Value City Furniture Of Springdale, Inc.

VALUE CITY FURNITURE - Value City Furniture of Springdale, Inc. and Retail Store Employees Union, Local, No. 1099, -Retail Clerks International Association, AFL-CIO. Cases 9-CA-8986 and 9-RC-10848 January 19, 1975 DECISION, ORDER, AND DIRECTION By CHAIRMAN MURPHY AND MEMBERS JENKINS AND PENELLO On September 23, 1975, Administrative Law Judge Melvin J. Welles issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the Charging Party filed an answering 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 au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions 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 Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Value City Furniture of Springdale, Inc., Springdale, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. DIRECTION It is hereby directed that, as part of the investiga- tion to ascertain a representative for the purpose of collective bargaining among certain employees em- ployed by Value City Furniture of Springdale, Inc., in the unit set forth in the Stipulation for Certifica- tion Upon Consent Election in Case 9-RC-10848, the Regional Director for Region 9 shall, pursuant to the Board's Rules and Regulations , at a time and place to be set by him, open and count the ballots of 1 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the' Board's established policy not to over- rule 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 (1950), enfd 188 F 2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. 455 Doris Taylor, Marcus Estes, Patricia Pacula, Corbin Pennington, Rex Yasbeck, Pat Canelli, and Ken McClure and, thereafter, prepare and cause to be served on the parties a revised tally of ballots, includ- ing therein the count of said ballots, upon the basis of which he shall issue the appropriate certification. DECISION STATEMENT OF THE CASE MELVIN J. WELLES, Administrative Law Judge: Case 9-CA-8986 is before me pursuant to charges filed on De- cember 2, 1974, and amended on January 20 and 27, 1975, and a complaint issued on January 30, 1975, alleging that Respondent violated Section 8(a)(1) and (3) of the Nation- al Labor Relations Act, as amended. In Case 9-RC-10848, an election was conducted on December 4, 1974, pursuant to a Stipulation for Certification Upon Consent Election, which resulted in three votes for the Petitioner and five against it, with nine challenged ballots,. On February 10, 1975, the Regional Director for Region 9 determined that the eligibility of seven of the challenged employees was dependent on whether or not their discharges were in viola- tion of Section 8(a)(3), and that the eligibility of the other two employees whose ballots were challenged presented substantial and material issues of fact best resolved by a hearing. Accordingly, the Regional Director ordered that Case 9-RC-10840 be consolidated with Case 9-CA-8986. A hearing was held before me in Cincinnati, Ohio, on April 1 and 2, 1975. Briefs were thereafter submitted by the Re- spondent, the General Counsel, and, in Case 9-CA-8986, the Petitioner. Upon the entire record in the case,' including my obser- vation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT AND THE LABOR ORGANIZATION INVOLVED Respondent is an Ohio corporation engaged in the retail sale and distribution of furniture. Its store located at 100 Kemper Road, Springdale, Ohio, a suburb of Cincinnati, is the only location involved in this proceeding. During the 12 months prior to the issuance of the complaint, Respondent's gross sales exceeded $500,000 in value. Dur- ing the same period, Respondent received products valued in excess of $50,000 directly from points outside the State of Ohio. I find, as Respondent admits, that it is an employ- er engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The Union is a labor organization with- in the meaning of Section 2(5) of the Act. 'Respondent's unopposed motion to correct the transcript is hereby granted - 222 NLRB No. 75 456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IL THE UNFAIR LABOR PRACTICES A. The Issues The questions in the unfair labor practice aspect of the case are (1) whether Respondent violated Section 8(a)(1) of the Act by the conduct of Store Manager Mazza in alleged- ly (a) offering and paying money to employees in connec- tion with an election among the Company's warehouse em- ployees to influence their vote, (b) interrogating employees concerning their union sympathies and activities, (c) stat- ing to employees that the Company would hire additional employees to defeat the Union, (d) hiring or transferring employees into the bargaining unit to defeat the Union, (e) telling an employee that the Company was aware of the Union's organizational activity and that the