lima, the lease to the South Main Street warehouse was canceled and the Respondent moved out on February 1. At some point thereafter, the Respondent turned back one of its leased trucks , leaving it with one leased truck and one truck of its own. At one point of time or another, in addition to the two service em- ployees referred to above, the Respondent severed from its employ four office personnel, three salespeople, and the merchandise manager hired the previous April. In addition to these economies , and crucial to the issue here , the Respondent , assertedly having reduced its inventory and no longer stocking merchandise in Dayton for the Lima store, proceeded in February and March to do away with six unit employees, four warehouse handlers, and two warehouse truckdrivers.12 Specifically, with respect to the alleged dis- criminatees, Lebensburger, who alone was respon- sible for all decisions to lay off, testified that with respect to Griffith, who was discharged on Februa- ry 11, his decision was made after he discussed the matter with Warehouse Superintendent Purvis. Ac- cording to Lebensburger, Griffith had been hired during the peak period in October when the inven- tory was high and they were operating extra warehouses. Thus, when in February the inventory got down necessitating a layoff, because Griffith was "a rather high-priced man," economy dictated that he be one of those laid off.13 With respect to Thomas' layoff on March 4, Lebensburger testified that he discussed the matter of eliminating a truckdriver-helper with Purvis and that he decided on Thomas "only because we based this on economics and what we felt were the best men for the jobs." In considering economy, effi- ciency, and, to a lesser degree , tenure with the Company, factors assertedly used in all cases, Lebensburger testified that with respect to Thomas, who had been there only a few months , "we felt that we could do better by having others, rather than eliminating someone else we could do the Company more good by eliminating him." Lebensburger's sole reason advanced for select- ing Combs for layoff on March 10 was economy, the fact that Combs was, next to Purvis, the highest paid employee in the warehouse. to As to Louis, laid off on March 13, Lebensburger testified that, because of the cutback , it was de- cided to eliminate a truckdriver, and that the deci- sion to lay off Louis was based upon three factors. First, at some point during the summer of 1966, Lebensburger had received an anonymous telephone call telling him that Louis was selling fur- niture off the back of his truck. The following day Lebensburger confronted Louis with the matter. 10 Written sales differ from delivered sales in that the former reflects an order for merchandise to be delivered in the future , while the latter reflects merchandise actually delivered " Normally at this show , buyers are permitted to spend a specified amount of money on merchandise to be delivered during February, March, April . and May. "The Respondent also laid off a handler in January , and another was removed by the FBI in April Thus, during the October -June period, some 17 or 18 employees throughout the Respondent 's operation were per- manently laid off with none having been replaced. " In reply to counsel 's question of why Griffith was selected over someone else , Lebensburger testified that "well, we were trying to do it on what we felt two bases, one, the economics , the other was the most efficient person for the dollar spent, and we felt that we could-we knew that we had to eliminate some and he was a rather high-priced man and we felt that we could eliminate that expense and eliminate the job " " According to Lebensburger, this decision was difficult because Combs had been with the Company for a number of years, he knew the operation, the handling of goods, the delivery and, in effect, was an assistant warehouse manager who took over Purvis' functions in the latter's absence, the only employee considered by Lebensburger as capable of doing so 960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD When Louis denied the accusation, because Louis had been with the Company quite awhile with a clean record, Lebensburger told Louis that he be- lieved him and the matter was dropped. A second "background" factor assertedly adverted to by Lebensburger in laying off Louis involved the problem concerning several instances where Louis failed to turn in C.O.D. moneys collected from customers upon delivery of merchandise. In each case the customer notified the Company upon further billing and in each case, when asked about it, Louis admitted the impropriety and promised to repay the amount involved. Thus, the Company set up a special account card for Louis permitting him to pay back the money. In this regard, the ledger card reflects that the first two such instances oc- curred on November 16 and 17, 1966, involving separate customers and amounts of $98.91 and $74.06. On November 21, Louis paid back $10, but on January 31, 1967, he again was charged with $31, when he failed to turn in a C.O.D. Sub- sequently, on February 28, $40 was deducted from his wages, reducing the balance to $153.97.15 Finally, early in the week of March 11, Leben- sburger and Purvis were informed by Lloyd Mays, a warehouse employee, of a plan to hijack the warehouse