Mangurian's, Inc.

MANGURIAN'S, INC. Mangurian's, Inc. and Retail, Wholesale and Depart- ment Store Union, AFL-CIO. Case 12-CA-6795 December 7, 1976 DECISION AND ORDER By CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS On April 26, 1976, Administrative Law Judge Maurice S. Bush issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed cross-exceptions and a supporting brief. The Respon- dent also filed an answering brief to the exceptions of the General Counsel. 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 briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge as modified herein and to adopt -his recommended Order. 1. On the basis of the credited demeanor testimo- ny of employee Martin Gorin, we adopt the finding of the Administrative Law Judge that Robert Poutre, Respondent's labor relations representative threat- ened Gorin that Mr. Wade, the chairman of Respon- dent's parent company, "was crazy enough to close down Mangurian's, if the Union got in" and that this threat of store closing violated Section 8(a)(1) of the Act. In this regard, we note that earlier in his discussion the Administrative Law Judge inferred from Poutre's testimony that he (Poutre) made an implied threat of store closings because he had told Gorin that "most chairmen of large corporations were ego-maniacs." We do not find any basis for this inference not only because Poutre's purported com- ment contains no threat, implied or otherwise, but also because Poutre's testimony was discredited and i 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 credibili- ty 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. 2 We do find that it was improper for the Administrative Law Judge to draw an adverse inference against the Respondent because of its failure to call Donay as a witness to corroborate Burd As an employee , Donay was equally available to all parties as a witness and, accordingly , no such inference, should have been drawn However, since the Administrative Law Judge's credibility resolutions clearly rest on a finding that Gonn's demeanor was superior to that of Burd's , we do not view the improperly drawn adverse inference as having a substantial effect on the ultimate credibility resolutions arrived at by the Administrative Law Judge. 227 NLRB No. 28 113 thus cannot serve as the basis for any proper findings. Accordingly, we do not adopt the Administrative Law Judge's discussion on this point, but find the violation, as noted above, because Gorin's credited testimony establishes Poutre's threat of store closings. 2. We, also adopt the Administrative Law Judge's finding that Jerome Burd, Respondent's comptroller, violated Section 8(a)(1) of the Act by telling employ- ees Gorin and Donay that President Wade had threatened to close Respondent's business if the Union won the approaching representation election. In so finding, we are aware of the discrepancy that existed between Gorin's testimony on direct examina- tion and his earlier affidavit statement. However, at a later point in his testimony, Gorin was asked by the Administrative Law Judge to specify as to which version was correct and Gorin testified that he believed the statement contained in his affidavit was what Burd actually said. The Administrative Law Judge obviously concluded that the discrepancy in Gorin's testimony was the result of a faulty memory rather than an effort to conceal the truth and he specifically credited Gorin's testimonial affirmation of his affidavit statement. The determination as to whether or not this allegation of the complaint was sustained rests entirely on the credibility of Gorin and Burd,2 and the Administrative Law Judge, who had the opportunity to observe their demeanor while they testified, believed the former rather than the latter. We can perceive of no reason for overturning this resolution and, accordingly, we find that by such conduct Respondent violated Section 8(a)(1) of the Act.3 , 3. In agreement with the Administrative Law Judge, we find that the no-solicitation rule posted at the West Palm Beach store in early March was discriminatorily promulgated in the wake of the Union's organizational campaign. Although the com- plaint did not state- accurately the dates of the discriminatory promulgation, we do not find this to be a fatal variance between the complaint and the evidence adduced. The complaint gave adequate notice as to the nature of the allegation and was not 3 The Administrative Law Judge declined to make findings with respect to pars. 5(c) and (d) of the complaint which alleged additional threats of store closure as violations of the Act on the ground that any findings would be cumulative of the violations already found. In its exceptions, the General Counsel asks the Board to make credibility findings and find the violations While the Administrative Law Judge's failure to make findings on these separate allegations is indeed perplexing , we shall nonetheless overrule the exceptions. In light of the total absence of credibility findings and the conflicting and inconsistent record testimony, we find it difficult at this stage in the proceeding to make the necessary credibility findings and accordingly shall decline to make credibility or any other findings regarding these two allegations. However, we shall not remand the case for further findings inasmuch as the remedy is unaffected by the absence of findings with respect to these two allegations Accordingly, we shall adopt the Administrative Law Judge's disposition of them. 114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD substantially amiss as to the time frame in which the violation allegedly occurred. In addition, the allega- tion was fully litigated at the hearing, and the Respondent was given the opportunity to present its witnesses and cross-examine those of the General Counsel on this point. Moreover, the crux of the violation is that the no-solicitation rule was promul- gated, in response to the Union's campaign as a means of interfering with the organizational rights of the employees, and the evidence supports such a finding. Thus, whether or not the no-solicitation rule was promulgated before or after the -filing of the petition is not significant in view of the finding that the rule's promulgation was prompted by the Union's organizational campaign and thus was an unfair labor practice. Therefore, the de minimis variance between the complaint and the evidence as to the dates of the violation does not affect our finding. In this light, we cannot accept the view of the Adminis- trative Law Judge that Respondent "waived that defect" and that the complaint was amended accord- ingly to conform to the evidence. There is certainly no evidence that Respondent made any waiver, particularly in view of the fact that it raised the issue of variance in its defense and made it a subject of its exceptions. In addition, the record does not indicate that any motion to amend the complaint or conform the pleadings was timely made. For these reasons, we do not rely on the discussion of the Administrative Law Judge, but instead find that the allegation concerning the no-solicitation rule's promulgation was fully litigated and the evidence supports a finding of the violation. 4. We find in agreement with the Administrative Law Judge that Respondent's reprimand and warn- ing to Rene Proulx for distributing union leaflets at Respondent's Powerline Road Distribution Center violated Section 8(a)(1) of the Act. Respondent defended its actions on the ground that the leaflets were demeaning to management and were passed out to customers, as well as employees, to the detriment of the Company. On the basis of the credited testimony, the Administrative Law Judge determined that Proulx had distributed leaflets only to employees and not to Respondent's customers and thus there was no basis for Respondent to conclude that Proulx had publicly demeaned the Company. Upon examin- ing a copy of the leaflets distributed by Proulx, we find, as did the Administrative Law Judge, that the literature was not defamatory and did not exceed the limits of appropriate campaign literature. Thus, even 4 We note that Kenneth Elsie , another employee, and his wife, helped Proulx distribute the leaflets , yet Kenneth Elsie was not similarly reprimand- ed. 5 Alberts, Inc., 213 NLRB 686, 689 (1974); Textron, Inc. (Talon Division), 199 NLRB 131, 136-138 (1972), Atlanta Gas Light Company, 162 NLRB 436, 438(1966). assuming the leaflets may have been distributed to customers, there was no justifiable cause for disciplin- ing Proulx while he was engaged in this protected activity. Indeed, we fmd that Respondent's asserted reason was a mere pretext for discriminatorily reprimanding Proulx for his union activity,4 and accordingly on this basis we find the violation. 5. We adopt the Administrative Law Judge's findings, based on the credited demeanor testimony and the record, that the presence of Shop Supervisor Anthony Pagliuco, Jr., on two occasions at the Holiday Inns when the Union held organizational meetings was a mere coincidence and not for the purposes of surveillance as alleged in the complaint. In agreement with the Administrative Law Judge, we also find that Pagliuco's presence on these two occasions did not violate the Act by creating an "impression of surveillance." Not only did the complaint fail to state this allegation, as noted by the Administrative Law Judge, but no violation could be made out in any event on the facts cited by the General Counsel. What the General Counsel has actually contended is that Pagliuco's mere presence, without more, at the place of the union meetings is a violation of the Act. This argument is patently without merit. Our finding in the present case that Pagliuco did not engage in surveillance in violation of the Act was predicated on the initial determination that Pagliuco was not present at the motels for the purposes of engaging in conduct violative of the Act. In other words, his very presence which the General Counsel maintains violated the Act for its impression of surveillance has been exculpated. It would be injudicious for us to find now that this exculpated presence alone violated the Act in, the face of our earlier determination that Pagliuco, though present coincidentally at the place of the union meetings, had not engaged in any unlawful conduct. For these reasons, we fmd that no violation of the Act has occurred.5 In all other respects we adopt the Decision of the Administrative Law Judge .6 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 the Respondent, Mangurian's, Inc., its officers, agents, successors, and assigns, shall take the action set forth in said recommended Order, 6 We also find no merit to the Respondent's exceptions to Administrative Law Judge Arthur Leff's order granting the General Counsel's motion to strike Respondent's second affirmative defense. MANGURIAN'S, INC. except that the attached notice is substituted for that of the Administrative Law Judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Act, as amended, gives all employees the following rights: To organize themselves To form, join, or support unions To bargain as a group through a represen- tative they choose To act together for collective bargaining or other mutual aid or protection. WE WILL NOT promulgate any no-solicitation rule in a manner calculated to interfere with the employees' right to self-organization. WE WILL NOT issue written reprimands nor will we in any other manner threaten our employees with reprisals for engaging in union activities. WE WILL NOT tell our employees that the Company will close its doors if the Retail, Wholesale and Department Store Union, AFL- CIO, or any other labor organization, gets in. