Roy's Carpet Land, Inc.

ROY'S CARPET LAND 253 Roy's Carpet Land, Inc. and Retail Employees Union, Local 1459, Retail Clerks International Associa- tion, AFL-CIO. Case 1-CA-11452 February 16, 1977 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND WALTHER On December 9, 1976, Administrative Law Judge Nancy M. Sherman issued the attached Decision in this proceeding. Thereafter, the Respondent filed exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and has decided to affirm the rulings, findings, and conclu- sions 1 of the Administrative Law Judge and to adopt her recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, Roy's Carpet Land, Inc., Springfield, Massachusetts, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. ' Contrary to the remedy recommendations of the Administrative Law Judge, Member Walther would relegate to the compliance procedure the issue as to the number of salesmen needed by Respondent during the backpay period or portions thereof. DECISION STATEMENT OF THE CASE NANCY M. SHERMAN, Administrative Law Judge: This case was heard at Boston, Massachusetts, on July 29 and 30, 1976, pursuant to a charge filed on February 18, 1976, and amended on March 2 and April 6, 1976; and a complaint issued on April 9, 1976. The questions presented are whether Respondent Roy's Carpet Land, Inc., (a) violated Section 8(a)(1) of the National Labor Relations Act, as amended (herein called the Act), by threatening and interrogating about activity on behalf of Retail Employees Union, Local 1459, Retail Clerks International Association, AFL-CIO (herein called the Union; (b) violated Section 8(a)(3) and (1) of the Act by laying off employees Peter Cowles, Fredrick Baxter, Philip Buscemi, and David Kane to discourage union activity; and (c) violated Section 8(a)(5) and (1) by refusing to bargain with the Union under circumstances calling for a bargaining order. 228 NLRB No. 43 Upon the entire record, including my obseraation of the witnesses, and after due consideration of the helpful briefs filed by Respondent and by counsel for the General Counsel, I make the following: FINDINGS OF FACT 1. JURISDICTION Respondent, a Massachusetts corporation with its princi- pal office and place of business in Springfield, Massachu- setts, is engaged in the retail and wholesale sale and distribution of carpet and related products. Respondent annually purchases goods valued at more than $50,000 from points outside Massachusetts. I find that, as Respon- dent admits, it is engaged in commerce within the meaning of the Act, and that assertion of jurisdiction over its operations will effectuate the policies of the Act. The Union is a labor organization within the meaning of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Ernest Roy, Jr., who is Respondent's president, originally ran the business as a sole proprietor. Roy testified that the business was incorporated about 1972, and Respondent's answer admits its corporate status, but no articles of incorporation have ever been filed. Until about June 1974, the business occupied only a 4,000-square-foot crudely heated warehouse. The staff then consisted of Company President Ernest Roy, Jr., his wife and family, and one employee. Roy testified that business was "good" in 1972 and 1973. About early 1974, Roy and his wife Jane purchased the building which Respondent has occupied at all times since about June 1974. The Roys made this purchase at least in part because they believed that the building was a good buy, entirely apart from considerations relating to Respon- dent's business. In order to obtain a mortgage on the building, the Roys had to obtain a tenant who would pay the same rent as the previous tenant. Accordingly, and because Respondent's first landlord had increased the monthly rental to $1,000 from $300, Respondent leased part of the building from the Roys at a monthly rental of $2,500. After moving into the new building, Respondent engaged in retail sales, in which Roy had little or no previous experience, as well as continuing its wholesale business. At the time of the hearing, in July 1976, the portion of the building not occupied by Respondent was still empty. In consequence of the lease, the square footage occupied by Respondent's business more than quadrupled, and Respondent needed additional personnel to cover the premises. After the move to the new building, Respondent's telephone bill, which had been about $100 a month for one telephone, increased to $400 a month for six telephones. When testifying in connection with the mid-1974 move, Roy testified, "Ms present building had so much space that my operating costs increased approximately 10 times that it had been in the other location." He further testified, "Because of the drop of business and the fact that the economy was generally poor at that time [in mid-1974] .. . 