Company did not need that type of activity, (f) telling an employee that the Company would have to let employees go because of the Union's organizational efforts, and (g) soliciting an em- ployee to engage in surveillance of other employees' union activities; and (2) whether Respondent violated Section 8(a)(3) and (1) of the Act by discriminatorily discharging seven employees. As noted above, the representation case involves the eli- gibility of nine employees, with the determination of seven of them wholly dependent on whether or not they are found to have been discriminatorily discharged, and that of the other two on whether they are employees in the unit and eligible to vote on the agreed eligibility date. B. Facts and Discussion Respondent in this case, as noted above, is one of a chain of retail furniture stores, with its headquarters at Co- lumbus, Ohio, and is located at Springdale, Ohio, a suburb of Cincinnati. Another Value City retail store is located at Covington, Kentucky, also a Cincinnati suburb. Starting sometime early in October, a number of employees in the Springdale store, Yasbeck, Canelh, Estes, and Doris Tay- lor, started talking about unionizing the store. One of them, Canelli, contacted the union, and, on October 23, a meet- ing was held, attended by most of the Company's sales personnel. At this meeting, all of the alleged discriminatees signed union authorization cards. The record is silent as to whether any other employees signed cards. The next day, October 24, Mazza interrogated employees Horton, Pacu- la, Doris Taylor, and McClure about their union activities, and asked Pacula to report back to him any talk of union activities she heard on the selling floor. Mazza admitted having engaged in these interrogations, and having asked Pacula to report back to him any talk of union activities she heard, and Respondent in its brief concedes that Re- spondent thereby violated Section 8(a)(1) of the Act, al- though having denied any such violations in its answer to the complaint. I find, accordingly, that Respondent violat- ed Section 8(a)(1) by the aforesaid conduct of Store Man- ager Mazza. The remaining allegations of 8(a)(1) violations cannot be resolved without determining whether to credit the affir- mative testimony of various General Counsel witnesses or the denials of Mazza. Because some of these conflicts are intertwined with the 8(a)(3) allegations, I will consider them after discussing the latter. On or about November 1,2 Respondent discharged or laid off six salesmen: Patricia Pacula, Rex Yasbeck, Pat Canelli, Marcus Estes, Doris Taylor, and Corbin Penning- ton. Pennington was reinstated about November 13, and Kenneth McClure was laid off a few days later following the discovery of an error with respect to Pennington that he pointed out to the Company. Most of the alleged dis- criminatees were told by Mazza that they were laid off for economic reasons, according both to their own testimony and that of Mazza. Thus, Pacula was told that "business was slow," and that Mazza had to "cut down the payroll." Mazza also told her that because she was not working full- time and was not the sole provider in her family, he was laying her off, but that he would hire her back when busi- ness picked up. Yasbeck was told "We can no longer carry you. You have let us down for the last couple of months. Maybe you can come back and work for us again in the future." Pennington was told that he was discharged be- cause Mazza had received a call from Columbus that any- body behind on their draws had to be dismissed. Canelli was told that "things were a bit slow," so he was going to be laid off. According to Canelli, he asked Mazza if it was "anything pertaining to my draw or maybe doing my work wrong?" and Mazza said no, that perhaps in a few weeks he could call Canelli back. Two of the alleged discriminatees, Doris Taylor and Marcus Estes, were, according to their testimony, in effect told by Mazza that their discharges resulted from their union activities. Estes testified that Mazza told him that he was being discharged, stating also that he was "`aware of the Union activities I had been involved in, that the Com- pany didn't need it." Taylor was told, according to her, when she asked why she was' being let go, "Well, Doris, you know with this Union thing coming up I just can't have it. You know I've got to lay you and a few other people off." Mazza denied having made any reference whatsoever to the Union in connection with informing either Estes or Doris Taylor of their discharges. He testi- fied that he told Estes he was being let go because of "the lack of business, lack of work, and of course, he had been in the hole for two out of the three months, or two months anyhow." He testified that he told