involving Louis, as well as himself.'s Lebensburger notified the police of the matter, but before the day it was to take place, Mays told Lebensburger that it was canceled. Mays then in- formed Lebensburger that the hijack plan was on again , and a police stakeout was made, but again was called off when Lebensburger was notified that the plan was postponed. It was then that Leben- sburger assertedly decided to select Louis as the driver to be laid off. Analysis and Conclusions First, apart from the selection of the layoffs in February and March, notwithstanding the fact that there appears to have been some curtailment of the Respondent's operations during the period in- volved, certain facts in the record challenge the motivation for such an economy move as well as the extent to which it was actually effectuated by the Respondent. Thus, while there may well have been a decision by the Respondent at some point to cut back some operations, a question exists as to when this might have come about. Weiner and Lebensburger, the only top management officials involved in this proceeding, testified that in Oc- tober, long before the advent of the Union, they made such a decision, including the decision to reduce the employee complement. Weiner, how- ever, testified that the decision was compelled by the fact that written sales were down, whereas, Lebensburger testified that outside adverse economic factors generally indicated that a future decrease in sales could be expected. The record reflects that shortly after this asserted decision to engage in an economy program, the Respondent hired two new warehouse employees, Griffith in late October, at a high wage, and Thomas in November," and increased the wages of a third, Combs, in January. Indeed, with the exception of one warehouse em- ployee laid off in January, the first indication of an intent to curtail operations in the warehouse did not come about until shortly after the union or- ganizing effort of Griffith on January 31. At no time during the crucial period were the warehouse employees, or any employees for that matter, ap- prised by the Respondent of its intent to effectuate a general and necessary curtailment of operations, and, in each case involving a warehouse layoff, the employee affected was discharged on the spot, in the middle of a weekly payroll period, and with no advanced notice. Furthermore, at the time of the warehouse layoffs, notwithstanding testimony by the Respondent's officials that inventory had been reduced during the January sale, and that no purchases or orders for merchandise had been made at the furniture shows, the company invento- ry records show fairly sizable increases in inventory for the months of March and April. Pertinent to this inconsistency is the credible and uncon- tradicted testimony of truckdriver Thomas to the effect that at the time of his March 4 layoff, he, along with driver Louis, was working overtime, sometimes to 9 and 10 p.m. Bearing still further on the point, the Respondent's own records reveal that every week during the month of March outside in- dependent trucking service was contracted for and performed services for the Respondent. Assuming, arguendo, however, the existence of justification for the Respondent engaging in some layoff activity in the warehouse, the Respondent's motivation in deciding the number and the em- ployee is open to serious question. Thus, between January 31 when the organizational drive com- menced and March 31 when the election was held, the Respondent laid off six warehouse employees, of which number all but one, a part-time employee, had signed union authorization cards.18 A perusal of " The ledger shows that after his layoff, the full balance was taken from vacation pay Louis had coming to him It further shows that on March 28, some 15 days after his discharge , another C O D incident came to the Respondent's attention from a customer, one Betty Browning , involving $33 12, which balance was still unpaid In this regard , however, it must be noted that this last impropriety occurred after his discharge and, therefore, could not have been relied upon by Lebensburger, and further, as to the remaining balance, that there is no showing that Louis was asked to make this good or even confronted with the Browning C 0 D " According to Purvis' testimony , Mays was supposed to be the " inside man " He was to remain after work, unlock the door after Purvis left and lock up again after the merchandise was removed by the two of them " Neither Griffith nor Thomas was told that he was being hired as a tem- porary employee, nor is there credible evidence that such was the case '" The fifth card signor, Jesse Henderson, laid off on February 25, was not named in the complaint as an 8(a)(3) Virgil Gross worked part time for the Respondent as a handler and order-gatherer in the warehouse, and worked full time for another employer He was released in late February or early March DAYTON TOWN & COUNTRY FURN . SHOP 961 the facts concerning Warehouse Supervisor Purvis' conduct at the very outset provides, in my opinion, both company knowledge and a key to employer motivation for the layoff of the alleged discrim- inatees. 