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist the Retail, Wholesale and Department Store Union, AFL- CIO, or, any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. All our employees are free to become, remain, or refrain from becoming 'or remaining members of Retail, Wholesale and Department Store Union, AFL-CIO, or any other labor organization. - MANGURIAN'S, INC. DECISION STATEMENT OF THE CASE MAURICE S. BUSH, Administrative Law Judge: Respon- dent, Mangurian's, Inc., a 50-year-old-company, operates a 1 The above findings are chiefly based on the findings in the Regional Director's Decision and Direction of Election, dated May 21, 1975, in Mangunan's, Inc, in Cases 12-RC--1823, 4824, 4827, 4828, and 4838 (consolidated), as set forth in G.C. Exh_ 3, which the parties stipulated could 115 chain of eight retail furniture stores and supporting warehouses in Florida and Georgia but only certain of its stores and facilities in southeast Florida are related to the issues in this proceeding- For the past 6 years Mangurian's has been the wholly-owned subsidiary of General Portland, Inc., a company with assets of more than $217 million whose fundamental business is the manufacture of cement and cement products which it markets throughout much of the United States but principally in the South, the Midwest, and California. As here pertinent, Mangurian's involved southeastern Florida facilities are as follows: (1) Mangurian's Distribu- tion Center on Powerline Road in Fort Lauderdale, which serves both as a warehouse for all of Respondent's Florida retail furniture stores and as the administrative headquar- ters of the Company; about 200 persons are employed at the Center; (2) the Big "M" retail store located adjacent to Respondent's Distribution Center in Fort Lauderdale which employes 6 salesmen; (3) the Fort Lauderdale store on U.S. Highway No. 1, Respondent's largest retail store which employs 25 salesmen; (4) the North Miami store, 16 employees; (5) the West Miami Beach store, 10 salesmen; and (6) the South Miami store, 10 salesmen.' There is no past bargaining history for any of the employees in the above facilities. In late February and early March 1975, the above-named Union started a campaign to organize Mangurian's afore- noted southeastern Florida facilities, with efforts directed principally to the organization of the Company's sales personnel. In March 1975, the Union sponsored union meetings of Respondent's employees, attended primarily by salesmen. The Union has filed a number of election petitions with the Regional Director for Region 12. On March 7 and -10, 1975, the Union filed such petitions in Cases 12-RC-11823 and 12-RC-4824 to determine whether the sales employees and the nonsales employees, respectively, at the Company's West Palm Beach store desired to be represented by the Union for purposes of collective bargaining. Similarly, the Union on March 11, 1975, similarly filed election petitions in Cases 12-RC-4826 and 12-RC-4827 to determine whether the sales and nonsales employees, respectively, at the Company's largest store, the U.S. Highway No. 1 store in Ft. Lauderdale desired to be represented by the Union for representation purposes. The next day, March 12, 1975, the Union also filed election petitions in Cases 12-RC-4828 and 12-RC-4829, for the determination of whether the sales and nonsales employees, respectively, at the Company's North Miami store desired to be represented by the Union for collective- bargaining purposes. In the aforementioned Decision and Direction (see fn. 1), dated May 21, 1975, the Regional Director for Region 12 determined the appropriate unit and gave directions for an election by secret ballot. The election took place on June 20, 1975. be made the basis for refindings in this proceeding The number of employees shown above employed at the distribution center is based upon the testimony of Respondent's operation manager, John Verille. 116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As prior to the election of June 20, 1975, the Union on June 9, 1975, had filed unfair labor charges against Respondent in Case 12-CA-6795, the present proceeding; the Regional Director ordered the ballots cast on June 20, 1975, "to be impounded without counting awaiting ultimate disposition of the aforesaid unfair labor practice charge." Pursuant to the Union's unfair labor charge, the Regional Director issued the complaint in the instant proceeding on August 12, 1975. By letter dated August 14, 1975 (Joint Exh. 1), with respect to the aforementioned election petitions in Mangu- rian's, Inc., Cases 12-RC-4823, 4824, 4826, 4827, and 4829, the Regional Director notified Respondent of the contin- ued impounding of the ballots cast on June 20, 1975, as follows: It having been concluded, in- Case No. 12-CA-6795, that violations were committed by the Employer, a complaint has now been issued. Since such violations occurred among employees in the southeast coast unit found appropriate- in the above-captioned matters, and no request'td proceed having been filed, the ballots cast on June 20, 1975, will continue to be impounded without counting, awaiting ultimate disposition of the aforesaid unfair labor charge. (Joint Exh. 1.) Under the above skeletonized but undisputed back- ground facts, the, issues in the instant proceeding under the pleadings are as follows: (1) whether Respondent on two different dates in March 1975 engaged in surveillance of the union activities of its employees; (2) whether in March 1975, Respondent discriminatorily promulgated a "no- solicitation" rule after the Union had filed election petitions for several of Respondent's stores; (3) whether in April 1975 at Respondent's largest Ft. Lauderdale store on U.S. Highway No. 1, alleged Supervisor Betty Houston warned an employee that she had been told by company officials that, if the Union came in, the store would be closed, and the preliminary question of whether Betty Houston is a supervisor within the meaning of the Act; (4) whether on a certain date in April 1975, at Respondent's South Miami store, also known as the South Dixie store, Store Manager Joseph Bober threatened an employee that she would not get her $250 escrow deposit back at that time because the Union was now attempting to organize Respondent's employees and that the Company might have to shut its doors because of the Union, (5) whether in early May 1975 Respondent by its president, R. O. Wilson, issued a written reprimand to an employee for distributing union leaflets at Respondent's distribution center and warned the employee that more serious action would be taken if he continued engaging in union activity; (6) whether in mid-May 1975, Respondent's then personnel director, Steven- Waldsch- midt, at the West Palm Beach store threatened that if the Union came in it would cause the Company to close its doors; (7) whether in May 1975, Respondent's comptroller, Jerome Hurd, threatened employees at Respondent's North Miami store that Board Chairman Wade, of the parent Company, General Portland, Inc., would close the store if 2 Incorrectly spelled "Putne" in the complaint. 3 Although Respondent in its answer denies that Respondent is an employer engaged in commerce within the meaning of the Act, Respondent the Union got in; (8) whether in May or June 1975, Robert Poutre,2 a company labor relations representative , warned employees at the Company's showroom lobby of the North Miami store that Board Chairman Wade of the parent Company was a nut and crazy enough to close Mangurian's if the Union got in. These issues, stated in the order they appear in the pleadings, will be taken up in different order below and grouped where possible. As heretofore noted the complaint herein was issued on August 12, 1975, pursuant to a charge filed on June 9, 1975. Respondent's answer denies the alleged unfair labor practices. The case was heard on November 10, 11, and 12, 1975, at Coral Gables, Florida. For reasons hereinafter indicated, I find the Respondent in multiple violation of the Act as alleged in the complaint, except that I have not made findings on two of the five allegations of the complaint that Respondent threatened employees that it could go out of business if the Union got in on the ground that findings thereon would be merely cumulative of more serious violations already found on the other three allegations of the same character because the violations therein were by much higher echelon company officers and findings on the remaining two allegations of such threats would not add to the'remedy, and also except for the dismissal of a surveillance allegation for failure of proof. Upon the entire record in the case and from my observation of the witness , I make the following: FINDINGS OF FACT 1. JURISDICTIONAL FINDINGS Respondent Mangurian's, Inc., a Delaware corporation, is licensed to do business in the State of Florida where it is engaged in the business of operating retail stores and a distribution center in the States of Florida and Georgia. During the past 12 months, a representative period, Respondent had sales valued in excess of $500 ,000, and during the same period it purchased and received goods and materials valued in excess of $50,000 directly from suppliers located outside the State of Florida. Based on these admitted facts I find that the Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act which finding is also in accord with the finding of the Regional Director for Region 12 in his aforementioned Decision and Direction of Election, Mangunan's, Inc., Cases 12-RC-4823, 4824, 4827, 4828, 4829, and 4838 (consolidated).3 II. THE LABOR ORGANIZATION INVOLVED Retail, Wholesale and Department Store Union, AFL- CIO, the Charging Party, is a labor organization within the meaning of Section 2(5) of the Act. in its answer and at the hearing admits the basic facts upon which the above commerce finding is made and in its brief makes no contention that Respondent is not engaged in commerce within the meaning of the Act. MANGURIAN'S, INC. 117 M. THE ALLEGED UNFAIR LABOR PRACTICES A. Issues as to Whether Respondent Made Multiple Threats To Close Their Retail Furniture Stores if the Union Got in The complaint alleges five-separate instances of threats or warnings by five different company-supervisors to employ- ees that Respondent could close all of its retail furniture stores or particular stores in southeastern Florida if the Union succeeded in organizing the Company's stores. These alleged incidents will be set forth below in a different time order than their chronological order in the complaint. Incident of Poutre's alleged threat of store closings if Union got in About a month or so prior to the Board-conducted representation election held on June 20, 1975, the Company hired Robert Poutre as its labor relations representative.4 Subsequently at times not here -material Poutre was made Respondent's personnel director, succeeding to the post formerly held by Steven Waldschmidt, hereinafter referred to. In the weeks prior to the election, Poutre made it his business to visit each of the Company's retail furniture stores where in his own words he sought "to help manage- ment with their campaign" to win the forthcoming repre- sentation election against the Union. At these visitations.he also made himself available to answer any