Taylor "about the con- ditions of the business, which she knew, the rest of them knew, that business was down, she had been in the hole. And I had been ordered according to company policy, which I was carrying out at this time, I had to lay her off." Other undisputed facts bearing on the discrimination is- sue are: (1) Rosemary Taylor (Mazza's sister) was hired as a salesperson on October 30, 1974. She quit her employ- ment on December 22. (2) David Hall, who had voted in an election held among the warehouse employees on Octo- ber 14, 1974, was told by Mazza, in the latter part of Octo- ber, to spend more time on the sales floor. (3) The Compa- ny, toward the end of October, 1974, placed an advertisement in the Cincinnati Post, which ran for 5 days, 2 Doris Taylor was actually laid off on November 3, because she was not at work on November 1, when Respondent attempted to reach her to inform her of her layoff. VALUE CITY FURNITURE seeking experienced salespeople for its Covington and Springdale stores. (4) The Company did not hire any new salespeople at its Springdale store following the layoff or discharge of the alleged discriminatees. (5) Sometime after the layoffs, the Company's warehouse department gradu- ally reduced, by attrition, from about 16 employees to about 5 employees. Its office clerical staff went from 6 to 4. (6) The Company's financial statements for the Springdale store show a loss for its fiscal year ending July 31, 1974, of some $360,000, and a further loss of $82,000 for the months of August and September, 1974. The General Counsel contends that Respondent dis- charged or laid off 3 the alleged discriminatees in order to discourage union activity among its employees. Apart from the statements attributed to Mazza by Estes and Doris Taylor, which are in dispute, the General Counsel relies upon the fact that all the laid-off employees had attended a union meeting and signed cards for the Union; that most of them were interrogated by Store Manager Mazza shortly thereafter, on October 24; that Mazza also asked one of them, Pacula, to inform him concerning the union activi- ties of other salespeople; and that the layoffs followed hard on the heels of the union activities and the interrogations by Mazza. In addition, the General Counsel relies upon the fact that the discharges were precipitate, with no advance notice whatsoever, that Respondent's asserted policy-dis- cussed at length below-of discharging employees who did not meet their "draw" in two of the three preceding months had never been disclosed to the employees, and in attack- ing the asserted economic bases both for laying off any sales personnel, and for selecting those salespeople who were laid off. Respondent, on the other hand, contends that the deter- mination to lay off was made prior to any union activity in the store, and therefore necessarily prior to any knowledge thereof by it, and that both the determination to cut the sales staff and the selection of employees to be cut were economically motivated, the former because of the Spring- dale store's poor earnings record in both the preceding fis- cal year and the months of August and September just prior to the decision to lay off, and the latter based on the aforementioned policy of laying off employees who did not meet their draw in two of the three preceding months. As I understand the testimony of Respondent's witnesses, the latter policy is actually unrelated to the poor economic pic- ture that existed at the Springdale store at the time, and is a policy that would normally apply without regard to a store's earnings, or lack thereof. The uncontroverted and admitted facts brought out by the General Counsel's witnesses do present a clear prima facie case of discrimination with respect to the seven sales- people laid off. They all did attend the union meeting on October 23, and sign union authorization cards, almost 'all were interrogated by Mazza, and Mazza did ask Patricia 3 Respondent at one point in its brief contends that the employees were laid off rather than discharged, and a number of the employees did testify that Mazza told them they were laid off. At another point in its brief, however, Respondent states that it "never intended to recall or rehire any of those employees who were laid off." In any event, whether the employees were "laid off" or "discharged" in any technical sense is of no consequence; the question here is why their employment ended. 