254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD even though my cost of operation went up to say 10 times, my gross sales were approximately the same ." Roy also testified that business "was not too bad" in 1974. Respon- dent's 1975-76 business is discussed infra. B. The Hire of Peter Cowles Most of Respondent's retail sales of floor covering are "closed" during evening hours or on Saturdays , when both the husband and the wife are able to come to the store. Prior to early January 1976 ,1 Respondent's store was open until 9 p.m. every evening but Wednesday . About early January, when Respondent had only two salesmen in its employ, Roy told salesman Buscemi that Roy planned to hire another salesman so that Respondent could remain open on Wednesday nights and could handle increased business, including an increase which Roy anticipated from a new advertising campaign. On January 15, Roy hired a third salesman, Peter Cowles, with whom Roy had had previous contacts when Cowles was working for other floor covering establishments and when he operated his own floor covering store. Roy and Cowles agreed that Cowles was to work on a commission basis, either 7 or 9 percent, for about 3 weeks, at which point Roy expected business to improve as people started to receive their income tax refunds . Thereafter, Cowles was to make between $ 100 and $150 a week plus 5- to 7-percent commission. Cowles was to work Monday through Thurs- day from just before lunchtime until 9 p.m., and on Saturday from 9 or 10 a.m. until about 5 p.m 2 When Cowles received his first paycheck, he pointed out to Roy that no taxes had been taken out, and said that Cowles was going to have to turn the stub in to the unemployment compensation office to establish his entitle- ment to partial unemployment compensation.3 Roy replied that the failure to deduct taxes was "all right." The following week, Cowles told Roy that a representative of the unemployment compensation office had told Cowles that Roy would have to deduct taxes from Cowles' paycheck. Roy replied that to avoid "hassle with the I All dates hereafter are 1976 unless otherwise stated. 2 My findings in this paragraph are based on Cowles' testimony. Roy's testimony that Cowles was originally hired to work about 12 hours a week and on a straight 7-percent commission gains some support from the fact that he was paid a straight 7-percent commission each of the 5 weeks (although 2 were partial weeks) he worked, and the evidence that Cowles covered Baxter's hours during 5 to 7 days when Baxter was out sick; Baxter's day off was Tuesday, and his union card avers that he worked the day shift, 48 hours a week. However, Roy's version gives no explanation for Cowles' action (testified to by Roy), during Cowles' last week of employment, in submitting a wage claim based on $ 100 a week plus a 5-percent commission, which claim Roy rejected (by his own testimony) because the other salesmen were on salary. Further, Cowles' demeanor impressed me much more favorably than did Roy's. Moreover, Cowles' testimony gains some support from (1) the entries on his union card, which he filled out at a time when he had no conceivable reason for falsification; (2) Buscemm's testimony, partly support- ed by Cowles' commission statements, that when preparing these statements Buscenu left the commission rate blank because Cowles "would tell me one week it was 7 percent. The next week was 9, 1 never knew"; and (3) Cowles' testimony that after being hired on Wednesday, January 15, he worked 3 days and a total of about 28 hours the first week, 5 days and a total of about 32 hours each of the 2 subsequent weeks, and 4 days and about 42 hours his last week, on Friday of which he was terminated. The only other record evidence bearing on Cowles' work schedule is his commission statements, which credit him with sales on Friday, January 23, and Friday, January 30, even though he denied working on Fridays. Perhaps Cowles was credited unemployment office" he would make the check out to Cowles' wife, and did so. Cowles, who needed the money badly, accepted this check and left .4 C. The Union Organization and the Bargaining Demand With Cowles' hire, Respondent's employee complement consisted of three salesmen (Cowles, Buscemi, and Baxter) and a warehouseman, Kane. All but Cowles were salaried .5 They were relatively satisfied with their wages and felt they were well treated, but were annoyed because they frequent- ly had no meal breaks, their paydays were unpredictable, and Respondent had no fixed sick leave policy. The employees discussed these problems among themselves and decided that they should call a union. The older employees asked Cowles to call, and he said, "Okay ... I'm not afraid to call the union." Cowles