questions put to him by employees about the "issues" in the approaching election. - With these objectives in mind, Poutre visited the Compa- ny's North Miami store one Saturday at a time close to the election where, after introducing himself as Mangurian's labor relations representative, he invited questions from the several salesmen then on duty on the issues in the approaching election, including longtime salesman Martin Gorin who had signed a union authorization card in March 1975. Poutre testified that ' Gorin, ' ,in response to his invitation for questions, asked him if he thought that Mr. Wade-,, the, chairman of Mangurian's parent Company (General Portland, Inc.), "would close the plant down if the Union -came in." Gorin's credited testimony shows that Poutre's response was that Mr. Wade, "was crazy enough to 4 At the hearing Poutre testified that he was engaged by the Company as its "management consultant," but in the pleadings it is admitted that at all times here,material Poutre was Respondent's labor relations representative The record further shows that when Poutre called at the Company's North Miami-.store ' in late May or early June 1975, he introduced himself to salesman Martin Gorin as the Company's "Labor Relations man."' Under this state of the record, I do not credit Poutre's testimony that he was initially hired by Respondent as a "management consultant," whatever that term might mean 5 Five- other salesmen at the North Miami store at the time of Poutre's above-descnbed visit to that store likewise denied hearing Poutre making any statements that Respondent would close its business if the Union got in These salesmen testified as witnesses in behalf of the Respondent. Their collective testimony shows that because the day of Poutre's visit to the store was a Saturday, the busiest day in the week, they frequently left Poutre's presence to wait on customers In that connection, Jacob Chaykin, one of the top salesmen at the North Miami store, testified,,"I have a lot of people that wait for me in turn. So I didn't have much time on that floor I was mostly on the floor and wasn't able to listen." Thus, the testimony of these salesmen witnesses who frequently had to leave Poutre's presence to wait on customers during the course of his store visit and who testified that they did not hear close down Mangurian's, if the Union got in." Poutre denies that he made that statement to Gorin, but based on Poutre's` unconvincing demeanor and his misleading testi- mony that he introduced himself as Respondent's "man- agement consultant" when in fact the pleadings and the evidence shows that his capacity with Respondent was that of a labor relations representative, I do not credit Poutre's denial .5 However, while Poutre denies that he made the indicated statement to Gorin, he admits that, in answer to Gorin's question of what Mr. Wade would do if the Union got in, he had answered that although he had not met Wade, in his (Poutre's) experience, he had found that most board chairmen of large corporations (of which Mangurian's parent Company is- one) -were "ego-maniacs." I infer and find that Poutre's own admitted remark that most chairmen of large corporations are egomaniacs constituted an im- plied threat or warning that if the Union won the election it could trigger Wade into closing up Mangurian's. Conclusion From the above findings I find and conclude that Respondent's labor relations representative, Poutre, at a time close to the then forthcoming representation election warned employee Martin Gorin that Chairman Wade of the parent Company could be crazy enough to close up Respondent if the Union got in, substantially as alleged in the complaint. Incident of Waldschmidt's alleged threat of store closings if Union got in On April 28, 1975, a month or more prior to Poutre's visit to -the North Miami store, Respondent's personnel director, Steven Waldschmidt,6 made a visit to Respondent's West Palm Beach store for the express purpose of delivering an 11-page prepared speech to the employees in that store on the subject of the union activity then taking place there, as the Union on March 10, 1975, had filed a petition with the Board for an election by the employees in the store. The speech was delivered twice; once to half of the employees ' in the store and then to the remaining half.' The opening sentence of the canned speech which bears the caption, "Second Talk," reads: "I want to talk to you about the him say that Mangunan's, Inc., would close if the Union got in, does not prove that he didn't make that statement when they were not in his presence. In addition any review of the testimony of these salesmen witnesses for Respondent shows that their denials that they heard Poutre say that Mangunan's would close if the Union got in were merely blanket denials devoid of any convincing details to lend credibility to their denials. Thus; their testimony `lacked the ring of credibility. The testimony of salesman Murray Scher that Poutre on his visit to the store never even mentioned the subject of unions is especially unreliable as Poutre's own 'testimony shows that his object in visiting the North Miami store was,"to help management with their campaign" to win the approaching representation-election and that he was questioned on what would happen if the Union got in. Finally, the demeanor of all of these salesmen witnesses were not convincing that they were telling the truth For all of these reasons I do not credit their testimony that Poutre did not tell them or some of them in one way or another that Mangunan's could close if the Union got in. 6 Waldschmidt was no longer an employee of Respondent at the time he testified herein, having left the employment of Respondent on September 5, 1975, to take a position with another employer. Upon his departure from the Company or shortly thereafter Poutre became Respondent's personnel director. ` 118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union organizing drive that is going on by some outsiders known as the Retail, Wholesale, and Department Store Union and by some of your co-employees." The speech seeks to convince the assembled employees that it would not be in their best interests to loin the Union. Typical sentences in the speech to this effect are as follows: "If you signed one of these [union authorization] cards, did you stop and think you were giving up your independence, your voice as an individual?" "In fact, if this Union should become your recognized agent, you will no longer be able to talk for yourself. Mangurian's management will have to say, `I am sorry, but I can only talk with the Union Representative about your problem when its time to renew the contract' " "Once a Union gets in a Company, it is a complex legal problem to get rid of it. There are no free demonstrations." The text of the canned speech is in evidence as Respondent's Exhibit 3. The typewritten text of the speech does not of itself contain any express or implied threats that union activity could cause Respondent to close down the store. Since the complaint does not allege any violation of the Act by virtue of Waldschmidt's canned speech per se as reflected word for word in Respondent's Exhibit 3, there is no issue in this proceeding with respect to the speech as set forth verbatim in the exhibit. However, counsel for General Counsel contends that Waldschmidt in delivering his canned speech to the West Palm Beach store employees departed from its prepared text and as alleged in the complaint "threatened that if the Union came in it would cause the Company to close its doors." Counsel for General Counsel called two employee- witnesses, salesmen Eugene O'Brien and Rene Proulx, in attendance at the first employee meeting at which Waldsch- midt read his speech, in support of the allegation that Waldschmidt "threatened that if the Union came in it would cause the Company to close its doors." Long prior to the incident here involved both O'Brien and Proulx had signed union authorization cards in behalf of the Charging Party. Both O'Brien and Proulx testified that somewhere during the course of Waldschmidt's reading of the prepared speech he made reference to the bad business Mangurian's was experiencing due to the deep decline in the building of new home construction in Florida and further testified in that connection that Waldschmidt in effect had stated that if the Union came in it could possibly cause the Company to close its doors. That alleged remark by Waldschmidt is not in the verbatim copy of the prepared speech as reflected in Respondent's Exhibit 3. The only reference to economic conditions in Exhibit 3 is the general remark therein that, "Times aren't too good right now. A lot of people are out of work and a good portion of those people are union members." The end of the canned speech invited questions from the store's employees as follows: "I have just covered several subjects. Do any of you have any questions on what I covered?" O'Brien's precise testimony on what Waldschmidt said at the meeting with respect to the Company closing down is the following, "Mr. Waldschmidt stated that the Company was in a struggle ... for survival at that time ... and that he said that if the Union got in, it could possibly mean that Mangurian's would go under." Proulx's precise testimony in the same connection is that, "Mr. Waldschmidt said that business was bad, and in the face of that, we have a Union to contend with, and that if the Union came in, Mangun- an's would go under and close their doors." The following exchange took place between me and witness Proulx on the statement he attributed to Waldschmidt that if the Union got in the Company would go out of business: JUDGE BusH: . . . on that statement, I want you to think very carefully. Was that statement made as part of the thing [the speech] that was read to you? THE WITNESS: It was hard to tell, because he [Waldschmidt ] was reading, and he may have ad libbed it into the statement. I can't honestly say. JUDGE BUSH : But you're sure it was made? THE WITNESS : I am positive. I'm positive the state- ment was made because I had gotten up and asked if I could be dismissed from the meeting, at which time, Mr. Wilson [Respondent's president ] said, "Yes, nobody has to sit in who doesn't want to." Other seemingly conflicting testimony by Proulx appears to show that he left the meeting, not right after Wald- schmidt made the alleged statement that Mangurian 's could close if the Union got in, as shown above, but immediately after President Wilson, towards the end or at the end of Waldschmidt's canned speech, accused the Union, either directly or indirectly, of driving a truck into a company truck, thereby injuring one of the Company's female employees. However, a careful examination of Proulx's testimony as a whole shows no real conflict in his testimony . A close scrutiny of his testimony shows that Wilson's alleged accusation against the Union came immediately after Waldschmidt (allegedly) told the employees that if the Union came in Mangurian's could close down and that thereupon both Proulx and O'Brien, with Wilson's permis- sion, left the meeting room and that this sequence of events firmly fixed in Proulx' s mind Waldschmidt's immediately prior intimation of a possible closure of Mangurian's if the Union got in. Waldschmidt directly denied the testimony of O'Brien and Proulx that he had told the employees that Manguri- an's would possibly close their doors if the Union got in and testified that he did not deviate in