457 Pacula to report on the union activities of the others, on the day after the union meeting. And less than a week later, with no prior notice or warning of any sort, six of the seven .were laid off. Additionally, the Company hired Rosemary Taylor as a salesperson on October 30, 2 days before the mass layoff, and Respondent advertised for "experienced salespeople" for the Springdale (and Covington) store in the days surrounding the layoff. The resolution of this question thus turns on a careful examination of Respondent's asserted motivation for the layoffs, to de- termine whether the evidence presented by Respondent suffices to rebut the General Counsel's prima facie case. The documentary evidence shows that Respondent lost about $360,000 at the Springdale store for the fiscal year ending July 31, 1974, and that it lost an additional $80,000 at that store in August and September of that year. Ac- cording to Respondent's witnesses, Company President Schottenstein (who did not testify at the hearing) did not receive the financial statement for the Springdale store un- til about October 14. According to Vice President Miller, Schottenstein told Miller that the financial statements were the worst he had ever seen, that selling costs were too high and that the sales force would have to be reduced. Schot- tenstein and Miller then decided, according to Miller, to reduce the sales force by laying off employees in accor- dance with company policy of laying off salesmen who had not met their draw in two of the three preceding months. The sales personnel work on a 5 percent commission. At the beginning of each month they receive a "draw," the amount of which is set by the employee himself (apparent- ly based on his own expectancy, based on experience, of the amount he is likely to earn in commissions). At the end of the month, an employee who did not earn as much as his draw was considered to be "in the hole." A list of the employees' sales, draw, and commission fig- ures for the months of August through October 1974, in- cluding their dates of hire, and monthly and cumulative totals, with net totals with respect to their commissions and draw, follows: Employee E/0/D Aug. Sept . Oct. Totals Yasbeck 4 / 10/74 30741 11234 3392 45367 600 750 600 1950 1537 562 170 2269 937 (188) (430) 319 Pacula 7/7/74 4464 3319 5940 13723 300 150 318 768 223 166 297 686 (77) 16 (21) (82) Pennington 10/10172 20477 12221 16875 49573 600 750 600 1950 1024 611 844 2479 424 (139 ) 244 529 Estes 8/20/74 4758 9199 4166 18123 150 750 600 1500 238 460 208 906 88 (290) (392) (594) McClure 8/17/74 5924 13162 6827 25913 210 750 600 1560 296 658 341 1295 86 (92) (259) (265) 458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Employee D. Taylor Canelli White Brinkman Horton Frost Braun E/O/D Aug . _ Sept. Oct. Totals 8 /20/74 3870 4467 4235 12572 80 400 300 780 193 223 211 627 113 (177 ) ( 89) (153) 8/25/74 4019 15028 11564 30611 150 750 600 1500 200 751 578 1529 50 1 (22) 29 2/6/74 23146 10681 12583 46410 600 750 600 1950 1157 534 629 2320 557 (216) 29 370 9/23/74 4218 7619 11837 150 500 650 210 380 590 60 120 (60) 4/ 11/74 27077 13033 14051 54161 450 750 600 1800 1353 652 - 702 2707 9 3 98 1002 907 9/18/73 18149 15480 11069 44698 300 750 600 1650 907 774 553 2234 607 24 47 584 6/5/73 4534 3908 3775 12217 226 195 188 5/10/74 6715 4135 401 11251 335 207 20 5/ 19/74 20294 6333 4268 30895 600 1014 316 213 414 4/25/73 35497 24627 22372 82496 300 750 600 1650 1774 1231 1118 4123 14 44 481 518 2473 pany could not take, or should not have taken, any action in an attempt to change the situation, to reduce losses and produce profits. But the discharge, or layoff, of seven sales- persons seems to me a rather odd way to have accom- plished the Company's avowed purpose. Virtually all of the selling salaries figures of 5.6 percent and 6.1 percent are accounted for by the 5 percent commission paid to them. Therefore, at most .6 percent and 1.1 percent of this ex- pense could be saved by cutting all sales personnel, and, of course, a proportionately lesser amount with respect to each person kept on the payroll. That is, cutting 40 percent of the sales personnel (as was ultimately done) could save only 40 percent of .6 percent or 1.1 percent, or a total of .24 percent or .44 percent. And even these figures assume that the full amount over the 5 percent commission would be "savable," that no portion thereof is attributable to built- in, continuing expenses that would not be saved. These maximum savings that could be achieved by cut- ting any of the sales personnel represent so minuscule an amount in relation to the Company's losses at the Spring- dale store that the sales force would appear to be the last rather than the first place to look in determining how to reduce "losses," cut operating expenses, and turn the store around to profitability. Indeed, from the Company's stand- point, more rather than less sales personnel would seem a more practical solution to the problem, for more salespeo- ple would presumably generate more sales, and the 5 per- cent commission paid