suggested a call to the Teamsters Union, which said it had a long waiting list and referred the employees to the Retail Clerks, the Union herein. Thereafter, between January 28 and 30, Cowles tele- phoned Union Secretary-Treasurer Richard Cutshaw and arranged for a meeting on February 2. All four employees attended. Cutshaw passed around authorization cards, read them aloud, and asked the employees if they had any questions. So far as the record shows, none of them did. Cutshaw explained that the Union used the authorization cards for two purposes; namely, to know where to reach the employees, and to prove to the Employer that the Union represented a majority of the employees in order to induce him to recognize it as their bargaining agent. Cutshaw told the employees that the Employer was not supposed to know who signed the cards, and that any card check to determine the Union's majority status would be made by a disinterest- ed third party. Cutshaw further said that, if the Union demanded recognition and Respondent declined, the Union would then ask the Board for an election, which the with sales which other salesmen closed with customers initially contacted by Cowles. In any event, Friday work by Cowles would not shorten his workweek. 3 Cowles was anxious to "make sure that everything [was ] strictly up and up" regarding his taxes, because he feared that if he got into further tax trouble the Internal Revenue Service might attach his house to collect taxes he already owed. 4 My findings in the last two sentences are based on Cowles' testimony Roy testified that he made out his check to Mrs. Cowles because Cowles, without volunteering or being requested to give an explanation, asked him to Respondent contends in its able brief that Roy should be credited because a paycheck not made out to Cowles would have enabled him to receive full rather than merely partial unemployment compensation, whereas Roy would allegedly have benefited by a check to Cowles in that Roy could have made tax deductions therefrom and retained them for a while. However, Roy conceded that Cowles told the unemployment compensation authorities that the check to Mrs. Cowles represented his earnings. Moreover, once Roy reported to Federal authorities (as he had not yet done) that deductions of any sort were being made from Cowles' paycheck, these authorities would have been put on notice that Respondent itself owed social security taxes based thereon. On balance, and after considering the witnesses' demeanor, I credit Cowles. 5 Buscemi credibly testified that, when he was hired, he was guaranteed a particular salary but was also promised a percentage of gross sales if that percentage exceeded the guarantee (see infra). So far as the record shows, he received only his salary. ROY'S CARPET LAND 255 Union would try to expedite. All four employees signed union cards at that meeting.6 On February 5, Cutshaw came to the store with Union President Joseph DiFlumera. Three of the employees (Cowles, Buscemi, and Baxter) were at their desks. Kane was in the warehouse.T After Cutshaw introduced DiFlum- era to the employees, Baxter used the internal telephone system to call Roy out of his office. Mrs. Roy was there in the office, where the Roys were having a rather unpleasant discussion about their family problems and their and Respondent's financial problems. Upon receiving Baxter's call, both Roys came into the showroom. DiFlumera then said that he and Cutshaw were from the Retail Clerks Union, that the Union represented a majority of the employees, and that DiFlumera wanted to sit down and discuss the matter with him. Roy turned to Mrs. Roy and said, "You'd better shut the door, lock the place up, we're shutting down." DiFlumera then cautioned Roy to be careful about what he said, that there were things that were illegal for him to say at that point, especially in the employees' presence. DiFlumera advised Roy to get a labor attorney. DiFlumera stated that the Union was prepared to prove its majority through an impartial party if manage- ment desired, reached into his coat, and started to take the employees' union cards out of his pocket. Roy grabbed them from DiFlumera's hand and started to read the names off the cards. When he came to "Peter Cowles," Roy threw Cowles' card on the floor and said that he was not an employee. DiFlumera again cautioned Roy to watch what he was saying because he was violating certain laws, and again advised him not to say anything else without representation from a good labor lawyer. At this point, Roy said that he had nothing against unions, that he himself had once been a union member, and that he thought something could be worked out without any problems. DiFlumera and Cutshaw said that they would return shortly to give him a 6 The cards