any way from the text of his prepared speech and that there were no questions from the floor after he had read his speech although its concluding sentences invited inquiries from the floor. However, when Waldschmidt as a witness for the Company was asked by counsel for the Company, "Did you say anything other than what was said in that speech?", his first response was, "No, I don't recall." In his direct examination , President Wilson testified that he was with Waldschmidt at the West Palm Beach store at the time Waldschmidt read his speech and that while the speech was being given, he, Wilson, kept a copy of the speech in front of hun to make sure that Waldschmidt read it word for word and that there was no variance. However, on cross-examination, Wilson admitted, "I cannot remem- ber exactly if I . . . followed him word for word through the speech." It is also evident from the record that toward the MANGURIAN'S, INC. end of Waldschmidt's canned speech and any ad libbing Waldschmidt may have added that Wilson was to some extent concentrating on what he planned to tell the assembled employees about someone's attempt to run one of the Company's employees off the road. Respondents fmal witness was Ken Gwaltney, at all times here material a display designer at the West Palm Beach store but who prior to the hearing herein had been transferred at his request to Respondent's store at Atlanta, Georgia, where he is also employed as a display designer. He voted in the representation election of June 20, 1975, and served on that occasion as an observer for Manguri- an's. He testified that he was present at the employee meeting at the West Palm Beach store at which Wald- schmidt gave the speech in question. This was the meeting which was also attended by the aforementioned salesmen O'Brien and Proulx. Asked by counsel for Respondent if anything was said at that meeting about Mangurian's closing because of union activity, he testified that he "never heard anything like that at all." He also testified that, after Waldschmidt finished reading his prepared speech, Presi- dent Wilson also read a prepared statement. His testimony that President Wilson at the same-employee meeting also read a prepared statement to the assembled employees is completely contrary to fact as there is no evidence or claim by any of the parties hereto that following Waldschmidt's reading of his speech that Wilson also made a speech, canned or otherwise, to the assembled employees. Because of this complete misstatement of what actually occurred at the meeting and Gwaltney's unfavorable demeanor evi- dence, I do not credit his testimony that he "never heard" Waldschmidt say anything about the possibility of Mangu- rian's closing down if the Union got in. At the time Waldschmidt gave his prepared and protect- ed speech- on the subject of union activity at the Company's West Palm Beach store and for some years prior thereto, Mangunan's had an unsatisfactory profit performance. General Portland, Inc., Mangurian's parent Company, made the following statements about Mangurian's poor performance in its 1973 Annual Report to the stockholders of General Portland: a DISCONTINUED OPERATIONS As a result of Mangurian's poor performance over the last three years, the decision was made in late 1973 to sell our retail furniture operations. This divestiture will allow the company to concentrate on its fundamental business-cement-and should provide in excess of $30 million of previously committed capital funds for alternative uses. In October we directed Merrill Lynch, Pierce, Fenner & Smith to contact potential purchasers of the furniture retailing business. The Rochester stores were sold in January 1974, and we anticipate an orderly disposition of the rest of the business during this year. Declining volume in the fourth quarter contributed to a net loss from operations for Mangurian's in 1973 of $381,000. An additional provision of $5,600,000, net of taxes, has been made in the fourth quarter of 1973 to 119 cover possible losses relating to the future operation and disposal of the retail furniture business. In its 1974 annual report to stockholders, General Portland, Inc., again reported continuing operating losses for Mangurian's and also reported that it had been unable to dispose by sale of Mangurian's retail furniture business. The report shows that in 1974 that Mangurian's either sold or closed stores it had in Rochester, Houston, Dallas, and Denver. President Wilson kept the Florida employees advised of these out-of-state store closing by postings. Some of Respondent's Florida furniture salesmen were even sent to these out-of-state stores to help out on their going-out-of- business sales. More fully, the parent Company's 1974 report to its stockholders make the following statements on Mangurian's financial condition and prospects: MANGURIAN'S. Management made a decision in late 1973 to dispose of the company's retail furniture business. We have been unsuccessful in selling this operation to one buyer, however, because of Manguri- an's unsatisfactory profit performance and the prevail- ing conditions in the financial markets during 1974. As an alternative action, we have, during 1974, sold or closed stores in Rochester, Houston, and Dallas and Denver-leaving eight stores in Florida and two in Atlanta, where we have well-established markets. Mangurian's continued to experience operating losses during 1974. These losses resulted from a significant decline in the demand for home furnishings, causing Mangurian's 1974 sales volume to decrease by 31 percent. As a result, and in anticipation of the continua- tion of a weak home furnishings market through a portion of 1975, we increased the reserve for future losses at Mangurian's by $3,000,000, or $44 per share in 1974. We are directing our current efforts to improving the operating performance of Mangurian's and have re- cruited a new and experienced management team. The new management has instituted _programs to reduce inventories and operating costs and to increase sales. Despite the currently poor demand for home furnish- ings in Florida and Atlanta we expect improvement in these operations in 1975. The record as a whole shows that Mangurian's poor profit performance continued well into 1975 with rumors rampant about the possible closing of the Mangurian's stores in southeastern Florida because of poor business. Mangurian's president, Wilson, testified that from and after his appointment as Mangurian's chief executive in August 1974 he considered it part of his job "to suppress the rumors of going out of business and company closing." He further testified that at every meeting he had with employees, "there were questions posed to me about the company closing, the company closing additional stores, the compa- ny going out of business or the company being sold." Approximately seven or eight employees were in atten- dance at the West Palm Beach, store employee meeting, at which Waldschmidt delivered his protected address on the 120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union activity at the store. At least four or possibly five of the employees in attendance were salesmen. The remaining three or four employees at the meeting were essentially service employees, such as dock employees, a janitor, and a display designer, the aforementioned Ken Gwaltney. Of the four or five salesmen at the meeting, only salesmen O'Brien and Proulx testified. Respondent did not call any of the other employees present at the meeting, other than Gwalt- ney, to refute the testimony of O'Brien and Proulx that Waldschmidt told the employees at the meeting that Mangurian's would possibly close their business if the Union got in. For reasons heretofore stated I have discredited Gwaltney's denial that Waldschmidt made the statement attributed to him by O'Brien and Proulx. As heretofore noted Personnel Director Waldschmidt delivered the speech in question on April 28, 1975. The record shows that salesmen O'Brien and Proulx gave sworn statements on June 19, 1975, 'only some 6 weeks after the employee meeting, as to what occurred at the meeting. I infer and find that O'Brien and Proulx in testifying at the hearing herein in November 1975 had the advantage of their sworn statements of June 1975 to refresh their recollections of what Waldschmidt had said to the employ- ee meeting in April 1975. The record fails to show that Waldschmidt at the hearing had any such similar-aide to refresh his recollection of'any ad-lib statements he may have added to his typewritten speech. As aforenoted, Waldschmidt's first response was, "No, I don't recall," when counsel for Respondent asked him, "Did you say anything other than what was in that [typewritten] speech." Discussion and conclusions From the mosaic of the record as set forth in the above specific findings, I find and conclude that Personnel Director Waldschmidt on April 28, 1975, in addressing a group of the Company's West Palm Beach store's employ- ees did tell them that because business was bad, if the Union got in, it could possibly cause the Company to go out of business. I further find and conclude that this constituted a threat to the employees that if they voted to be represented by the Union in the forthcoming election, their action could cause the Company to close its doors and go out of business. I have made the above conclusionary findings in part because I find both the demeanor evidence and testimony of O'Brien and Proulx that Waldschmidt did tell the assembled employees that Respondent could possibly go under and close its doors if the Union got in is more convincing than Waldschmidt's denial thereof or President Wilson's supporting denial. As opposed to Waldschmidt's uncertainty I find a ring of truth and certainty in the testimony of O'Brien and Proulx. It was found above that when I intercepted Proulx's testimony to inquire whether Waldschmidt's aforenoted remark was part of Wald- schmidt's prepared speech, Proulx ahswered,"It was hard to tell because [Waldschmidt] was reading, he may have ad- libbed it into the statement. I can't honestly say." But when asked if he was sure that Waldschmidt made the statement, he replied without hesitation' that, "I'm positive." I also find that Proulx's refusal to give a categorical answer to the question of whether the statement was made as part of Waldschmidt's prepared speech or was ad-libbed is another indication-of the essential truthfulness and honesty of his testimony. On the other hand, Waldschmidt's admitted uncertainty, "I don't recall," about whether at the meeting he said anything other than what was in his canned speech is in direct contrast to Proulx's certainty that Waldschmidt made the statement he and O'Brien attributed to him. Another factor in my accreditation of the indicated testimony of O'Brien and Proulx is that although there were some five or six other employees at the meeting who could have testified as to whether or not Waldschmidt made the attributed statement, Respondent did not call any of them as witnesses except one, the aforementioned Gwaltney, who no longer resides in southeastern Florida but now lives in Atlanta where he is employed at Respondent's Atlanta store. As heretofore shown, his testimony supporting Waldschmidt's denial that he did not make the statement attributed to him by O'Brien and Proulx was discredited because he [Gwaltney] testified to more than what actually in fact occurred at the meeting and thus established himself as an unreliable witness. In addition, other background