on sales would not be any different, in relation to the volume of sales, whether divided among a few or a great many salespeople. I recognize the limitations inherent in this "suggestion," for spreading the potential sales over many more salesmen might be self-defeating in that all sales personnel might be reduced to a level of sales that was too low to keep any of them, and thus represent a suicidal policy. But not, however, in terms of "sales costs," which is Respondent's argument. I recognize also that any retail company would prefer good salesmen to poor sales- men even if the latter were not really costing the Company anything, so long as they were paid on a straight commis- sion basis, for a staff of poor salesmen might be missing out on potential customers, or, indeed, driving them away. It is in this sense that the figures relating to, any particular salesmen can be significant, and I turn to the Company's asserted basis for selecting employees for layoff. In my opinion, the fallacy of using, an employee's draw as the benchmark against which to determine his worth to the Company is even more readily apparent than utilizing cutting the sales force to reduce expenses and cut losses. A single example will demonstrate this fallacy. Thus, suppose employee A, with a draw of $1000, sells $19,900 worth of furniture in a particular month. He earns $995 in commis- sions, and is "in the hole" to the amount of $5. Employee B, with a draw of $500, sells $10,500 worth of furniture that same month. He earns $525 in commissions, $25 more than his draw, and is not "in the hole." As between the two, the Company's asserted policy would require A, assuming the above figures prevailed in 2 out of 3 consecutive months, to be laid off, and B to be retained. Yet manifestly A has been not only more productive by a close to ,2 to 1 ratio, but also has earned more for the Company, in! approximately the same ratio. Indeed, the Company's asserted policy would The documentary evidence also shows that selling "sala- ries" (basically the 5-percent commission, and apparently including some fringe payments of one sort of another, the record is not clear) amounted to 5.6 percent of total operat- mg expenses at the Springdale store for the fiscal year end- ing July 31, 1974, to 5 percent for August, 1974, and to 6.1 percent for September, 1974. The foregoing figures, that is, the losses incurred at the Springdale store in fiscal 1974, and continuing into August and September of its new fiscal year, the selling cost of 5.6 percent and 6.1 percent in fiscal 1974 and September 1974, respectively, and the excess of draw over commission in 2 out of 3 months prior to November 1 in the case of all the alleged discriminatees (except Pennington), are all urged by Respondent as having justified both the determination to economize by laying off salespeople, and the determina- tion of which ones were to be laid off. I do not take issue with the fact that the losses at the Springdale store occurred, nor do I suggest that the Com- VALUE CITY FURNITURE 459 require A to be laid off and B retained if the foregoing figures prevailed in 2 of the 3 preceding months even if in the third month A sold $30,000 worth of furniture, and therefore exceeded his draw by $500 that month, and B earned`the same amount as in the other 2 months. I cannot believe that ,such a self-destructive policy could exist, or did exist at Respondent's stores. True, it is not my function to determine what sort of policy a company should have. If it chooses to maintain a policy that makes no economic sense, it is not for me to say that it cannot do so. But when, as here, the policy is intrin- sically unsound; when,- as here, it is a policy that- has never been communicated to any of the sales personnel;4 and when, as here, the invocation of the policy was presumably dictated by the Springdale store's poor earnings, although the Company was ridding itself of six salesmen, some of whom were much more productive than others who were not laid off, I am constrained to conclude that the asserted policy never existed. The sales, draw, and commission figures set forth above show that in some of the A and B hypothetical cases set forth above was not wide of the mark. Yasbeck, with over $45,000 in total sales for August through October, was laid off, even though for the 3 months his commission exceeded his draw by $317. Only three of the salesmen retained earned more in the 3 month period. Canelli, who did not start working until August 25, sold more than $30,000 worth of furniture in a little more than 2 months, and was $29 ahead of his draw (indeed, he was behind his draw in only I month). Three of the retained employees, two of whom had been with the Company for-a much longer time, earned