read, in part: Retail Employees' Union Local 1459 s s • s Authorization for Representation Desiring to enjoy the rights and benefits of collective bargaining, I hereby authorize Retail Clerks International Association, AFL- CIO, or its chartered Local Union to represent me for purposes of collective bargaining , respecting rates of pay, wages, hours of employ- ment, or other conditions of employment, in accordance with applicable law r My findings in the last two sentences are based on the employees' and Roy's testimony . Cutshaw's direct testimony was consistent with theirs. I believe he was mistaken in testifying on cross-examination that Kane was there and Cowles was not. 8 My findings in this paragraph are based on the mutually corroborative testimony of Cutshaw and the three employees. For demeanor reasons, I credit Roy's version of this visit only to the extent that it is corroborated by the other witnesses. More specifically, I do not credit Roy's testimony that he did not grab the cards from DiFlumera; or that during this visit Roy said he needed only two men unless the salesmen agreed to go on commission, DiFlumera said Roy could not lay anyone off, the union representatives met letter of recognition (whose meaning they explained to him) for his signature. The union representatives then left the store.8 The union representatives then returned to the union office and had a demand for recognition 9 and a recognition agreement typed up. Approximately 1-1 /2 to 2 hours after their first visit, they returned to the store. Roy asked them to come into his office, where he introduced them to his wife. After saying hello, she stood on the other side of the room with her back to the others. The union representatives gave the demand letter and the recognition agreement to Roy. Roy said that he had family and other problems at the time, that his wife was not happy about the Union, that she owned the building where Respondent's operation was located (without mentioning Roy's coownership), and that she was going to leave him if he recognized the Union. Mrs. Roy then "stormed" out of the office. Roy asked the union representatives if they "couldn't possibly come back in a year or so." DiFlumera said no, that the Union wanted to be recognized at once. Roy continued to elaborate on his personal problems. DiFlumera said that the union repre- sentatives could not stay there all day, and asked Roy to telephone the next morning to give his decision. Roy agreed. As the union representatives left Roy's office, DiFlumera held his hand against Roy's head, as if DiFlum- era were holding a gun, and said, "This is like we've got a gun at your head and we're playing Russian roulette and you never know when the shot's going to come, we're pulling the trigger." to Roy and the union representatives appeared to be in a jovial mood, and everyone there laughed." Roy never kept his promise to telephone the Union about the proposed recognition agreement. Either just before or just after the union representatives left, Mrs. Roy told Cowles that she was "very upset" at what he "did to" Roy. Cowles replied that the employees were trying to get regular with the Roys in the office and outside the employees' presence , and the union representatives offered to permit a layoff in a few months if Respondent would recognize it at once and business continued to be poor. Nor do I accept Respondent's contention that initially Roy did not know why the union organizers were there, and thought they might have had something to do with the Division of Employment Security and Cowles' collection of unemployment compensation funds. Roy testified that DiFlum- era began by saying that "he represented the fellows " 9 The demand for recognition stated: This is to advise you that we represent a majority of your employees employed at your State Street, Springfield, Mass. location, for the purpose of collective bargaining and other conditions of employment. We hereby request that you meet with us in order to negotiate a mutually acceptable agreement with respect to all full time and part time employees as defined under the National Labor Relations Act. We are prepared to prove our majority status by a show of cards authorizing us to represent your employees. io My finding in this sentence is based on Baxter's testimony, to some extent corroborated by Roy. In view of Baxter's testimony on redirect examination that DiFlumera made these remarks after leaving Roy's office, which on the credited testimony DiFlumera entered during the second visit but not the first, I do not believe Baxter's testimony on cross-examination or Roy's testimony that this conversation occurred during the first visit. ii This finding is based on Baxter 's testimony. In view of such credited testimony, I do not credit