factors support the con- clusion and finding here made that the question of whether the Respondent would remain in business if the Union won out in the approaching election was virtually certain to have been brought up at the employee meeting Personnel Director Waldschmidt addressed because the very subject of his address was the union activity then going on at the Palm Beach store. At that time it was well known to Respondent's Florida employees that the Company's par- ent company (General Portland, -Inc.), had caused Mangu- rian stores in other States to be sold or closed because they were unprofitable and that some of the- -Mangurian's Florida salesmen had even been sent to such out-of-state stores as they were being phased out of business to help in their going-out-of-business sales. At or around the time Waldschmidt made his speech, rumors that Mangurian's was going out of business were so rampant that President Wilson, according to his own testimony as found above, had to make it his business to deny the rumors and to assure company employees at all his meetings with them that Mangurian's was going to keep its doors open in Florida. These circumstances give additional credence to the testi- mony of O'Brien and Proulx that Waldschmidt, whether on his own initiative or in response to a question, told the assembled employees that Respondent, due to bad busi- ness, could go out of business if the Union won the election. Although the record is convincing that Waldschmidt did not intend the statement to be a threat but on the contrary merely as an honest opinion, I reiterate the finding above that in the minds of the employees in attendance at the meeting the statement constituted a threat that if they voted for the Union at the forthcoming election it could cause the Company to shut down its chain of retail furniture stores in Florida and thus cause them to lose their jobs.- Incident of ' Burd's alleged threat of store closings if the Union got in In an earlier section of this Decision it was found that Mangurian's labor relations representative, Robert Poutre, at a time close to the then approaching representation MANGURIAN'S, INC. election of June 20, 1975, warned employee Martin Gorin, a salesman at the North Miami store, thatChairman Wade of Mangurian's parent Company (General Portland, Inc.), could be crazy enough to, close , up Mangurian's retail furniture stores in Florida if the Union got in. In this section -we deal with a further allegation of the complaint that Respondent's comptroller, Jerome Burd, in May 1975 also threatened employees that Chairman Wade would close the same North Miami store if the Union got in. The evidence identifies one of the recipients of Burd's alleged threat to be the same employee, Martin Gorin, who had been the recipient of a similar warning or threat from Labor Relations Representative Poutre.'Gorin, as aforenot- ed, had signed a union authorization card in March- 1975. The record shows that in early May 1975 Burd, who as the Company's comptroller was fully conversant with and much concerned over Respondent's then adverse financial condition, visited the North Miami store for the purpose of installing a new procedure for recording tax-exempt sales. It is admitted that, while Burd was talking to salesman Nat Donay at the store, Gorin came over and introduced himself to Burd whom he had not met before. From that point on Gorin and Burd are in disagreement as to "what transpired between the two men at that time. Gorin testified that he joined Burd and Donay in a conversation that lasted about 5 minutes. He further testified that somewhere during the course of that three-cornered conversation Burd stated that Mangurian's would close down if the Union got in and that he (Gorin) countered that Burd's prediction was "ridiculous" because "when a company [the parent Compa- ny] invests 24 to 26 million dollars . . . they're [not] going to shut down." Gorin testified that he regarded Burd's prediction of a Mangurian closedown if the Union won the election as a threat. Under cross-examination, Gorin admitted that his,' prehearing affidavit of June 17, 1975, gives the source of'the prediction or threat as coming from President Wade of the parent Company, as reported to him by Burd and not as, he testified, by Burd independently of Mr. Wade, as is reflected in the following sentences from Gorin's affidavit: During a conversation in which Mr. Donay and I were present, Burd stated that [if] the Union went through 'Mr. Wade, President of General Portland, which owns Mangurian's . . . threatened to close down. I told Burd to stop being ridiculous. A Company that paid 24 to 26 million to buy out Mangurian's wouldn't do that. If credence is to be given to either Gorin's testimony as to what Burd told him would happen to Mangurian's if the Union got in or to Gorin's version of what Burd told him as set forth in Gorin's prehearing affidavit, I would credit the latter as it was closer to the event. Burd admits that as he was talking to Donay at the North Miami store that Gorin came up to him and introduced himself, but denies that following the introduction that there was any conversation between Gorin and himself. Thus, in effect Burd indirectly denies that while he was with Donay and Gorin he made the statement attributed to him 7 According to Gorin, right after he had introduced himself to Burd in the presence of Donay; according to Burd, in a later conversation that day at which Donay was not present 121 by Gorin that Mangurian's would close down if the Union got in. Burd, however, admits that somewhat later that day he had a lengthy conversation with Gorin at the store relating to the poor financial condition of the Company and the efforts of its officers to turn the Company around.- Burd also admits that-in this conversation he had pointed out to Gorin the options that Mr. Wade as chairman of Manguri- an's parent Company (General Portland, Inc.), had with respect to Mangurian's, to wit, to either close or sell unprofitable Mangurian stores as had been done only recently. Burd was asked by counsel for Respondent whether in his long talk with Gorin he had said anything "about the expense involved with the Union or closing down if a union came in." Burd's response was, "As part of the general discussion -we-spoke about any adverse situation that might arise, regardless of its nature." (Emphasis supplied.) In his further direct testimony Burd admitted that any adverse labor relations problem could be an "adverse factor" which could affect Respondent's future. Respondent did not call salesman' Donay as a witness to disprove Gorin's testimony that Burd while in the admitted presence of Donay and Gorin had in one way or another stated that Respondent would close down if the Union got in. - 'Discussion and conclusions Based on the above evidentiary findings and Gorin's superior demeanor evidence, I find and conclude that Respondent's comptroller, Burd, told company salesmen Gorin and Donay in a conversation he had with them at the North Miami store in early May 1975 that President Wade of Respondent's parent Company (General Portland) had threatened to close Respondent's business if the Union won the then approaching representation election. While it is clear that there is a time discrepancy between Gorin and Burd as to when 7 on'the day of Burd's visit to the North Miami store they engaged in a conversation concerning Mangurian's poor financial condition, Burd's testimony shows that such a conversation did in fact take place between him and Gorin and that the conversation was a lengthy one. Burd's own testimony also shows that he told Gorin that Mr. Wade as president and chairman of the parent Company had the option of either selling or closing up unprofitable Mangurian stores as he had recently done in other States and that a serious labor relations problem at any of the Mangurian stores could trigger Mr. Wade in exercising one of these options. These admissions in themselves lend credence to Gorin's testimony and/or prehearing affidavit that Burd had told him that President Wade had threatened to close Respondent's Florida stores if the Union got in. I also credit Gorin's testimony relative to the threat because Burd in his testimony did not directly or indirectly deny that he had relayed such a threat by Wade to Gorin. Since, according to Gorin, salesman Donay was also present when Burd related Wades alleged threat, I find that Respondent's failure to call Donay as a witness to rebut. Gorin's testimony about the threat is a further factor 122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in my accreditation of Gorin's testimony that Burd in his three-way conversation with Donay and Gorin did tell them that Wade had threatened to close up Mangurian's if the Union got in. Finally, I credit Gorin's testimony about the relayed Wade threat because" Gorin's demeanor was more forthright and convincing than Burd's indirect denial that he had said anything relating to Mangurian's possible closing if the Union got in. Summary of findings on threats to close down Respondent if the Union won the election It was found above that on three separate occasions three highly placed supervisors of Respondent made threats or issued warnings to company employees some weeks prior to a Board-conducted representation election to the effect that if the Union won the election the Respondent could close its stores and go out of business. I find that by each of these acts Respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, and thereby engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act. N.L.R.B. v. Exchange Parts Company, 375 U.S. 405, 409-410 (1964). I further find and conclude that the findings in each of these three incidents of threats or warnings constitute circumstantial evidence in support of the findings of similar threats and warnings in all three of the incidents.8 B. Issue as to Whether Respondent Promulgated a Discriminatory "No-Solicitation" Rule There is no evidence that the Respondent prior to the advent of the union activity at its West Palm Beach store in early 1975 had or enforced any rules at that store regarding solicitations and in fact certain types of solicitation were undertaken at that store for the Red Cross, the Community Fund, and the Sunshine Fund for sick employees. But on or about March 1, 1975, or about 9 or 10 days prior to the filing of the Union's aforenoted election petition with respect to Respondent's West Palm Beach store, the Company posted a notice at that store addressed "To ALL Employees," the opening paragraph of which reads, "Since the Union has been putting on a campaign to get in here, some of you may have been asking questions in regard to the following matters. We have decided to state the Company's position on these subjects as clearly as we can for everybody alike." Following this preamble, the following paragraphs as numbered in the notice, as here pertinent, read as follows: (2) It is ... our positive intention to oppose Unions by every proper means to prevent it from getting in here. 8 A further incident of an alleged warning of a store closing by an alleged supervisor to an employee if the Union came in, is alleged in par 5(c) of the complaint No findings on that alleged incident are made herein because, if found as alleged, they would be merely cumulative of identical violations already found above. A still further incident of an alleged threat of a store closing by a store manager to an employee if the Union got in is