19 Thus, within 30 minutes from the moment that Griffith solicited and received the signatures of warehouse employees on union authorization cards, which activity took place in the warehouse, Purvis commenced his unlawful inter- rogation of various employees concerning their union sympathies. Apart from certain direct evidence that Purvis became aware of who was for the Union'20 other evidence exists upon which such an inference is warranted. First, the warehouse is small with but 15 (later 9) employees employed by the Respondent. This, coupled with the fact that Purvis appears to have had at least one friend among those who were not union advocates,21 sup- ports such an inference. Further, with the amount of interrogation among the employees engaged in by Purvis, and the intense antiunion sentiments openly expressed by him, including his threat to Purvis "that he would find out all the men that had signed cards and that he would get rid or fire them," and his threat to Louis that "as long as I am here, there won't be no union come in here," it is inconceivable that Purvis did not become completely aware of where each employee, includ- ing Thomas and Combs, stood on the union question. The threats uttered by Purvis, together with the fact that thereafter all of the five full-time employee layoffs were union members, warrant the inference that union considerations certainly played a motivating part in the decision to select for layoff Griffith, Combs, Thomas, as well as Louis, and I so find.22 With respect to Louis, I am of the opinion that the Respondent's asserted reasons for selecting him for layoff are but pretexts. The rumor of miscon- duct in 1966 pertaining to selling furniture off the back of his truck had long since been dismissed, and the failure of Louis to turn in C.O.D. collec- tions had been condoned by the Respondent, even to the extent of providing him with an opportunity to make payment to the Company on a time basis. As to the third asserted precipitating factor, the hijack rumor that never materalized, there is no corroborating evidence, either by the police or by Lloyd Mays, to support the testimony of Leben- sburger and Purvis.23 There is no evidence that Mays was disciplined for his alleged part in the plan. Finally. the improbability of the whole in- cident is emphasized by the fact that Louis, at no time prior to his layoff, was confronted with the rumor or even given an opportunity to deny it. Based upon the record as a whole , I am of the opinion , and so find , that in selecting David Grif- fith , Andrew Thomas , Zenith Combs , and James Louis for layoff on February 11, and March 4, March 10 , and March 13, 1967, respectively, the Respondent did so because of their union activity, thereby violating Section 8 ( a)(3) and ( I) of the Act. 4. The alleged refusal to bargain a. The appropriate unit The parties agree, and I find, that all warehousemen, truckdrivers, and helpers employed by the Respondent at its warehouse located at 605 South Patterson Boulevard, Dayton, Ohio, but ex- cluding all office clerical employees, salesmen, and all guards, professional employees, and supervisors, as defined in the Act, and all other employees con- stitute a unit appropriate for the purpose of collec- tive bargaining within the meaning of Section 9(b) of the Act. b. The Union's majority As heretofore noted, on January 31, 10 of 15 warehouse and driver employees then in the Respondent's employ signed cards authorizing the Union to represent them as their bargaining agent. All 10 of these cards were turned over to the union representative a day or two later. Although Griffith was terminated, unlawfully so, on February 11, the Union still possessed authorization cards from 9 of the 14 unit employees employed on February 16, the date the Respondent received the Union's letter requesting recognition and bargaining. Ac- cordingly, I find that the Union represented a clear majority of the Respondent's employees in the unit above found appropriate commencing January 31 and continuing through February 16, and, there- fore, that the Union was the majority representative on the date of its bargaining demand upon the Respondent. c. Conclusion It has long been established that an employer commits a Section 8(a)(5) violation when it insists " While Lebensburger alone made the decision as to who was to be laid off, he did so only after discussing each case with Purvis , who, in turn, car- ried out Lebensburger 's directives 10 Such evidence as it pertains to the alleged discriminatees herein, in- cludes Purvis' question of Combs, as to whether Griffith approached him with a union card, and Louis ' admission to Purvis that he was a union ad- herent 21 In this regard, on March 9, Combs overheard a conversation in Purvis' office during which Jessie Leigh , a warehouse employee who had not signed with the Union, said that he understood that if the Union won the election the employees who did not vote for the Union would be fired Pur- vis replied by telling Leigh to sit tight , to let him handle it This occurred the day before Comhs was laid off and 4 days before Louis was terminated 22 1 discredit the testimony of Lebensburger and Purvis to the extent that they denied having knowledge of union activity of any of the dis- criminatees, or that such activity was involved in the decision to lay off 'As Mays was subsequently removed from the Respondents premises by the FBI, his testimony undoubtedly would have been of little value