Rogers Furniture Sales, Inc.

68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Rogers Furniture Sales, Inc. and Willie Gandy and Willie Keith. Cases 7-CA-10057 and 7-CA-10111 November 8, 1973 DECISION AND ORDER By MEMBERS JENKINS, KENNEDY, AND PENELLO On June 29, 1973, Administrative Law Judge Samuel Ross issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and has decided to affirm the rulings, findings,' and conclu- sions of the Administrative Law Judge and to adopt his recommended Order. 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 Administrative Law Judge and hereby orders that Respondent, Rogers Furniture Sales, Inc., Detroit, Michigan, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. 1 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. DECISION STATEMENT OF THE CASE SAMUEL Ross, Administrative Law Judge: This case was tried in Detroit, Michigan, on May 15 and 16, 1973, on charges filed by Willie Gandy on January 10, 1973, and amended on February 1, 1973, and by Willie Keith on January 31, 1973, and on a consolidated complaint which issued on March 7, 1973. The complaint alleges that the above-named Company violated Section 8(a)(1) and (3) of the Act by laying off and/or firing Gandy and Keith because of their union or protected concerted activities, and by engaging in various other acts of restraint and coercion of employees in the exercise of rights guaranteed by Section 7 of the Act. Rogers Furniture Sales, Inc. (Respondent), filed an answer which denies the substantive allegations of the complaint and the commission of unfair labor practices. Upon the entire record, including my observation of the demeanor of the witnesses, I make the following: FINDINGS OF FACT I. COMMERCE The Respondent is a Michigan corporation which is engaged in the retail sale of furniture and related products at a store located at 2616 East Grand Boulevard, Detroit, Michigan. In its last fiscal year, a representative period, the Respondent sold and delivered furniture and other products valued in excess of $500,000, more than $50,000 of which was purchased and shipped directly to its store in Detroit from places outside the State of Michigan. The Respondent accordingly admits and I find that it is engaged in commerce and in operations affecting com- merce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED It is undisputed and I find that Local 243, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Ind. (herein called the Union), is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. A Short Description of the Respondent's Personnel, Facilities, and Operations The Respondent's president and principal stockholder is Theodore Spitz, and his son, Marty Spitz, admittedly is a warehouse supervisor and agent of the Respondent. Deliveries of the Respondent's furniture to its customers is performed by the George Williams Cartage Company, which at the times material herein was owned and operated by George Williams.' Williams also worked for the Respondent as a salesman, and since January 1, 1973, he admittedly has been its general manager. One of the issues in this case is whether Williams was a supervisor and/or agent of the Respondent before January 1, 1973, when certain unfair labor practices attributed to his conduct occurred. It is undisputed that on July 28 and August 2, 1972, Williams hired Keith and Gandy, the two alleged discriminatees, to work for the Respondent, and that he was authorized to do so by President Theodore Spitz. I accordingly find that at all times material herein, Williams was a supervisor and agent of the Respondent within the meaning of Section 2(11) and (13) of the Act. As noted above, the Respondent sells furniture at retail from a store located at 2616 East Grand Boulevard, Detroit, Michigan. Samples of the furniture which the 1 The cartage company is now operated by Williams' son. 207 NLRB No. 7 ROGERS FURNITURE SALES 69 Respondent sells is displayed on the street and second floors at that address and additional inventory is stored in the basement and on the third floor of that building. In about June 1972, the Respondent acquired an additional building located across the street from its store to augment the inadequate storage space in its store building, and the Respondent thereafter moved some of its furniture inventory to this new warehouse space. At the times material herein the Respondent had several employees whose duties consisted of moving furniture from its storage area to its loading platform for delivery by the cartage company to the customers who purchased it. It also had a couple of employees who moved furniture about in the display areas of the store, and who brought furniture to the display areas from the storage areas and vice versa. The Respondent also regularly employed a shipping and receiving clerk and a furniture refinisher. B. The Organization of the Respondent's Employees by the Union The Respondent's warehouse employees regularly work 7 hours a day on Monday through Friday, and 5 hours on Saturday. However, they preferred to work their 40-hour week in a 5-day week of 8 hours per day. Accordingly, in September 1972,2 Bernard R. Bridges, one of Respondent's warehouse employees, had a conversation with Warehouse Supervisor Marty Spitz, in which Bridges protested that it "wasn't right" to require the warehouse employees "to work every Saturday for regular pay." Spitz replied that "that was the way it was going to be, and, if we didn't want to work on Saturdays, there were plenty of people outside, you know, in the streets that would work on Saturdays." Bridges then reported at a meeting to the other warehouse employees that he had talked to Spitz "about coming in on Saturdays," and that Spitz had talked to him "like a dog." Bridges said that he had called the meeting to find out if the employees "wanted to get a union so they could get better working conditions here." All