Roy's uncorroborated testimony that he replied, "My wife's got a gun. I have some tax problems. And my creditors So you've got four guys with guns to my head I don't give a God damn who pulls the tugger for it I'm just fed up with the whole damned thing ... can we get away from my wife and see if we can do something here?" Roy testified that DiFlumera's remarks were "theatrical" and "I didn't take it as a threat " 256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD paydays, regular lunch periods, and a health program. Mrs. Roy replied, "I'll never speak to you again as long as I live." Cowles replied, "Well, that's fine by me." Thereafter, and at some time before 7:30 a.m. the following morning, February 6, Roy changed the locks on the doors. In consequence, employee Kane, who had been opening up the store with his own key at 7:30 a.m., could not begin work until 8 a.m. Also on February 6, Roy went to the office of his then attorney, Samuel Thompson. Thompson told Roy to refer DiFlumera to him, and said that he was going to Miami "momentarily." According to Roy, Thompson told him not to discuss "labor things with the people" and (in order to avoid charges of discrimination against a particular person) not to lay off anyone unless he laid off everyone and operated the business as a "family business." Still according to Roy, Thompson adhered to this advice even after Roy told him that he had planned on cutting back to two people unless he could get his employees to work on a commission basis, and could not physically operate the store with his family alone unless he shut half the place down-which Thompson said he could not do either. That evening, Roy removed from Respon- dent's premises the daily sales records kept by Buscemi (see infra), and told Buscemi to stop keeping them. On February 9, when advised that Mrs. Roy wanted Roy to telephone her, he told employees Cowles, Buscemi, and Baxter that Roy had "problems," that if he took the Union his wife would leave him, that if he did not take the Union "you guys" would leave him, and that he "should pack it all up and go to the islands . . . ought to just sell this place and get out from under it." Cowles said, "If you're going to sell would you at least give us a shot at buying it?" Roy agreed to talk about the matter in his office. As the group walked toward the office, Roy remarked, "You know, you guys really gave me the shaft when you brought the Union in here." Baxter asked, "What do you mean ... how did we give you the shaft? . . . We're not trying to hurt you." Roy replied that the employees should have come to him, and they could have worked out their problems without the Union. Roy further said, "I might as well sell the business and get out of this thing." During an ensuing discussion, it quickly transpired that the employees could not meet Roy's asking price.12 On February 10, 1976, the Union filed a representation petition with the Board, stating, inter alia, that it had received no reply to its February 5 bargaining demand. By letter dated February 9, attorney Thompson, on Respon- 12 My findings in this paragraph are based on the employees' mutually corroborative and credited testimony . Roy testified that they discussed selling the business to the employees. He was not asked whether the Union was mentioned during this conversation. 13 My finding that the Ranch House conversation occurred on Wednes- day, February 11, is based on Cowles' testimony Roy accepted the suggestion of Respondent's counsel that this conversation occurred during the week of February 2, and testified that it took place about 9 p.m. on Wednesday, which would have been February 4. Cowles testified that on February 4, he worked "alone," that Union Representatives DiFlumera and Cutshaw came in "that night" to see Roy, that they waited an hour or more, and that Roy did not come in that night. Cutshaw testified that he had told the employees that DiFlumera (who unexplamedly did not testify) and he would "hopefully" visit the shop on February 4 "but we didn' t make it." However, I regard Cowles' recollection as superior to Cutshaw's. According- ly, I regard Cowles' testimony about the union representatives' February 4 visit, which testimony was given in a context unrelated to the date of the dent's behalf, refused to recognize the Union, on the ground that Respondent questioned the Union's majority and the appropriateness of the unit and rejected the idea that authorization cards are a reliable method of determin- ing whether the employees in fact want a bargaining agent. D. Cowles' Separation Cowles was the only employee who worked in the store on Wednesday evening, February 11. Roy came in about 7 p.m. After the store closed that evening, Roy asked Cowles to have supper with him. Cowles agreed to "shoot