substantially less than Canelli. Pennington, even though presumably laid off by mistake, had total sales fig- ures exceeded by only two of the retained employees. Re- spondent in its brief attributes the losses at Springdale "at least partly ... to unproductive salespeople ...." As- suming this to be so, although there is nothing offered to support it, the relationship between the draw and the com- mission is by itself wholly unrelated to "productivity." Aside from the logic, or lack thereof, in Respondent's basis for reducing expenses and for selecting salespersons to be laid off, two occurrences that just cannot be,squared with Respondent's asserted economic basis for its conduct demonstrate the true picture. First, on October 30, 1 day before the bulk of the layoffs occurred, and about 2 weeks after Mazza, according to his testimony and that of other company officials, was instructed to implement the compa- ny "policy" of laying off employees behind in their draw for 2 out 3 months, Mazza hired Rosemary Taylor (his sister) as a salesperson at Springdale. Second, for about 5 days prior to November 4 (the record does not show whether these were consecutive days), the Company adver- tised for experienced' sales personnel for both the Spring- dale and Covington stores. Placing an advertisement for new employees and hiring a new employee just prior to a 4 Since the amount of the draw does not determine an employee' s earn- ings, any employee could, by making his draw quite low, always avoid layoff or discharge, and only a fool would draw an amount much larger than his judgment or past experience indicated he was likely to earn in commissions, with such a policy in effect, and known to be so. layoff already scheduled, and presumably dictated by eco- nomic reasons, does not make sense. Respondent attempts to explain away the placing of the advertisement, obviously recognizing its damaging nature to Respondent's position, by testimony ("undisputed") to the effect that the real purpose of the advertisement was to secure personnel for Covington, and Springdale was placed in it because Mazza, who was managing both stores at the time, was primarily- located at Springdale, and because Kentucky papers do not permit listing an Ohio address in the classified section. Mazza claimed that by attracting in- dividuals with the Cincinnati address, he might he able to convince them to work at the Covington store. (Respon- dent makes no attempt to explain the hiring of Rosemary Taylor on October 30.) This is but one of a number of instances where Respondent's witnesses gave testimonial "explanations"-to contradict or explain away objective facts that militated against its position. Thus, the fact that. Mazza admittedly interrogated a number of the discriminatees on October 24, and sought to have Pacula report to him about the union activities of the other salespersons, followed by the mass layoff on November 1, strongly suggests an invidious mo- tive for the layoff, based on its timing, and on Mazza's knowledge of the union activities at the time. Respondent adduced testimony, to blunt the effect of this knowledge and the timing, that the decision to layoff was made about a week before October 24. And Mazza "explained" his fail- ure to act promptly, when President Schottenstein presum= ably told him to follow the policy of laying off salespersons behind in their draws immediately, by claiming that he wanted to see the full month's figures for October before making the determination. Although, as pointed out above, the cost of sales, with respect to selling salaries, exceeded the absolute minimum of the 5 percent commission by only .6 percent in fiscal 1974, not at all in August 1974, and'by only 1.1 percent in September, company official Miller ex- plained that even these figures are "almost unheard of." And, although armed with documents to support its figures in various respects, Respondent adduced no d ocuments or figures to support Miller's assertion that other stores had a smaller figure than those at Springdale. Nor did Respon- dent adduce any documentary evidence, or any witnesses other than its own officials, to attest to the existence of the policy with respect to layoff of employees "in the hole." Surely, if such a policy existed; some of the older employ- ees would have known of it. And, as pointed out before, since the draw itself is within the control of the employee, the policy could not have been known to the employee. In sum, Respondent's asserted ground for determining to cut the sales force by some 40 percent as well as its asserted basis for selecting the personnel to be cut, does not stand up under scrutiny, and bolster, rather than re- fute, the General Counsel's prima facie case of discrimina- tion. For the