five of the employees who attended this meeting3 authorized Bridges to "talk to the union guy and see about getting some cards so we could file and get the union in." Bridges accordingly contacted the Union, obtained a supply of union authori- zation cards by mail, brought them to the Respondent's premises on September 27, and they were signed the same day by Bridges, Chris Baker, Rush, Gandy, and Keith. Later that day, during the lunch hour, Bridges, Baker, and Gandy took the signed cards down to the union hall.4 On October 10, the Union filed a petition with the Board to be certified as the collective-bargaining representative of the Respondent's warehouse employees, including the shipping and receiving clerk and the refinisher.5 On October 31, the Union received-a majority of the votes cast by the employees in the election conducted by the Board,6 2 All dates hereinafter refer to 1972, unless otherwise noted. 3 Bernard Bridges, Chris Baker, Hank Rush, Wilkie Gandy, and Willie Keith. 4 The findings above are based on the uncontroverted and credited testimony of Bridges and Keith 5 Case 7-RC-1 1430. 6 The tally of ballots (G.C Exh 4) disclosed that there were 7 eligible and on November 8, the Union was certified as the exclusive representative of the said employees. The complaint alleges, inter alia, that Marty Spitz' statement to Bridges which triggered the latter's com- mencement of union organization "threatened employees with discharge if they continued to voice complaints in a concerted fashion concerning wages, hours, and other terms or conditions of employment, including overtime," and that the Respondent thereby interfered with, re- strained, and coerced employees in the exercise of rights guaranteed in Section 7 of the Act in violation of Section 8(a)(1).7 I perceive no such threat in Spitz' statement. The Respondent clearly was under no compulsion, legal or otherwise, to grant Bridges' request for a change in his hours of employment, and it clearly had the right to inform Bridges that if he did not like the terms of his employment, there were plenty of replacements available who would be willing to work the hours to which Bridges objected. In my view, that is all Spitz told Bridges, and his statement by no stretch of the imagination can be regarded as a threat to discharge him for voicing his complaint. I therefore regard this allegation of the complaint as unsupported by the record, and I will recommend its dismissal. C. The Respondent's Efforts to Defeat the Union at the Board Election 1. President Theodore Spitz' speech In about mid-October, before the Board election which resulted in the certification of the Union, President Theodore Spitz convened a meeting of all the warehouse employees in the appropriate unit. Spitz told the employees that he had received a certified letter from the Union requesting recognition, and that he didn't want a union to represent them. Spitz said "that he was aware of who was responsible for . . . filing these [union] cards," and that he "was sure or almost sure that Mr. Willie Weissman [the shipping and receiving clerk] and Mr. Odell Baker [the refinisher ] didn't have anything to do with it." Spitz further said that he apparently had made some mistakes in his dealings with his employees for he had been under the impression that he and they had been "one big happy family." Spitz told the employees that they had Blue Cross insurance for which the Respondent paid, and that "after a year," they would receive "profit sharing from the company." Spitz reminded the employees that he had always done favors for them, that he had loaned money to Rush when the latter's wife'had a baby, and to Chris Baker "for his car." Spitz further said that "it wouldn't be like that any more," and that he would have "to look at us differently."8 Based on the foregoing record, the complaint alleges that the Respondent violated Section 8(a)(1) of the Act: (a) by conveying to employees the impression that their union activities had been subjected to surveillance (para. 13(c); employees of whom 4 voted for the Union and 3 against. r See para. 13(a) of the complaint 9 The findings above are based on the uncontroverted and credited testimony of Bridges and Keith. Although Spitz was a witness for the Respondent, he gave no testimony regarding this meeting with the employees. 70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and (b) by promising employees "the creation of a profit sharing plan" to induce them to withdraw their support from the Union (para. 13(b)). In respect to these allegations, Spitz' statement to the employees at this meeting that he was aware who was responsible for the union cards, and that he was sure that Weissman and Odell Baker had nothing to do with it, clearly conveyed an impression that the employees' union activities had been subjected to surveillance by the Respondent. I accordingly find that the Respondent thereby interfered with, restrained, and coerced employees in the exercise of rights guaranteed in Section 7 of the Act and violated Section 8(axl). According to the uncontroverted testimony of employees Bridges and Keith, they had no prior knowledge that the Respondent either had a profit-sharing plan for its employees or paid for Blue Cross insurance for them. There is no testimony that such benefits existed prior to Spitz' mid-October speech to the employees. Viewed in the light of the antiunion purpose of the speech, it is fairly evident that Spitz in effect was promising the employees these benefits to induce them to withdraw their support from the Union. This clearly transgressed the Act, and I find that the Respondent thereby further engaged in unfair labor practices within the meaning of Section 8(a)(1).9 2. The inducement of Gandy to vote against the Union As previously noted, Willie Gandy was hired by Williams on August 2, and started to work for the Respondent on that date