in any event 354-126 O-LT - 73 - pt. 1 - 62 962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD upon a Board election as proof of a Union's majori- ty claim where its insistence is based upon a rejec- tion of the principle of collective bargaining or by a desire to gain time within which to undermine the union. Whether an employer who insists upon an election to determine the union's majority status is motivated by a good-faith doubt as to that majority or by an intention to destroy such majority can be determined only by looking at all of the facts relat- ing to the case, including any other unlawful con- duct by the employer."' In finding here that the Respondent did not pos- sess a good-faith doubt as to the Union's majority, but rather, in refusing to recognize the Union without an election, was motivated by a desire to gain time in which to dissipate the Union's majori- ty, I rely in part upon the fact that: (1) at no time did the Respondent in any way attempt to reply to the Union's letter of February 14, requesting bar- gaining; (2) the Respondent, at the time it received the Union's request, was completely aware of union activity among its warehouse employees and had al- ready unlawfully discharged the principal union ad- herent; and (3) thereafter, between the date of the Union's demand and the holding of the election, the Respondent terminated the employment of three other union members. I find no merit to the position asserted by the Respondent with respect to the Section 8(a)(5) al- legation. In this regard, the Respondent contends that it never refused to bargain, that, before it had an opportunity to respond to the Union's demand, the petition had already been filed. As it is well established that the filing of a representation peti- tion does not, in itself, suspend an employer's obligation to bargain, absent evidence of a good- faith doubt, this argument must fail. See Galloway Manufacturing Corporation, 136 NLRB 405, and C. J. Glasgow Co., 148 NLRB 98. Further, in asserting that it had good reason to doubt the Union's majority the Respondent relies upon the fact that the Union failed to offer proof of its majority status. In view of the Respondent's failure to communicate in any way with the Union, including making a request that the Union prove its majority by cards, coupled with the unlawful conduct before and after the Union's bargaining request, I find such a posi- tion to be completely untenable.25 Accordingly, on the record as a whole, I find that the Respondent's refusal to recognize the Union was unlawfully motivated and that such refusal was violative of Section 8(a)(5) and (1) of the Act. IV. THE OBJECTIONS TO THE ELECTION As heretofore set forth, the petitioning union filed timely objections to conduct affecting the P1 Joy Silk Mills, Inc, 85 NLRB 1263, entd 185 F 2d 732 (C A D C ), cert denied 341 U S 914 See also Irving Air Chute Company, Inc , 149 NLRB 627 " See Harrisburg Building Units Co , Inc , 116 NLRB 334 at 348 election, two of which the Regional Director referred for hearing Thus, referred to the Trial Ex- aminer were objections asserting that (1) after the petition was filed, the Employer discharged Thomas, Louis, and Combs because they had authorized the Union to represent them in collec- tive bargaining; and (2) that on or about February 17, 1967, the Employer, through its supervisors, coercively questioned its employees concerning their activity on behalf of the petitioner. Having found that the Employer, through its su- pervisors, at no time after February 7, 1967, which date precedes the filing of the petition herein, en- gaged in the unlawful questioning of its employees, I shall recommend that objection (2), above, be dismissed.26 Having found, however, that the Em- ployer unlawfully discharged Thomas, Louis, and Combs in early March, between the filing of the petition and the holding of the election, conduct which a fortiori interferes with the exercise of a free and untrammelled choice in an election, I find merit to objection (I), and, accordingly, shall recommend that the representation election hereto- fore held on March 31, 1967, in 9-RC-7152 be set aside. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above , occurring in connection with the Respondent 's operations described in section I, above, have a close , intimate , and substantial rela- tionship 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. VI. THE REMEDY It having been found that the Respondent has en- gaged in certain unfair labor practices , it is recom- mended that it cease and desist therefrom and that it take certain affirmative action which is necessary to effectuate the policies of the Act. It having been found that the Respondent engaged in acts of inter- ference , coercion, and restraint , thereby violating Section 8 ( a)( I) of the Act, it is recommended that the Respondent cease and desist therefrom. It having been found that the Respondent dis- criminatorily discharged David Griffith, on Febru- ary 11, 1967, Andrew Thomas on March 4, 1967, Zenith Combs on March 10, 1967, and James Louis on March 13 , 1967, thereby violating Section 8(a)(3) and (1) of the Act, it is recommended that the Respondent offer the above-named individuals immediate and full reinstatement to their former or ' It is well established law that the Board will