the breeze," but said he could not stay very long. The two then proceeded to a nearby restaurant, the Ranch House, where Roy alone ordered supper.13 Cowles told Roy that the employees had not wanted to cause him any harm by bringing in a union, that all they wanted was a health plan and written specifications regarding their dinner hours, their off days, and their payday. Roy said, "You know, if you hadn't sided in with those guys you'd have been the head man over there," that Roy "could have got rid of the other three employees. Cowles indicated that he did not want the others to lose their jobs. Roy said that he had tried to get Buscemi to agree to a basic salary plus commission, that Roy wished all the salesmen were being paid on this basis, and that the salaried salesmen were getting far too much money for the work they were doing. Roy went on to say, "They're going to be surprised Friday when I give them a layoff slip." 14 Roy testified that at this time he believed Baxter to be the leader in the union movement. Roy credibly testified that during the last 2 weeks in January he had unsuccessfully tried to induce salesmen Buscemi and Baxter to agree to go on a straight 8-percent commission. Under the arrangement then proposed by Roy, these two employees would be guaranteed to a "draw" equal to their previous salaries, but, if at the end of 3 months their commission failed to equal their "draw," Roy would not take anything back from them but would have the option of laying them off. On Thursday, February 12, Roy gave the Union's February 10 representation petition to attorney Thompson. According to Roy, the following conversation occurred: Roy said that for financial reasons he wanted to cut back on his help and work "with family." Thompson told him that it was "very important" not to change his "count," because, if he did so, it would be misunderstood as discrimination against a particular person because of his Ranch House conversation, as providing some support for Cowles' credited testimony regarding the date. 14 My findings as to the substance of the February II Cowles-Roy conversation are based on Cowles' credited testimony and on credited portions of Roy's testimony. Roy testified that he told Cowles that, if the other salesmen agreed to be paid on a commission basis, Cowles' commission rate would be increased, but that, if the employees did not so agree, Roy would probably lay off Baxter and/or Buscemi the following Friday. As indicated in the text, I believe Roy's testimony that he said that he wished all the salesmen were being paid partly on a commission basis. Moreover, Roy's testimony to some extent corroborates Cowles' testimony that, during this conversation and the February 13 interview discussed infra, Roy first impliedly and then expressly asked Cowles to try to persuade the other salesmen to accept a salary-plus-commission basis. For demeanor reasons, I credit Cowles' testimony about the February II interview in its entirety, and Roy's only to the extent indicated. However, the result herein would be the same even if I credited Roy's testimony summarized in this footnote. ROY'S CARPET LAND union activities. Thompson said, however, that he could lay off everybody, or shut down the whole building. The next day, February 13, which was the regular payday and Cowles' day off, Cowles came to the store for his paycheck. Roy asked whether he had asked the other employees to agree to accept, like Cowles (supra, fn. 2), a basic salary plus commission. Cowles replied, "That's not for me to discuss. That's between you and them." Roy replied, "Well, if you didn't discuss it with them, I'm not going to pay you unless they take the same thing." Roy then went out the front door. Cowles told Susan Roy, who is Roy's daughter and Respondent's treasurer, to tell Roy that Cowles was going to have his paycheck even if he had to go to the "Labor Board" to get it (see infra). Cowles said, "He's got no right to hold up my paycheck because he didn't settle with the other guys." Cowles then left the store. About 5 p.m. that same day, Cowles telephoned Roy and asked whether he could get his check right away. Roy told him to come on over. When Cowles arrived, Roy said, "The accountant says my overhead's too high, I've got too many guys on the payroll . . . I've got to lay off somebody. I'm coming down to the brass tacks. I just can't keep all this overhead up." Cowles asked whether he was the one to be laid off, and Roy replied that he was. Cowles then looked at his check, which had been all made out when he arrived, and noticed that 4 weeks' deductions (totaling about $94) had been taken out, leaving a net pay of about $59. When he resentfully asked about these deductions, Roy told him that he was being laid off because of "all the trouble I'm