as a warehouse employee and in the store setting up displays of furniture. Unlike the Respondent's other warehouse employees including Keith whose hourly rate of pay was $3, Gandy's rate was $2.50 an hour. Soon after he was hired, Gandy complained to Williams about his disparate rate of pay and asked for a raise. Williams admittedly told-Gandy that he would see what he "could do" and that he would "talk to Ted Spitz about it," but no raise for Gandy resulted. In mid-October, shortly after Spitz' speech, Warehouse employee Hank Rush and Refinisher Odell Baker came over to Gandy in the coffee room and told him that they had "talked it over with Mr. Spitz," that Gandy "had been asking for a raise," and that "if I went along with them and voted against the Union, I would ,get the same thing [pay rate] as the other guys were getting.,, 10 Gandy agreed "to go along with them." The following Friday when Gandy received his paycheck, he observed that his rate of pay had not been increased, and he complained to Odell Baker that 9 N L P _R v. Exchange Parts Company, 375 U.S. 405,409-410. 10 As previously noted, Rush was one of, the five employees of Respondent who had signed union authorization cards on September 27, but according to Gandy's uncontroverted testimony which I credit, Rush soon thereafter "backed out" and changed his mind about representation by the Union 11 The foregoing findings are based on the testimony of Gandy and Keith whom I credit in these regards . Williams denied that he ever gave Gandy any cash either directly or through Odell Baker while Gandy was employed by Respondent. Theodore Spitz denied having any knowledge of any money paid to Gandy other than his regular wages, and he also denied that he ever authorized anybody to make any such payments. Odell Baker also denied that he ever gave any money to Gandy, or that he was given any money by Williams to give to Gandy. I do not credit the testimony of he "didn't -get the money that they had promised me." Baker replied "that he would take care of it," "he went some place," and then came back and said, "I would get it." On the ensuing Monday, George Williams gave Gandy $20 in cash, and Gandy "showed it to Willie Keith," and "explained it to him." Later that day, President Ted Spitz asked Gandy, "Did you get it?" Gandy replied, "Yes." Spitz then asked, "Well, is everything okay?" Gandy answered, "Yes." Spitz said, "Are you still going along with us?" Gandy replied, "Yes." One week later, Williams came out of the finishing room where Odell Baker was working and told Gandy in Keith's presence that Baker wanted to see him. Gandy went into the finishing room and Baker handed him another $20 in cash. Baker's action was observed by Keith. Gandy then walked back to Keith and showed him the money he had just received. The following week, Gandy was given another $20 in cash by Williams."" In the light of my credibility findings above, it is quite obvious and I find that the Respondent further violated Section 8(a)(1) of the Act by making these sub rosa cash payments to Gandy in lieu of a wage increase to dissuade him from voting for the Union. D. The Respondent's Postelection Efforts to Undermine Support of the Union As previously noted, notwithstanding the Respondent's unfair labor practices to defeat the Union at the Board election on October 31, the Union won by a vote of 4 to 3. On the day following the election at 9 a.m., the Respondent terminated the employment of Gandy and Keith, two of the unit employees, and has not since reemployed them.12 In mid-December, George Williams told. Warehouse employee Bernard Bridges that he had purchased the warehouse from Respondent and that Spitz would not have anything further to do with it. Williams said that he didn't want a union, and that if the warehouse employees signed the petition which Williams held, he would,give them "a dollar raise" and would "pay us all four dollars [an hour ]." The petition (G.C. Exh. 2) stated as follows: To Whom It May Concern: We the undersigned, have agreed to withdraw our petition to have the union act as our bargaining agent. Bridges , at first refused to sign, and he-told Williams that the employees had gone into the Union "as a group," and if they were going to withdraw from it, it should also be done as a group and not singly. Williams then left, but he returned a short time later with Warehouse employee Christopher Baker, and he showed Bridges that the petition had been signed by Christopher Baker,' Hank Rush, and by Williams, Spitz or Baker in these regards for the following reasons Both Williams and Spitz gave testimony which was contrary to the affidavits which they had signed for a Board agent, and they also gave some testimony which in my view was patently implausible. Williams, in addition, was a witness who sought to evade direct answers to questions which he apparently regarded as inimical to the Respondent's interest. Baker's testimony appeared to me to be that of an employee seeking to curry favor with his boss. For these reasons, as well as demeanor, I regard the testimony of all three of them as unworthy of credence in these respects. 