not consider objections which are based upon conduct occurring prior to the date of the filing of the petition Goodyear Tire and Rubber Company, 138 NLRB 453 DAYTON TOWN & COUNTRY FURN. SHOP substantially equivalent positions, without prejudice to their rights or privileges to which they are enti- tled, and to make them whole for any loss of earnings they may have suffered as a result of the discrimination against them, by making payment to them of a sum of money equal to the amount they would have earned from the date of the discrimina- tion to the date of the offer of reinstatement, less net earnings during said periods to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, and shall include the payment of interest at the rate of 6 percent to be computed in the manner set forth by the Board in Isis Plumbing & Heating Co., 138 NLRB 716.27 In this regard, it is further recom- mended that the Respondent preserve and, upon request, make available to the Board or its agents for examination or copying all payroll records and reports, timecards, and all other records necessary to compute the amount of backpay. It having been found that the Respondent refused to bargain in good faith with the Union and en- gaged in unfair labor practices designed to destroy the Union's majority, thereby violating Section 8(a)(5) of the Act, it is recommended that the Respondent bargain upon request with the Union, embodying in a signed agreement any understand- ing reached. Upon the basis of the above findings of fact and upon the entire record in this case, I make the fol- lowing: CONCLUSIONS OF LAW 1. Dayton Town and Country Furniture Shop, Inc., is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Sales Drivers, Sales & Service Local Union 176, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Hel- pers of America, is a labor organization within the meaning of Section 2(5) of the Act 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaran- teed by Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(I) of the Act. 4. By discriminating in regard to the hire and tenure of employment of David Griffith, Andrew Thomas, Zenith Combs, and James Louis, thereby discouraging membership in, and activity on behalf of, the above-named labor organization, the Respondent has engaged in and is engaging in un- fair labor practices within the meaning of Section 8(a)(3) of the Act. 5. All warehousemen, truckdrivers, and helpers employed by the Respondent at its warehouse located at 605 South Patterson Boulevard, Dayton, Ohio, but excluding office clerical employees, 963 salesmen , and all guards, professional employees, and supervisors, as defined in the Act, and all other employees, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 6. At all times material since January 31, 1967, the Union has been the exclusive representative of all the employees in the aforesaid appropriate unit for the purpose of collective bargaining with respect to rates of pay, wages, hours of employ- ment, or other terms or conditions of employment. 7. By refusing on February 16, 1967, and thereafter, to bargain collectively with the Union, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, it is recommended that Dayton Town and Country Furniture Shop, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating its employees concerning their union activities and threatening its employees with discharge for engaging in union activities. (b) Discouraging membership in Sales Drivers, Sales & Service Local Union 176, affiliated with the International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, or in any labor organization, by discharging or refus- ing to reinstate any of its employees, or in any like manner discriminating in regard to hire and tenure of employment, or any term or condition of em- ployment in violation of Section 8(a)(3) of the Act. (c) In any like or similar manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form labor organizations, to join or assist Sales Drivers, Sales & Service Local Union 176, affiliated with the International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, or any other labor organization, to bargain collectively through representatives of their own choosing and to engage in concerted activities for the purpose of collective bargaining and other mutual aid or pro- tection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. (d) Refusing to bargain collectively with Sales 27 See Reserve Supply Corporaleon of L I , Inc v N L R B , 317 F 2d 785 (C A 2) 964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Drivers, Sales & Service Local Union 176, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, as the exclusive bargaining representative of its employees in the following appropriate unit: All warehousemen, truckdrivers, and helpers employed by the Employer at its warehouse located at 605 South Patterson Boulevard, Dayton, Ohio, but excluding all office clerical employees, salesmen and all guards , profes- sional employees, and supervisors, as defined in the Act, and all other employees. 