alleged in par 5(d) of the complaint. (I determine this to be the heart of the allegation of par 5(d) and not the alleged evidentiary circumstances therein about the employee's inquiry about the return of her $250 escrow deposit which led up (4) If anybody causes you any trouble at your work or puts you under any sort of pressure to join the Union, you should let the company know, and we will under- take to see that this is stopped. (5) Everyone should also know that, as in all matters- which are unrelated to work, no person will be allowed to carry on Union organizing activities on the job. Anybody who does so and who thereby neglects his own work or interferes with the work of others will be subject to serious disciplinary action. By stipulation it is established that after the above notice was posted on or about March 1, 1975, it remained posted from that time on through March 9, 1975, but not after March 9, 1975. I find no creditable testimony of record that the above notice remained posted at the West Palm Beach store after March 9, 1975, or that the same notice was posted at any other of Respondent's stores. I find that the union activities noted in the preamble of the above-described posted notices at the West Palm Beach store continued on at that store at least up to the Board- conducted election held on June 20, 1975. As heretofore noted, Respondent's personnel director, Waldschmidt, delivered a prepared speech to the employees at the West Palm Beach store on April 28, 1975, in which he took cognizance of the union activities at the store and sought to persuade the employees that it would not be in their best interest to vote for the Union in the then approaching election. Discussion and conclusions In view of the fact that Respondent prior to the advent of the union activity at its West Palm Beach store in early 1975 had no "no-solicitation" rule with respect to solicitations for the Red Cross, the Community Fund and its Sunshine Fund for sick employees, I find and conclude that the promulgation of Respondent's briefly posted "no-solicita- tion" rule with respect to union activities at a time when there was considerable union activity at the store was discriminatory and, therefore, in violation of Section 8(a)(1) of the Act. Cf. Logan Manufacturing Company, 162 NLRB 1586 (1967); Pepsi Cola Bottlers of Miami, Inc., 155 NLRB 527 (1965); Walton Manufacturing Company, 126 NLRB 697 (1960). Respondent's sole defense in its brief to the charged discriminatory promulgation of its above-described "no- solicitation" rule is that there has been a technical failure by counsel for General Counsel to prove that part of the allegation of paragraph 5(b) of the complaint that alleges that the rule was promulgated "after the Union had filed election petitions..... (Emphasis supplied.) This conten- tion is correct because the record does show that the Union's election petition for the West Palm Beach store to the threat of the store closure if the Union got in. Counsel appears to agree with this view of par. 5(d) of the complaint because in her bnef at p. 18 she states that par. 5(d), called issue 3(d) in the bnef, relates "to Respondent's threats to close its doors if the Union got in ") Similarly, no findings are made on the alleged threat in par. 5(d) because if the threat is found as alleged it would be merely cumulative of similar threats already found above to be violations of Sec. 8(a)(1) of the Act. 9 Posted on or about March 1 but removed after March 9, 1975. MANGURIAN'S, INC. was filed on March 10, 1975, or a day after (March 9, 1975), Respondent's "no-solicitation" rule had disappeared from the place where it had been posted in Respondent's West Palm Beach store. However, I fmd that this factual variance between the evidence of record , and_ the involved allegation of the complaint is immaterial and legally inconsequential for the reasons stated below and accordingly find that the failure of General Counsel to prove that the promulgation of Respondent's "no-solicitation" rule took place after the Union filed its election petitions does not constitute a valid defense to the alleged violation. I find first that since the record does not show any motion by Respondent fora dismissal of the allegation of the complaint here under consideration because of General Counsel's failure to prove that the Company's "no-solicita- tion" rule was promulgated and posted , as alleged, after the Union had filed election petitions, Respondent is deemed to have waived that defect and the complaint is deemed and found to have been amended to conform to the evidence which shows that Respondent's "no-solicitation" rule was posted at or about the time the election petitions were filed. With the complaint thus amended, I reaffirm my finding that Respondent is in violation of the Act by its promulga- tion and posting of a discriminatory "no-solicitation" rule. I also find that the phrase at the end of the charged allegation in paragraph 5(b) of the complaint reading, "after the Union had filed election petitions for several of Respondent's stores," is an unnecessary and redundant part of the charged violation as it adds nothing essential to the legal essence of the charge that, "During March 1975, the exact date being presently unknown , Respondent discriminatorily promulgated a `no-solicitation' rule." I accordingly find that the failure of counsel for General Counsel to prove that the "no-solicitation" rule here involved was promulgated after the Union had filed its election petitions is immaterial and has no direct bearing on the question of whether the Respondent promulgated a discriminatory "no-solicitation" rule. If the intent of the phrase, "after the Union had filed election petitions" was merely to point up Respondent's discriminatory motivation in promulgating its "no-solicitation" rule by tying it up with the Union's election petitions; the preamble of the rule does it even better because in it the Company acknowledges that "the Union has been putting on a campaign to get in here." In summary I reiterate my finding and conclusion ' that Respondent's promulgation of its "no-solicitation" rule was in violation of the Act as alleged in the complaint. C. Issue as to Whether Respondent Reprimanded an Employee for Distributing Union Leaflets and Warned the Employee that more Serious Action Would Be Taken if he Continued Engaging in Union Activity The record shows- that a union meeting of Respondent's employees was held on Sunday, March 16, 1975, at a Holiday Inn in Tamarac, Florida, to which all Mangurian's employees were invited. To advertise the meeting, two of Respondent's employees 123 and the wife of one of them, passed out union leaflets a few days before the scheduled meeting at a complex known as Respondent's distribution center on Powerline Road in Fort Lauderdale which consists of two separate buildings and parking lots. As heretofore shown, one of the buildings, called the distribution center, serves both as a warehouse for all of Respondent's Florida retail furniture stores and as the Company's administrative headquarters . The distribu- tion center,which faces Powerline Road, straddles the rear of the land complex; it is about 400 feet from Powerline Road, and has a fence in front of it. A private road leads from about the middle of the distribution center to Powerline Road. Viewed from the front of the distribution center facing Powerline Road, there is a large parking lot to the left of the center. To the right of the center, there is a smaller parking lot and then a-building known as Respon- dent's Big "M" store which is a retail clearance or outlet store for the sale offurniture which is being phased out. The Big "M'-'"store is also close to and faces Powerline Road and it also has a customer parking area in front of it. The only access to 'the entire complex is from a street opening on Powerline Road adjacent to the front of the Big "M." All employees at the distribution center must enter and leave by this exit. The leaflets were distributed by Rene Proulx„ the sales- man from Respondent's West, Palm Beach store heretofore referred to in connection with another issue, and Kenneth F. Elsie, a salesman from Respondent's Fort Lauderdale store on U.S. Highway No. 1, and his wife. Of these three persons who passed out the union leaflets, only Proulx testified in connection therewith. The following is a description of the union leaflet. The top of the leaflet has a caricature of a business executive at his desk shouting out over his intercom , "Send me in someone to fire." Above the head of the caricatured figure are the printed words, "Wilson, Inc." The evidence shows that the original of the caricature was drawn by a cartoonist by the name of Tom Wilson for reproduction in a Sunday comic strip in one of the local newspapers and that the caricature was reproduced from the comic strip on the union leaflet with the added words, "Wilson , Inc.," which was not on the comic strip. By coincidence the surname, Wilson, of the cartoonist, is also the surname of Roy Wilson, Respondent's president. A cutout of the caricature from the comic strip had been on display in the employees' lounge room of Respondent's South Miami store for several months prior to its reproduction in the union leaflet. It had been put on display by one of the employees at the South Miami store. At the time Proulx was distributing the union leaflet some days prior to March 16, 1975, he had no idea who had put the caricatured figure at the top of the leaflet. Beneath the caricatured figure there was the following invitation to attend Respondent's employees' meeting of March 16, 1975: 124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD JOIN MANGURIAN'S EMPLOYEE'S, HEAR THE ^ REAL TRUTH SUN. MARCH 16TH HOLIDAY INN 8 PM STATE RT. 7 (441) AND COMMERCIAL BLVD. [At Tamarac, Florida.]10 On May 9, 1975, approximately- 2 months after the leaflets were distributed at the distribution center, Mangu- rian's president, Wilson, sent Proulx the following repri- mand and warning, "Re: Union Meeting Pass-Out Leaf- let," with copies to various officers of Respondent and the manager of the West Palm Beach store where Proulx worked: I am sure you are aware that it has come to my attention that you were seen handing out copies of the attached pass-out to our Distribution Center associates several weeks ago. Not only did you pass these out to our Distribution Center associates, but to some of our Budget Store/Clearance Center customers, as well. I hope you recognize that some of these customers may not ever return to our store, and that you very well could have dramatically effected not only the present but the future earnings of our associates in the Budget Store/Clearance Center. I want you to know that I have no, objections to your passing out leaflets. However, if you should engage in such conduct which demeans either Mangurian's or its management in the eyes of our customers in the future, more serious action than this reprimand will be taken. Let's discuss this in the near future. There is no evidence of record that President Wilson sent a similar reprimand to Kenneth Elsie for his part in distributing the union leaflet. The record is undisputed that all warehouse employees and all visitors to the distribution center (i.e., the combined warehouse and administrative office building) must exit from the center through a guard's gate to get to their cars. Proulx testified that he distributed the described union leaflets to some 30 to 40 warehouse employees