12 As previously noted, the complaint alleges that these employees were terminated to discourage union membership and that the Respondent thereby violated Section 8(aX3) and (I) of the Act. That issue will be considered and determined infra. ROGERS FURNITURE SALES 71 Odell Baker, the refinisher. Williams also told Bridges that he would "bring Willie Gandy back to work," and that "we would get the four dollars as soon as Willie Gandy got back to work." Christopher Baker also told Bridges "to go ahead and sign it because it sounded like a good idea." Bridges then signed the petition.13 The complaint in this case (Para. 13(e) and (f)) alleges that Williams' solicitation and promise of a wage increase to induce employees to sign the petition constitutes interference, restraint, and coer- cion of employees in the exercise of Section 7 rights, and that the Respondent thereby violated Section 8(a)(l) of the Act. As found above, Williams was a supervisor and agent of the Respondent. There is no evidence that Williams in fact bought the Respondent's warehouse from Spitz. To the contrary, the Respondent's payroll records in evidence clearly disclose that the warehouse employees are still employed by it. Under these circumstances, the Respondent was and is responsible for Williams' solicita- tion and promise of a wage increase to induce employees to sign the petition. That conduct clearly transgressed the proscriptions of Section 8(a)(1) of the Act, and the Respondent thereby further violated it. E. The Termination of Gandy's and Keith's Employment As previously noted, the Respondent hired Gandy and Keith to work as warehouse employees and to move and arrange displays in its store on August 2 and July 28, respectively.14 On September 27, both Gandy and Keith signed union authorization cards. In about mid-October, President Spitz, in his talk to the employees, indicated that he knew who was responsible for the advent of the Union and who had nothing to do with it. On October 31, notwithstanding the Respondent's unfair labor practices, the Union won the Board conducted election. The follow- ing day, about 9 a.m., President Spitz convened a meeting of all the employees and told them that because of the construction work then in progress, business had slowed down, and he would have to lay off two men. Spitz further said that he had wanted to do this before the election and "couldn't," but now that the election was over, he was laying off Gandy and Keith, the two employees with the least seniority. Keith asked Spitz whether he and Gandy could "work out the [rest of the] day or do we go home 13 The findings above are based on the testimony of Bridges which I credit Henry Rush, a witness who was subpenaed by the General Counsel, similarly testified that he signed the petition to withdraw from the Union at the request of Williams, and upon the latter's promise that if he did so, he would get a raise of $1 an hour. Williams, a witness for the Respondent, gave no testimony on direct examination regarding the petition. On cross- examination, however, Williams professed a complete lack of knowledge of its origin and of who prepared it or "typed it up," and he testified only that it was shown to him by Rush. I regard Williams' testimony as generally unreliable and as worthy of little or no credence. Assuming that his testimony in this regard might be considered as a denial of the testimony of Bridges and Rush, I place no credence in it. 14 Keith had previously worked for the Respondent in a like capacity from September Ito November 5, 1971, but had quit his job. ' is The findings above are based on the credited testimony of Bridges and Keith. The Respondent's; payroll records in evidence disclose that Gandy and Keith were paid for only 1 hour of work on November 1. According to Spitz, he did not tell Gandy and Keith to leave when they did, and "they punched out on their own " Spitz further testified that it was his intention and he "assumed" that they would finish out the Respondent's workweek now." Spitz replied, that they should "leave right now." Accordingly, on November 1 about 9 a.m., Keith and Gandy punched out and left the Respondent's premises.15 Since their layoff, the Respondent admittedly has utilized additional warehouse help during the Christmas rush season, but Keith has never been offered reemploy- ment, and Gandy, although assertedly offered reinstate- ment, has not been reemployed.16 Viewed in the light of the Respondent's opposition to the Union and the unfair labor practices in which the Respondent engaged to defeat the Union at the Board election, the sudden layoff of Gandy and Keith immediate- ly after the election, in mid-week, after they had worked 1 hour on November 1, and the failure to thereafter offer reemployment to Keith notwithstanding the admitted need for and use of additional help in the ensuing Christmas season, a persuasive prima facie case is presented that the layoff was motivated, not by the economic considerations asserted by Spitz, but by antiunion considerations as alleged in the complaint 17 The Respondent contends that its layoff of Gandy and Keith was motivated by economic and not antiunion considerations. In this regard, President Spitz testified that as a consequence of road construction which "started in late summer" on the service roadway on East Grand Boulevard directly in front of Respondent's store, access to the store became difficult and business started "to slow down." Spitz further testified that about October 1, when he was "notified that our people in the warehouse were interested in joining a union," he called his attorney, Leonard Meldman, and told him "about the construction and that I wanted to lay people off because business was starting to slow up and receiving of goods was starting to slow down." However, Meldman advised Spitz "don't do it because it wouldn't look good and it might have a reflection that we were laying them off for union activity." Accordingly, Spitz testified that'he waited until after the election before he laid off Gandy and Keith, "who had the least seniority." I place no, credence in the Respondent's testimony regarding the alleged economic necessity for the layoff of Gandy and Keith. I base this conclusion on the following considerations: 1. According to Spitz, the layoff was necessary because there was less work to be performed as a result of the which ended on November 2. 1 place no credence whatsoever in this denial or testimony, for when Spitz was asked why he did not then, either tell Gandy and Keith that they could finish out the week , or wait until the end of the week before he announced their layoff, his response, which I regard as patently implausible, was that "it never occurred to me." is The so-called offers of reemployment to Gandy will be considered, infra. 