2. Take the following affirmative action, which will effectuate the policies of the Act: (a) Offer David Griffith, Zenith Combs, Andrew Thomas, and James Louis immediate and full rein- statement to their former or substantially equivalent positions, without prejudice to any rights and privileges to which they are entitled, and make them whole in the manner and according to the methods set forth above in the section entitled "The Remedy." (b) 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. (c) Upon request, bargain collectively with Sales Drivers, Sales & Service Local Union 176, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, as the exclusive bargaining representative of the Respondent's employees in the unit found ap- propriate with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and embody in a signed agreement any understanding reached. (d) Post at conspicuous places at its Dayton, Ohio, warehouse copies of the attached notice marked "Appendix."28 Copies of said notice, on forms provided by the Regional Director for Region 9, after being duly signed by Respondent's authorized representative, shall be posted by it im- mediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in con- spicuous 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 altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 9, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.29 IT IS FURTHER RECOMMENDED that paragraph 5(c) of the complaint be dismissed. IT IS FURTHER RECOMMENDED that Petitioner's Objection (2) be dismissed. IT IS FURTHER ORDERED that Case 9-RC-7152 be severed and referred to the Regional Director for Region 9 with the recommendation that the elec- tion heretofore held in this proceeding be set aside. 2" In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner " in the notice In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Ap- peals Enforcing an Order" shall be substituted for the words " a Decision and Order " 2" In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read " Notify said Regional Director, in writing, within 10 days from the date of this Order , what steps Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the Na- tional Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT interrogate our employees concerning their union activities or threaten them with discharge for engaging in union ac- tivities. WE WILL NOT discourage membership in Sales Drivers, Sales & Service Local Union 176, affiliated with the International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or in any labor organization, by discharging or refus- ing to reinstate any of our employees, or in any like manner discriminate in regard to hire and tenure of employment, or any term or condi- tion of employment in violation of Section 8(a)(3) of the Act. WE WILL NOT refuse to bargain collectively with Sales Drivers, Sales & Service Local Union 176, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive bargaining representative of our em- ployees in the following appropriate unit: All warehousemen, truckdrivers, and hel- pers employed by us at our warehouse at 605 South Patterson Boulevard, Dayton, Ohio, but excluding all office clerical em- ployees, salesmen and all guards , profes- sional employees, and supervisors, as defined in the Act, and all other em- ployees. WE WILL NOT in any like or similar manner interfere with, restrain, or coerce our em- ployees in the exercise of their right to self-or- ganization , to form labor organizations, to join or assist Sales Drivers, Sales & Service Local Union 176, affiliated with the International DAYTON TOWN & COUNTRY FURN. SHOP Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, to bargain collec- tively through representatives of their own choosing and to engage in concerted activities for the purpose of collective bargaining and other mutual aid and protection, or to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor or- ganization as a condition of employment. WE HAVE offered David Griffith, Zenith Combs, Andrew Thomas, and James Louis im- mediate and full reinstatement to their former or substantially equivalent positions without prejudice to any rights and privileges to which they were entitled and they have declined to accept said reinstatement offer. WE WILL make them whole for any loss of pay they may have suffered by reason of our discrimination against them prior to the dates on which they were offered reinstatement. WE WILL, upon request, bargain collectively with Sales Drivers, Sales & Service Local Union 176, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive bargaining representative of our em- ployees in the unit found appropriate with respect to rates of pay, wages, hours of em- ployment, and other terms and conditions of 965 employment , and will embody in a signed agreement any understanding reached. All our employees are free to become or remain, or refrain from becoming or remaining, members of Sales Drivers , Sales & Service Local Union 176, af- filiated with the International Brotherhood of Teamsters , Chauffeurs , Warehousemen and Hel- pers of America , or of any other labor organization, except to the extent that this right may be affected by an agreement in conformity with Section 8(a)(3) of the National Labor Relations Act, as amended. DAYTON TOWN AND COUNTRY FURNITURE SHOP, INC. (Employer) Dated By (Representative ) (Title) This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or com- pliance with its provisions may be communicated directly to the Board's Office, 2407 Federal Of- fice Building, 550 Main Street, Cincinnati, Ohio 45202, Telephone 684-3683.