many reasons set forth above, I do not credit the testimony of Mazza, or other company officials, to the effect that the decision to cut the sales force was, made about October 17. Although the finding of a discriminatory motivation here is largely based on circumstantial, rather than direct, evidence, that is true of most cases of this na- ture. Given the objective facts that Mazza interrogated 460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD four of the employees on October 24, and on that same date asked one of them to report on the union activities of the others (in itself a strange thing to do if Mazza had really already been instructed to lay off many of the sales- persons); that thereafter a new employee was hired and new employees were explicitly sought in a newspaper ad- vertisement, and considering that cutting down on the number of salesmen, particularly with the selection method ostensibly utilized, would seem counterproductive with re- spect to the bleak economic situation at the Springdale store, the only explanation left is the contemporaneous union activities of the sales personnel. Unlike Sherlock Holmes, I am not basing this conclusion on the bromide that where all likely explanations fail, look for the most unlikely one, for it must be the true explanation. For, as noted extensively above, the General Counsel has estab- lished a clear prima facie case of discrimination, which re- mains (rather than emerges) as the only explanation for the discharges once Respondent's explanations have failed to pass muster. Although I am finding a violation here, I do not rely upon the testimony of Doris Taylor and Estes to the effect that they were told their union activities caused their dis- charges. First of all, it is hardly likely that Mazza would have told two of the employees this while telling all the others that their layoffs were economic in nature, caused by the poor earnings picture at Springdale, and by their failure to meet their draw. And since the entire picture evidences a Respondent seeking to hide its discriminatory motivation under the cloak of legitimate business reasons, that Mazza would stray from the litany of economic rea- sons would be even less likely. I do not rely at all on any testimony of James Oppenheimer concerning various con- versations he had with Mazza. Oppenheimer was clearly shown, as is now admitted by the General Counsel, to have been a supervisor, and nothing in his testimony adds any- thing to the violations found herein. I do find, crediting the testimony of employee Horton, confirmed by that of em- ployee Pennington, and discrediting Mazza's denial, that Mazza threatened to "flood' the store with salespeople in order to defeat the Union. I have taken cognizance, in dis- crediting 'Mazza in most respects, of Respondent's argu- ment that Mazza, having subsequently been discharged by the Company, would not be likely to falsify his testimony. The many objective facts adverted to above, however, as well as the demeanor of the witnesses involved, impel me to conclude that Mazza was not a credible witness. The cases of Pennington and McClure do not present any special problem. Having concluded that the layoff it- self was discriminatorily motivated, the fact that Penning- ton was originally laid off "by mistake," not having been "in the hole" for 2 or the 3 preceding months, does not make his layoff any the less discriminatory. And McClure, of course, who was then substituted for Pennington for layoff, is in precisely the same posture as the other discrim- inatees. I find, accordingly, that Respondent violated Sec- tion 8(a)(1) and (3) by laying off the seven salesmen in- volved. C. The Representation Case Having found that Respondent discriminatorily laid off employees Doris Taylor, Marcus Estes, Patricia Pacula, Corbin Pennington, Rex Yasbeck, Pat Canelli, and Ken McClure, I shall recommend that the challenges to their ballots be overruled. With respect to Rosemary Taylor, I am satisfied, considering the credited testimony of Horton about Mazza's threat to "flood" the store, as well as the advertisement for new employees, and considering also that she was hired on October 30, 1 day before the mass layoff, and was Mazza's sister, that she was not a bona fide employee, but was hired as part of Mazza's antiunion cam- paign. I shall recommend that the challenge to her ballot be sustained. As to David Hall, he voted in an election conducted among Respondent's warehouse employees on October 16, he was told by Mazza in the latter part of October to do more selling on the sales floor, and, according to the testi- mony of employee Horton, "he kind of came and went as he pleased also. As far as having regular hours like the rest of us had he didn't." Having just