17 Spitz first testified that he would "gladly" recall Gandy and Keith "if business picked up." This was contrary to his affidavit to the Board agent which stated, "I am not disposed to recall Willie Keith because his work was unsatisfactory." When this contradiction was called to Spitz' attention, he admitted that he "had no intention of recalling" Keith, and he characterized Keith as "a clock watcher" who "strung out his work." I place no credence in Spitz' assessment of Keith's performance in the light of Keith's reemployment by the Respondent in July 1972 after his first employment for it in 1971 . See fn. 14 supra. In view of the contradiction between Spitz' testimony and affidavit noted above, I also place no credence m_ his testimony that he would "gladly" -recall Gandy and Keith "if business picked up-- 72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reduction in the Respondent's purchases and sales of furniture caused by the road construction in front of the store. However, the Respondent's summary of its sales (Resp. Exh. 5) discloses that its sales for the month of October 1972 ($124,119.46), at the conclusion of which Gandy and Keith were terminated, were practically the same as they were for the month of July ($123,924.03) at the end of which Keith and Gandy were hired. Further- more, the Respondent's October 1972 sales also were practically the same as they were in October 1971 ($124,512.97) before the road construction assertedly had affected it. Moreover, the Respondent's sales in November and December 1972 substantially exceeded what they were when Keith and Gandy were hired, and they compared favorably with the sales for the comparable period, a year earlier. It is thus obvious that no credence can be accorded to the assertion that reduced sales required the layoff of Gandy and Keith. 2. We come then to Spitz' testimony that the termina- tion of Gandy and Keith was required by a reduction in the quantity of furniture which the Respondent purchased and received. In this regard Spitz testified that "the construction on the service road . . . curtailed business. So we curtailed our buying naturally." In addition, according to the testimony of Marianne Perse, the Respondent's "full charge bookkeeper," in June 1972, the Company "started buying better [more expensive] merchandise." However, the Respondent offered no purchase records to support Spitz' testimony, and none, although such admittedly were available in "inventory control," to show that the number of pieces of furniture which the Respondent received had diminished. Moreover, no explanation was offered for the failure to produce these records. I infer therefrom that these records, if produced, would not support Spitz' oral testimony regarding the necessity for a reduction in personnel based on diminished purchases.18 In sum, the sales records produced by the Respondent fail to establish that any diminution in sales had occurred which required a layoff of employees, and to the contrary they showed that the Respondent's sales at the time Keith and Gandy were terminated equalled those when they were hired. Moreover, the Respondent produced no records to show that their termination was required because of a reduction in the quantity of purchases. I infer therefrom that the assertion of reduced sales and purchases as the reason for the termination of these employees is a pretext to obscure the real reason for their peremptory dismissal.19 The real reason for the termination of Keith and Gandy is fairly evident. Spitz first expressed to his attorney a desire to lay off employees when he learned that they wanted to be represented by the Union. On advice of counsel, he did not then carry out his intention because it would have been too manifest an unfair labor practice if he terminated employees immediately after receipt of knowl- edge of their interest in the Union. Instead, he embarked on a campaign to defeat the Union at the Board election by conveying to employees the impression that their union activities had been subjected to surveillance by him, by promising employees that he would create a profit-sharing plan and pay for their Blue Cross insurance, and by granting a sub rosa wage rate increase to Gandy to induce him to vote against the Union. When, notwithstanding these unfair labor practices, the employees voted for the Union by a margin of 4 to 3, Spitz promptly and peremptorily, without prior notice, in mid-week and mid- morning, terminated the employment of Gandy and Keith, two of the union proponents, thereby reducing his prounion employees from a majority to a minority status. Thereafter, notwithstanding the admitted need for and use of additional help during the Christmas season, neither of the laid-off employees was rehired. Moreover, as found above, after the Board election, the Respondent, through its agent Williams, solicited employees by the promise of a wage rate increase to sign a petition disavowing their interest in representation by the Union. In the light of the Respondent's unfair labor practices found above, as well as the timing and peremptory nature of the layoff, it is clear and I find that the termination of Gandy and Keith was an integral part of the Respondent's campaign to avoid dealing with the Union as the representative of its employees, and that the Respondent thereby discouraged union membership and engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. F. The So-Called Offers of Reinstatement to Gandy As previously noted, although the Respondent utilized additional warehouse employees during the Christmas season after Gandy and Keith were laid off , it admittedly did not offer reemployment to Keith . The Respondent contends, however, that it offered reemployment to Gandy