and only to such employees after they had walked through the guard's gate and gotten into their cars. His precise testimony in this connection is, "I know the employees who came out of the ... distribution center, had to go past the guard's gate to get into their cars. They were carefully watched as they got into their cars, and those were the only ones that were approached." His testimony further shows that if he was not certain that the persons he saw passing through the guard's gates and then getting into their cars were ware- house employees, he personally asked -each person in the car, "Are you an employee of Mangurian's?" He testified that unless such persons misrepresented themselves he passed out the leaflets only to Respondent's employees at its distribution center. The record shows that the actual distribution of the leaflets by Proulx and Elsie and his wife took place near the only exit from the complex onto 10 G.C. Exh. 4(b) is a copy of the ninon leaflet; although the exhibit does not clearly show the name, "Wilson, Inc," above the caricature, counsel Powerlme Road which as aforenoted is adjacent to the Big "M" store. The only other eyewitness to 'testify herein about the union leaflets Proulx and Elsie and his wife were passing out some days before March 16, 1975, at the distribution center complex was Respondent's operations manager, John Verille, who has his office in the administrative section of the center. Upon receipt of word in midafternoon of the day here involved from one of his supervisors that leaflets were being distributed on the complex, Verille and Respondent Vice President Burgujian immediately got into Verille's car parked inside of the fence alongside the center and drove up the private road which intersects the complex towards Powerline Road. Verille testified, that towards the front of the complex he saw Proulx and Elsie, then unknown to him, and a lady passing out literature but that they made no attempt to pass out the literature to him. Proulx and Elsie were stationed where they could be seen from the center but the lady behind the Big "M" store near the exit was where she could not be seen from the center. Returning from the front part of the complex to the center, Verille, who in only recent months had- been promoted to operations manager, reported what he had seen to President Wilson and then stationed himself at the front glass doors of the center and for a period of about 2 hours watched Proulx and Elsie passing out the leaflets, one of which was later brought to him by a.company furniture driver that afternoon. He testified that he saw the leaflets "being handed" out by Proulx whom he had previously met and by Elsie, "to every vehicle leaving the complex." From this testimony by Verille Respondent seeks a finding by inference that Proulx and Elsie were passing out the union leaflets to customers as well as to Respondent's warehouse employees. This is in direct conflict with Proulx's above- stated testimony that he gave the leaflets out only to persons whom he saw coming through the guard's gate at the center whom he recognized as company employees or who identified themselves upon inquiry as employees if he (Proulx) was uncertain of their identity as they passed through the guard's gate. Verille admits that he did not receive any' complaints from any of Respondent's customers concerning the distribution of the union leaflets to them. The record contains no testimony by any of Respondent's customers that they were the recipients of the leaflet. Discussion and Conclusion The allegation of the complaint (par. 5(e)), here involved under the, above findings, reads as follows: "On or about May 9, 1975, Respondent by its president R. O. Wilson, issued a written reprimand to an employee for distributing union leaflets at Respondent's distribution center and warned him that more serious action would be taken if he continued engaging in union activity." In its brief Respondent summarizes its defense to the above allegation as follows: "It is the Employer's conten- tion that the reprimand issued in this matter was directed have stipulated that it had those words printed above caricatured figure in the leaflet. MANGURIAN'S, INC. 125 solely to the distribution of demeaning literature to the respondent's customers. " As to Respondent's defense that the union leaflets here under discussion were distributed by employee Proulx to Respondent's customers, I credit Proulx's testimony that he distributed the union leaflets exclusively to the employees he personally saw leaving the warehouse through the guard's gate in front of the warehouse as against the inference Respondent seeks from the testimony of its operations manager, Verille, that some of such leaflets must have been distributed to customers based on his claim that he saw Proulx distribute the leaflets to every car exiting from the complex. Respondent in its brief at a footnote admits that, "It is, of course, possible that Verille was mistaken in stating that the leaflets were handed to every car." The footnote then goes on to state that Verille "certainly saw Proulx approach the car and talk to the driver" and that, "Proulx admits stopping the cars and asking if the occupant was a Mangurian employee." Thus, Respondent's own statement of the evidence admits ' and demonstrates the care Proulx took to make sure, as far as humanly possible, that he was passing out the leaflets only to Respondent's warehouse employees. Although the leaflet does not refer to the advertised March 16 meeting of Mangurian's employees as a union meeting, other indepen- dent and undisputed testimony by a number of witnesses shows that the meeting in question was a union organiza- tion meeting of. Respondent's employees. As the attendance of Respondent's customers at a union meeting of its employees would serve no useful purpose in helping the Company's employees to organize, I find this to be another reason for crediting Proulx's testimony that he distributed the leaflet exclusively to Respondent's employees employed at its distribution center. In summary I Enid that the leaflets Proulx distributed were union leaflets, that they were distributed solely to employees who worked for the Company at its distribution center and not to any of Respondent's customers. With the above findiiig, Respondent's other defense that the leaflet was "demeaning literature to Respondent's customers" also fails because as shown above the leaflets were passed out only to Respondent's employees. Actually the claim that' the leaflet was demeaning literature to Respondent's customers refers not to_ the printed-notice of the union meeting, but to the caricature of the business executive at the top of the leaflet, shouting into his intercom, "Send me in someone to fire!" and the printed letters above the figure, reading, "Wilson, Inc.," which in part contains the surname of Respondent's aforenoted president. It is again rioted that while Proulx, of course, distributed the leaflet, he had nothing to do - with the placement of the caricature on the -leaflet and had no knowledge of who did it. But regardless of the -source of the caricature and the inscription above it, the allegedly demeaning caricature in this case does not fall into the character of the "literature" the Board in Respondent's cited case of Thompson Products, as In Maryland Drydot'l, a union newspaper attacked an association of supervisors as a "scab" association as defined in Jack London 's'abusive definition of that term, another part of the same newspaper issue stated that the Company's president, a Mr French, was "popularly knbwn'as Gooiie", Inc., Thompson Aircraft Products Company, 57 NLRB ' 925 (1944), found to be impermissible and therefore subject to an effective defense against an alleged 8(a)(1) violation because in the Thompson case the involved employee's speeches "were of an inflammatory character, severely critical of management" and "transcended an employee's undoubted freedom to engage in discussions of his own liking on his own time.... " (See footnote in cited case at 970.) Similarly, the caricature here involved does not likewise remotely resemble the union "literature" in Re- spondent's other cited case of Maryland Drydock Company v. N.L.RB., 183 F.2d 538 (C.A. 4, 1950), which the court found to be "scurrilous and defamatory because it "holds its [the company's] officers and supervising officials up to ridicule and contempt"" and accordingly found the employer therein not guilty of an unfair labor practice because it had forbidden the distribution of such literature on its premises., By contrast the caricature here involved, while not in good taste, merely in protected truth depicted the right of an unorganized employer to fire an employee for any or no reason as against an organized employer who under a collective-bargaining agreement can only ordinarily fire for just cause. From the record as a whole I find and conclude that Respondent President Wilson used his unproven specula- tion that Proulx had been distributing demeanatory litera- ture to the Company's customers as a pretext for issuing to him his written reprimand approximately 2 months after the event for engaging in union activity by distributing union leaflets at the Company's distribution center and for warning him therein that more serious action would be taken if he engaged in union activity. I further find and conclude that this act and conduct-by Respondent through its president is an unfair labor practice in violation of Section 8(a)(1) of the Act. D. Issues as to Alleged Surveillance of Union Activities on March 9 and 16, 1975 In the complaint, Shop Supervisor Antonio Pagliuco, Jr., commonly known and hereinafter referred to as Tony Pagg, is accused of engaging in surveillance of the union activities of Respondent's employees on March 9, 1975, at a Holiday Inn in Fort Lauderdale located within about three blocks of Respondent's distribution center, and again on March 16, 1975, at a second Holiday Inn, located at the nearby city of Tamarac, some 3 miles from Respondent's distribution center. The record is undisputed that a union meeting of Respondent's employees was held on Sunday, March 9, 1975, at the Holiday Inn in Fort Lauderdale near the Company's distribution center and that a second union meeting of the Company's employees was held on Sunday, March 16, 1975, at the Holiday Inn at the neighboring town of Tamarac. , - - The record is likewise undisputed that Pagg saw and/or was seen in the parking areas of the two motels by some of a later issue of the paper stated that French should not be called a "Goosie" as he was more like a vulture; a still later issue of the paper lampooned French and held him up to ridicule in doggerel verse as a goose and vulture 126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent's employees on the two Sundays here involved as they were entering or leaving one or the other of the two Holiday Inns. Pagg, a lower echelon supervisor, according to his credited and undisputed testimony, was under prior group instruction to-all supervisors by the aforementioned Personnel Director Waldschmidt, "not to interfere with any type of union meetings, whether to ask who are there or where they were at, just to stay clear of them and let them do their thing." Pagg, however, testified that on the Sundays of the two union meetings here involved he was not at either of the two motels for the purpose of surveillance but was at the parking areas of the two motels solely for the purpose of