having with the Labor Board guy," referring to the unemployment compensation office, "and all this union stuff." Roy further said, "The lawyer told me I could take it out once a month at the end of the month and I'd be covered." Cowles asked, "How am I going to go home and give this check to my wife? You wiped it out." Roy offered to lend Cowles $100, but he refused. As Cowles went to the door, Roy asked, "By the way, seeing as how you're leaving, who started the Union?" Cowles said, "You did, a long time ago," and walked out. My findings as to the February 13 conversation between Cowles and Roy are based on Cowles' credited testimony. Roy testified that Cowles quit on the evening of February 13 because he was angry when he saw the 4 weeks' deductions from his paycheck that day. For reasons discussed infra, I credit Cowles. E. The Layoff of Buscemi, Baxter, and Kane On Saturday, February 14, the day after Cowles' separa- tion, the store was open as usual . The store was closed on Sunday, February 15, as usual , and also on Monday, February 16, because of Washington's Birthday . When Roy came in at 8 a.m. on February 17, he found that Respon- dent had not yet received certain padding which it needed before it could install any carpeting that day. Roy drove up to the Springfield warehouse of Eastco , from which he had ordered the padding. The Springfield personnel told him that, because of Respondent's poor credit, it could not deliver any padding to Respondent on credit without the 257 approval of Eastco's Boston office, which was not yet open. At 9:30 a.m., Roy returned to the store without the padding. Employee Kane and Company Vice President Susan Roy had gone with Roy to the warehouse in another vehicle. When the three returned to the store, Buscemi was waiting in front of the door. Roy unlocked the door and Kane started to turn on the lights. Roy said that because of the "hornet's nest" the employees had created by joining the Union, causing him extensive legal fees from the unioniza- tion campaign and lack of credit which had prevented him from obtaining padding that morning, he was laying off all the employees.15 Buscemi then said that he wanted his check and his layoff slip. Roy said that he would have them made out and would send them to the employees. Buscemi said that he wanted his now. Buscemi also telephoned employee Baxter that the three employees had been laid off, and that Buscemi would bring Baxter his check if he would tell Roy to give it to Buscemi. Baxter did so. Roy then made out all three checks, gave Kane his check, and gave Buscemi the remaining checks. Roy said that his accoun- tant had the layoff slips. The checks to Baxter and Kane, covered their full salary for the current week. Kane and Buscemi then went to Baxter's house and gave him his check. Buscemi told Baxter that Roy had said not to open up the store because "You guys have stirred up . . . a hornet's nest with this union thing and you're laid off." The three employees then went to the office of Roy's accountant and asked for their layoff slips, but the accountant knew nothing about them. Then, the employees went to the unemployment compensation office. Roy kept the shop open that day, and later that afternoon went back to Eastco and got some padding. Cowles had tried to reach Union Representative Cutshaw on February 14 about Cowles' February 13 separation, but they were unable to speak with each other until February 17. Cowles told Cutshaw that he had gone into work and been laid off, and that Roy had given him a "number of reasons . . . that [Roy] couldn't afford him and that because of the union this had caused a number of problems." Also on February 17, Buscemi and Kane telephoned Cutshaw separately. Each of them said that, that morning, Roy had told them that they had created some problems for him and that he was letting them go because of the Union. Later that day, all three employees came down to Cutshaw's office. Cutshaw credibly testified that one of the three who had been laid off on February 17, he could not remember which, told him that Roy had said that Cutshaw created this "hornet's nest" for Roy, that he had problems with the IRS and with his wife and the Union, and that Roy was letting the employees go because of the Union. On the following day, February 18, the Union filed its initial charge herein, alleging that Respondent had discharged its employees for their activity on behalf of the Union and because they had filed a representation petition with the Board. This charge was not received by Respon- dent until February 19. Roy testified that, on February 18, he received a telephone call from a man who identified himself as Jeffrey 15 My findings about what Roy said on this occasion are based on a composite of Buscemi's and Kane's