on several occasions, but that he declined the offers. As hereinafter explicated, I do not regard these so -called offers of reemployment to Gandy as valid offers of reinstatement. As found above, in mid-December, Respondent's super- visor and agent, Williams, solicited employees to sign a petition renouncing their designation of the Union as their bargaining agent. Williams promised the employees a raise of $1 an hour if they signed the petition, and he told warehouse employee Bridges that he was bringing Gandy "back to work," and that the raise would become effective "as soon as Willie Gandy got back to work." Thereafter, although the Respondent knew Gandy's address, it did not write to offer him reinstatement. In late December, Bridges, Chris Baker, and the other employees pressed Williams as to when they would get their promised raise, and Williams told them that "Willie Gandy was the thing that was holding it up," and that "as soon as he signed [the petition ] we would get it." Williams then told Chris Baker and the other warehouse employees to get in touch with Gandy. Baker accordingly, visited Gandy at his home and told him that Williams wanted Gandy to sign the petition to get "the union out" which all the employees but Gandy had signed, and to come back to work . The next day, Gandy 1s International Union, UAW v. N.L.R. B., 459 F.2d 1329 (C.A.D.C., replace these employees reflects only a continued effort to conceal the real 1972); 2 Wigmore, Evidence, § 285 (3d ed. 1940). 19 1 am also persuaded that the Respondent's subsequent failure to reason for their termination. ROGERS FURNITURE SALES 73 went to the Respondent's store, and was told by Williams that he had been trying unsuccessfully to get in touch with Gandy for several weeks. Gandy asked Williams, "For what?" Williams replied that "the guys had decided to vote the union out," and had "all signed this petition." Gandy asked to see it, and Williams went to get it. He returned in a short while, told Gandy that it was locked up and that the girl who had the key was not working that day, and he asked Gandy "to come back the next day." Gandy returned the next day as requested, but Williams "still didn't have the paper to sign," and Gandy left.20 On January 10, 1973, Gandy came to the Board's Regional Office and filed the original charge in this case. Gandy told Miss Carrie: Thompson, the Board agent, that the Respondent had requested him to sign a petition to revoke his designation of the Union as his bargaining agent, and he asked her "was it okay for me to sign it." In response, Gandy was advised that he "didn't have to sign a paper to get my job back." Accordingly, on or about January 25, Gandy went to the Respondent's store and met with Williams in the office. Williams pulled out the petition repudiating the Union as the employees' bargaining representative, and said, "if we all agreed to sign it, we could get rid of the Union."' Williams put the paper down and put a pen alongside it, and he told Gandy "that after I signed the paper that he'd agree to give the guys four dollars an hour."' Gandy did not sign the petition, and Williams asked him if he was working any place. Gandy said, "No." Williams asked Gandy, "how I was surviving," and Gandy replied that he was getting $51 a week in unemployment compensation. Williams said, "Well, that's a long ways from four dollars an hour," and Gandy agreed. Finally, Gandy said that "he didn't want to sign the paper right then," and that he would think about it and let Williams know. Williams 'replied that he would "be there until nine o'clock." Gandy then left and did not return that day.2t On January 31, 1973, Gandy filed an amended charge with the Board in which he alleged the Respondent's refusal to reemploy him on or about January 23, 1973, as an additional unfair labor practice. A copy of the amended charge was served on the Respondent on February 2, 1973. Thereafter, on February 8, 1973, the Respondent sent Gandy a registered letter requesting that he report to work on Monday, February 12, 1973, at 7:30 a.m.22 Gandy received the Respondent's letter on Saturday, February 10, 1973, and on the following Monday, instead of reporting to the Respondent, he called Miss Thompson, the Board agent, for advice. She told him to telephone Williams 20 The findings in the preceding paragraph are based on Gandy's testimony which I credit. -Williams' version of these events was that despite his repeated attempts to contact Gandy in December and to reemploy him when the Respondent was busy, he was unable to reach Gandy, and the latter did not come to the store until January As previously noted (see fn. 11 and 13, supra), I regard Williams' testimony as generally unreliable. I do not credit him in these respects for the following additional reasons: The Respondent at all times knew Gandy's address, and its mail to Gandy was received by him. (See G.C Exh. 6 and Resp. Exh. 4) Yet Williams made no effort to write to him in December when, according to Williams, Respondent assertedly needed his services and wanted to reemploy him because he was a good worker . Under the circumstances, I regard Williams' testimony that he repeatedly but unsuccessfully tried to contact Gandy to reemploy him in December as unworthy of credence. immediately. Accordingly, at 12 noon, Gandy called Williams and the latter instructed Gandy "to call him back" the following morning at 9 a.m. Gandy telephoned Williams the following morning as instructed, and was told Williams was not in. Gandy called again later and Williams told him "he'd think about it," and for Gandy to call him the next day (Wednesday, February 14). Instead of calling on February 14, Gandy went down to the store that next morning at 7:30 a.m., and he showed the Respondent's letter to-Odell Baker and Hank Rush. They put him to work. Gandy worked in the warehouse until 9 a.m. when he was called over to