voted in another unit does not in and of itself mean that Hall could not subse- quently have become part of the unit of salesmen, but tak- ing that fact into account, as well as Mazza's hiring of Taylor about the same time, I am convinced that Hall, too, was part of Mazza's attempt to defeat the Union by flood- ing the sales floor, and that he did not have the status of a "full-time" or "regular part-time" selling employee, the sti- pulated unit description. I shall, therefore, also recommend that the challenge to his ballot be sustained. CONCLUSIONS OF LAW Respondent, by interrogating employees about their union activities, by soliciting an employee to report on the union activities of other employees, by threatening to "flood" the sales floor in order to defeat the Union, and by discriminatorily discharging or laying off employees Doris Taylor, Marcus Estes, Patricia Pacula, Corbin Pennington, Rex Yasbeck, Pat Canelli, and Ken McClure, engaged in unfair labor practices affecting commerce within the mean- ing of Section 8(a)(1) and (3) and Section 2(6) and (7) of the Act. THE REMEDY I shall recommend that Respondent cease and desist from its unfair labor practices, and post appropriate no- tices. Having found that Respondent discriminatorily laid off the employees set forth above, I shall recommend that Respondent make each of them whole for any loss they may have suffered by reason of the discrimination against them to the date Respondent offered to reinstate them, in the case of Pennington, to the date he was reinstated. Back- pay will be computed in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), VALUE CITY FURNITURE 461 and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Upon the foregoing findings of fact, conclusions of law, and the entire record in the case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommend- ed: ORDERS Respondent, Value City Furniture of Springdale, Inc., Springdale, Ohio, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from: (a) Interrogating its employees concerning their union activities. (b) Soliciting its employees to report on the union activi- ties of other employees. (c) Threatening its employees with "flooding" the store for the purpose of defeating the Union. (d) Discouraging membership in Retail Store Employees Union, Local No. 1099, Retail Clerks International Associ- ation, AFL-CIO, or in any other labor organization, by discriminating against employees in regard to hire, or ten- ure of employment or any term or condition of employ- ment. (e) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights guar- anteed by Section 7 of the Act, except to the extent that such right is affected by the proviso to Section 8(a)(3) of the Act. 2. Take the following affirmative action which is neces- sary to effectuate the policies of the Act: (a) Make whole Doris Taylor, Marcus Estes, Patricia Pacula, Corbin Pennington, Rex Yasbeck, Pat Canelli, and Ken McClure in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records neces- sary to analyze the amount of backpay due under the terms of this recommended Order. (c) Post at its Springdale, Ohio, plant copies of the at- 5 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. tached notice marked "Appendix." 6 Copies of said notice, on forms provided by the Regional Director for Region 9, after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt thereof, and by maintianed by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (d) Notify said Regional Director, in writing, within 20 days from the date of this Order, what steps the Respon- dent has taken to comply herewith. IT IS FURTHER ORDERED that Case 9-RC-10848 be remand- ed to the Regional Director to open and count the ballots of Doris Taylor, Marcus Estes, Patricia Pacula, Corbin Pennington, Rex Yasbeck, Pat Canelli, and Ken McClure to issue a revised tally of ballots, and to take such further action as then becomes appropriate. 6 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 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 WE WILL NOT lay off or discharge any employee for engaging in union activities. WE WILL NOT interrogate employees about their union activities. WE WILL NOT solicit any employee to report on the union activities of other employees. WE WILL NOT threaten to hire employees for the pur- pose of defeating a union. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of rights under Section 7 of the Act. WE WILL make whole employees Doris Taylor, Mar- cus Estes, Patricia Pacula, Corbin Pennington, Rex Yasbeck, Pan Canelli, and Ken McClure by giving them backpay for the period between their layoff and the date they were either reinstated or received offer,; of reinstatement from the Company. VALUE CITY FURNITURE OF SPRINGDALE, INC.