meeting and having his usual and customary Sunday rendezvous with his girl friend, Barbara Haynes, a hairdres- ser, who testified herein in corroboration of Pagg's testimo- ny. Their joint testimony shows that they are both divorced parents, that Pagg lives with his three minor children at a residence near Fort Lauderdale Holiday Inn, that Barbara lives with her two children -at a residence not far from Pagg's residence, that because of their children the only place they can meet at with any privacy is the Holiday Inn in Fort Lauderdale near Pagg's home and that they have had a rendezvous at the Holiday Inn on virtually -every Sunday in the past 2 years, including the Sundays of March 9 and- 16, 1975, here involved. Their testimony also shows that before having their usual Sunday evening trysts at the Holiday Inn near Pagg's home they spend their Sunday afternoons taking in social functions sponsored by an organization known as Parents Without Partners (PWP). When the PWP meeting ends about 5 p.m., Pagg and Barbara would go to their respective homes, presumably to feed their families, and then meet again at the Holiday Inn near Pagg's home around 8 p_m. Their testimony shows that after a drink at the Inn and perhaps a car ride they would spend the night or a portion thereof together at the Inn. Pagg testified that it was their custom to stay at the Holiday Inn near his home "because Mangurian has an account with Holiday Inn, and we get a discount rate year around, where the rates don't go up during season time." Following the union meeting that took place on Sunday, March 9, 1975, at the Holiday Inn near his home, Pagg heard that another union meeting of Respondent's employ- ees was scheduled for the following Sunday, March 16, but as he did not have a printed notice of the meeting he assumed it would, like the previous meeting, take place at the Holiday Inn near his home. For this reason and to avoid 12 Respondent's salesman, Robert Blackwell, is one of General Counsel's two witnesses who saw Pagg on the parking lot of the Fort Lauderdale Holiday Inn on the evening of Sunday, March 9, 1975, where a union meeting of Respondent's employees was being held. Blackwell testified that he saw Pagg standing in the parking lot of the Inn between two cars that night with, "A piece of paper [in his hand]. Whether it was an envelope, a pad, but there was something white papensh in his hand " Blackwell was about 30 feet from Pagg when he made this observation about 8 p.m. At the time he made the observation he did not see a pencil or pen in Pagg's hand. Heretofore mentioned salesman Proulx, the only other General Counsel witness who saw Pagg at the parking lot of the Inn about the same time of the evening as Blackwell saw Pagg, testified that he did not notice or see Pagg holding anything in his hand. Although Pagg was not questioned by counsel for Respondent as to whether he, as Blackwell testified, had "a piece of paper . . an envelope, or a pad in his hand" when Blackwell saw Pagg on the evening of March 9 at the Fort Lauderdale Holiday Inn and accordingly did even giving the impression of surveillance, Pagg and Barbara forewent their usual meeting place at the Holiday Inn in Fort Lauderdale and instead started their Sunday rendezvous of March 16 at the Holiday Inn at Tamarac, some 3 miles away. There on the parking lot of the Tamarac Holiday Inn, Pagg saw one of Respondent's salesmen, George Limbers, pull in with his car. Pagg's impression was that Limbers had mistakenly come to the Tamarac Inn for the union meeting, but nevertheless he and Barbara immediately drove to a restaurant across the street "just in case" as Pagg put it he turned out to be wrong in his belief that the union meeting for that night was to take place at the Fort Lauderdale Holiday Inn. After they had been at the restaurant across the street from the Tamarac Holiday Inn for a few minutes, Pagg believed that he saw Limbers' car leave the parking lot of the Holiday Inn. Pagg and Barbara then drove back to the Tamarac Holiday Inn but upon finding what they believed was Limbers' car was still on the Inn's parking lot, they decided that the union meeting was after all taking place at the Tamarac Holiday Inn. They thereupon pulled out and drove to the Fort Lauderdale Inn where they usually stayed and spent the night there. The record further shows that Pagg, mindful of Personnel Director Waldschmidt's instructions to Respondent's su- pervisors to keep away from any union activities of the Company's employees, made a special effort to avoid a rendezvous with his girl friend Barbara Haynes at their usual place of meeting on March 16, 1975, at the Fort Lauderdale Holiday Inn where the previous union meeting of March 9 had been held and where he believed the March 16 meeting would be held, by going to the Holiday Inn in Tamarac only to find that the union meeting was after all to take place there that evening contrary to his expectation. They thus, as noted, fled from the Tamarac Holiday Inn and drove back to the Fort Lauderdale Holiday Inn for their rendezvous.12 Discussion and conclusions Based primarily on Pagg's demeanor and also on the uncontradicted testimony of both Pagg and his girl friend, Barbara Haynes, that it has been their custom for the past 2 years to meet quite regularly at the Holiday Inn in Fort Lauderdale near Pagg's home on Sunday nights and more particularly upon their uncontradicted testimony about their rendezvous on Sunday, March 9, 1975, at the Fort Lauderdale Holiday Inn and about their aborted rendez- not deny Blackwell's testimony, I find Blackwell's testimony does not justify for a number of reasons an inference that on the evening in question Pagg was engaged in making a written list of Respondent's employees as he saw them that evening entering the Fort Lauderdale Holiday Inn. One reason for the refusal to make such an inference is that Blaackwell was obviously uncertain as to what he saw in Pagg's hand as he well could be as he was observing Pagg from a distance of 30 feet about 8 p m;, in early March when night was beginning to set in. Another reason for refusing the inference is that Blackwell did not see a pencil or pen in Blackwell's hand. A third reason for refusing the inference is that Proulx, who saw Pagg at the parking lot of the Inn about the same time that Blackwell did, testified that he did not see any writing material in Pagg's possession. Finally, the whole tenor of Pagg's testimony as to his customary Sunday night rendezvous with his girl friend at the Fort Lauderdale Inn and Pagg's demeanor shows that he was not at the Inn for purposes of surveillance of union activities and that the presence of a union meeting at the Inn was a fortuitous coincidence MANGURIAN'S, INC. 127 vous on Sunday, March 16, 1975, at the Holiday Inn in Tamarac, I fmd and conclude that Pagg's presence at the above dates and places was fortuitous and wholly unrelated to the union meetings then being held at the two motels and that accordingly there has been a failure of proof that Pagg by his mere presence at said times and places was engaged in surveillance of the union activities of Respondent's employees as alleged in the complaint. The above finding is in accord with the intimation, based primarily on demeanor, I made to counsel for General Counsel at the conclusion of the testimony upon inquiry as to my views on the surveillance issue. Thus the demeanor evidence and the record is pervasive that Pagg's presence in the vicinity of the two Holiday Inns while union meetings were held or were about to be held at the two Inns were merely fortuitous coincidences. General Counsel urges, in the event of an adverse fmding on the surveillance issue as made above, that a violation of Section 8(a)(1) should "nonetheless be found, since, in the circumstances presented herein, Pagg's conduct unques- tionably created an impression of surveillance," if not actual surveillance, "yet the Respondent took no action to disabuse the minds of the employees of the impression they might well have gained, to wit, that Pagg was present for the purpose of spying upon employees' union activities so that he might transmit knowledge of same to the Employer." Counsel for General Counsel as her only authority for that proposition cites a 1949 case by the Board in International Union, United Automobile, Aircraft & Agricultural Implement Workers ofAmerica, (CIO); (The North Electric Manufactur- ing Company), 84 NLRB 136, which merely adopts a Trial Examiner's decision on the proposition without any discus- sion thereon. I find that the facts and circumstances in the cited case are so wholly different than the facts in the within case that the present case is not controlled thereby. Additionally I fmd that General Counsel is not entitled to the alternate finding it seeks that Respondent "created an impression of surveillance" because there is no allegation to that effect in the complaint. 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 Mangurian's, Inc., is an employer en- gaged in commerce within the meaning of Section 2(6) of the Act. 2. The above-named Union 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 rights guaranteed in Section 7 of the Act, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 13 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. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that Respondent engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action of the type which is conventionally ordered in such cases as provided in the recommended Order below, which I find necessary to remedy and to remove the effects of the unfair labor practices and to effectuate the policies of the Act. Because of the character and scope of the unfair labor practices found, I shall recommend a broad cease-and-desist order. Upon the foregoing findings of fact and the entire record in this proceeding, I make the following recommended: ORDER13 Respondent, Mangurian's, Inc., its officers, agents, suc- cessors, and assigns, shall: 1. Cease and desist from: (a) Discriminatorily promulgating a no-solicitation rule, (b) Issuing written reprimands and threatening employ- ees with reprisals for engaging in union activities. (c) Threatening to close its retail furniture stores if the Retail, Wholesale and Department Store Union, AFL- CIO, or any other labor organization, became the represen- tative of its employees for the purpose of collective bargaining. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed to them by Section 7 of the Act. 2. Take the following affirmative action which will effectuate the policies of the Act: (a) Post at its distribution center in Fort Lauderdale, Florida, and at its various retail furniture stores in Fort Lauderdale, West Palm Beach, North Miami, and South Miami, copies of the attached notice marked "Appen- dix." 14 Copies of said notice, on forms provided by the Regional Director for Region 12, after being duly signed by Respondent's representative, shall be posted by Respon- dent Immediately upon receipt thereof at the locations noted above and be maintained at such locations by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are custom- arily posted.' Reasonable steps shall be taken to ensure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 12, in writing, within 20 days from the date of this Order, what steps Respondent has taken herein. IT IS ALSO ORDERED that paragraph 5(a) of the complaint be dismissed for failure of proof. 14 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."