the store by Spitz and Williams and "waited and waited." Finally, Spitz came over to Gandy and told him that "they couldn' t use me no more.,, 23 As found above on Gandy's credited testimony, the Respondent's so-called offers of reinstatement to Gandy in December 1972 and January 1973, were conditioned upon his signing the petition to repudiate the Union as his collective-bargaining representative. Clearly, the Respon- dent could not lawfully so condition employment by it, and by so doing, it clearly engaged in discrimination in regard to hire to discourage membership in a labor organization, and thus violated the express proscriptions of Section 8(a)(3) of the Act. Moreover, by so conditioning the reemployment of Gandy, the Respondent also thereby restrained and coerced employees in the exercise of Section 7 rights, and violated Section 8(a)(1) of the Act. This leaves for consideration the Respondent's final failure to permit Gandy to continue to work on and after February 14, 1973, after he started to work pursuant to the Respondent's letter offering him reemployment. In respect to this issue, Williams admitted that Gandy "came in for work," and his first explanation for not permitting him to continue was: We didn't need nobody at that time. Business was slow. In February things were slow at the end.... We didn't need nobody [sic] then. We don't need nobody [sic] now. Williams' response dearly suggests, and I infer therefrom, that the Respondent's reemployment offer to Gandy was not made in good faith to get him back to work, but rather with the hope that he would not respond and thus terminate the Respondent's backpay liability to him. Williams' testimony above prompted the Respondent's counsel to lead and suggest to Williams that his refusal to permit Gandy to continue working might have been motivated by Gandy's tardy response to Williams' letter. 21 The findings , above are based on Gandy's credited testimony. Williams testified that Gandy came to the store in January and inquired whether he had to sign the petition in order to go back to work . According to Williams, he replied that the petition "had nothing to do with his returning to work," and that Gandy then said that he would think about it and let Williams know. I do not credit Williams' version of this conversation, for in addition to my lack of regard for the reliability of his testimony generally, I consider it quite unplausible that if one had been made, Gandy would have refused an unconditional offer of reemployment after he expressly went to the store to get his job back without having to sign the petition. 22 Resp. Exh. 4. 23 The findings above are based on Gandy's credited testimony which was not controverted by either Spitz, Williams, or any other witness. 74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Williams then testified that Gandy wasn't permitted to continue to work: Because after we wrote him the letter and he was so long coming in, we didn't need him. I figuredhe didn't want to work and there was no use for me to keep begginghim to work if he don't [sic] want to work. So I just did without him. I mean, we tried to get him to work before and he didn't come in. I place no credence in Williams' testimony which suggests that Gandy didn't want to work, or that he tried to get Gandy to work but the latter refused. Moreover, I reject as without merit the contention that Gandy may have forfeited his right to reinstatement by his alleged delay in reporting to work. I note in this regard that when Gandy received the reemployment offer, he delayed responding thereto only a few hours, just long enough to consult the Board agent who was working on this case for advice, and he then promptly called Williams. The latter's stalling responses to Gandy's telephone calls, and the Respon- dent's subsequent failure to permit Gandy to continue to work on and after February 14, 1973, clearly indicate and I find that the letter of February 8 to Gandy was not a valid, good faith, offer of reemployment. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation 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 the Respondent has engaged in certain unfair labor practices, I will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent terminated the employment of Willie Keith and Willie Gandy and thereafter failed and refused to reemploy them because they engaged in union and concerted activities protected by the. Act, I will recommend that the Respondent, be ordered to offer them immediate reinstatement to their former positions, or, if they no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings they may have suffered by reason of the discrimination -against them by the payment to them of a sum of money equal to the amount they normally would have earned from the date of their termination to the date of reinstatement, less their net earnings during said period, with backpay computed on a quarterlybasis in the manner established by the Board.24 I will also recommend that the Respondent preserve and, upon request, make available to the Board or its agents, for examination and copying,' all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze and determine the amounts of backpay due under the terms of this recommended remedy. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent, Rogers Furniture Sales, Inc.; is an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 243, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Ind., is a labor organization within the meaning of Section 2(5) of the Act. - 3. By terminating the employment of Willie Keith and Willie- Gandy because they engaged in union and concert- ed activities for mutual aid or protection guaranteed to employees by the Act, and by thereafter conditioning the reemployment of Willie Gandy upon his renunciation of the above-named labor organization as his collective- bargaining representative, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 4. By the foregoing conduct, by conveying to employ- ees the impression that their union activities were subject to surveillance, and by promising and grantmg employees wage increases and other benefits, to induce them to withdraw their support from and adherence to the Union, the Respondent has interfered with, restrained and coerced its employees in the exercise of their rights guaranteed by Section 7 of the Act, and has engaged in and is engaging in unfair labor practices within the meaning of Section 8(axl) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within , the meaning of Section 2(6) and (7) of the Act. Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, I hereby issue the following recommended: ORDER 25 Respondent, Rogers, Furniture Sales, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in and activities on behalf of Local 243, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Ind., or of any other labor, organization, by, discriminating in regard to hire or tenure of employment or any term or condition of employment. 24 F. W. Woolworth Company, 90 NLRB 289; backpay shall include the conclusions, and recommended Order herein shall, as provided in sec. payment of interest at the rate of 6 percent per annum to be computed in 102.48 of the Rules and Regulations , automatically become the findings, the manner set forth in Isis Plumbing & Hearing Co., 138 NLRB 716. conclusions, decision, and order of the Board, and all objections thereto 25 In the event no exceptions are filed as provided by sec. 102.46 of the shall be deemed waived for all purposes. Rules and Regulations of the National Labor Relations Board, the findings, ROGERS FURNITURE SALES 75 (b) Conveying to employees by conduct or statements the impression that their union activities are subject to surveillance. (c) Promising or granting employees increased wages or other benefits, or in any other manner, soliciting them to withdraw from membership in, or support of, the above- named or any other union. (d) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights to self- organization, to form labor organizations, to join or assist Local 243, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, Ind., or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from engaging in such activities, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8(a)(3) of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act. (a) Offer Willie Keith and Willie Gandy immediate and full reinstatement to their former jobs or, if they no longer exist, to substantially equivalent positions, without preju- dice to their seniority or other rights and privileges enjoyed, and make them whole for any loss of pay they may have suffered as a result of the discrimination against them in the manner provided in the section of this Decision entitled "The Remedy." (b) Post at its office and warehouse in Detroit, Michigan, copies of the notice marked "Appendix."26 Copies of said notice, on forms provided by the Regional Director for Region 7, after being duly signed by Respondent, shall be posted by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 7, in writing, within 20 days from the date of the receipt of this Decision, what steps have been taken to comply herewith. I FURTHER ORDER that the complaint herein be dismissed insofar as it alleges violations of the Act other than those found above. 26 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the 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." APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial at which all sides had the opportunity to present their evidence, the National Labor Relations Board has found that we violated the National Labor Relations Act, and has ordered us to post this notice and we intend to carry out the Order of the Board. The Act gives all employees these rights: To engage in self-organization; To form, join or help unions; To bargain collectively through a representa- tive of their own choosing; To act together for collective bargaining or other mutual aid or protection; and To refrain from any and all these things. WE WILL NOT do anything that interferes with these rights. More specifically, WE WILL NOT discourage union activity or member- ship in Local 243, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Ind., or any other labor organization by discriminating against you if you choose to engage in union activity or join any union. WE WILL NOT engage in conduct or make statements which convey the impression that we are subjecting your union activities to surveillance. WE WILL NOT promise or grant you increased wages or other benefits, or in any other manner solicit you to withdraw from membership in, or support, of, the above named or any other union. Since it was decided that we violated the Act by terminating the employment of Willie Keith and Willie Gandy, WE WILL offer them reinstatement to their former jobs, and WE WILL reimburse them for the losses they suffered as a result of our discrimination against them. WE WILL respect your rights to self-organization, to form, join or assist any labor organization, or to bargain collectively in respect to terms or conditions of employment through Local 243, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Ind., or any representative of your choice, or to refrain from such activity, and WE WILL NOT interfere with, restrain or coerce our employees in the exercise of these rights. You and all our employees are free to become members of any labor organization, or to refrain from doing so. ROGERS FURNITURE SALES, INC. (Employer) Dated By (Representative) (Title) 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 concern- ing this notice or compliance with its provisions may be directed to the Board's Office, 500 Book Building, 1249 Washington Boulevard, Detroit, Michigan 48226, Tele- phone 313-226-3200.