testimony. Susan Roy did not testify Roy's version is discussed infra 258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Jankot, a Board employee who was at one point assigned to handle the representation case. According to Roy, the following conversation occurred : His caller asked what Roy was doing. Roy replied that he was up to his ears in trouble, his attorney was away, and Roy had laid off everybody. The caller asked why Roy had laid off every- body. Roy replied that his attorney had told him, "You cannot lay off-you cannot change the count." The caller asked whether Roy could run the place by himself. Roy replied that he could not, but could "survive" with two people. The caller then said, "Well, in that case, call back the two people with the most seniority." The caller asked about pay. Roy replied that the employees had not yet lost any pay. The caller said to call the two back right away, and the result would be in essence the same as if he had laid off the employees with the least seniority. On the evening of February 19, Susan Roy asked Kane to return to work. On the morning of February 20, he did so. Baxter was not at his home on February 19. On February 20, Roy telephoned him and said, "I would like you and Dave [Kane] to comeback to work. . . . It doesn't have to be you and Dave.... My position is that I can't afford to have the four of you. That I can have any two of you, and those two could be Phil [Buscemi] and Pete [Cowles]...." Roy further said that "it could be any combination, but he thought that he needed Dave because he needed [David] to run the forklift truck, and he needed one salesman, which could have been one of the three of [them], and he thought that since Dave and [Baxter ] had the most seniority, that unless [they] wanted to be martyrs, [they] should be the ones that should go back." Baxter returned to work on February 21. Buscemi and Cowles had less seniority than Kane and Baxter. Roy testified that at this time he would rather have recalled Buscemi instead of Baxter because Roy believed that Baxter was the "troublemaker" who had brought in the Union. About noon on February 25, Cutshaw, Buscemi, Cowles, and Union Business Agent Scott Macey came to the store with the hope that they could talk to Roy. Baxter was the only one present in the store. Cutshaw said that he was there to see Roy about a "recognition agreement," and, if Roy refused, Cutshaw was going to set up a picket line in front of the store. After a few minutes, Kane and Susan Roy, who had both been out buying lunch for all three shop personnel, returned to the store with the three lunches. Kane went out to the union representatives ' car, which was parked in front of the store, and began to eat his lunch in the car.18 Cutshaw walked into the store, where Baxter and Susan Roy had taken their lunches, and told her that they were going to begin to picket because of the unfair labor practices in which Buscemi was let go and not taken back, and that they wanted to talk to Roy. She said that he was out of town. Cutshaw then told Baxter, "We're going out to picket. . . . Are youjoining us?" Baxter replied that he was first going to finish waiting on his customer. Cowles, Buscemi, and the two union representatives then began to picket the store with signs saying, "On Strike." After waiting on his customer, Baxter left the store with his lunch, and joined Kane in the car. A few minutes later, Susan Roy 16 The weather was unseasonably warm. i1 This charge, which alleged 8(b)(IXA) violations, was later dismissed. turned the lights off, locked the door, and, her lunch still in her hand, went to her car and drove off. After finishing lunch, Kane and Baxterjoined the pickets. After picketing for an hour or two, the pickets arranged for periodic checks to see if the store had reopened for business and, therefore, picketing should be resumed. The union representatives and the employees then drove off. On the following day, Cutshaw, Baxter, and probably others drove up to the store. It was closed, no customers were there, and the inside of the windows had been covered with wrapping paper. They nonetheless picketed until early afternoon. The next day, February 20, the store was still closed and papered up. They picketed for about 2 hours. On February 28, Baxter and Kane came to the store for their paychecks. The windows were still papered over, but the door was open. Roy told them that he and his father were going to Israel for a couple of weeks and that he would like Baxter and Kane to return to work. They replied that they would like to wait and see what happened at the "hearing" on the Union's representation petition. This "hearing" (in fact, a conference) was held on March 2. The petition could not be processed because of a charge filed that day by Respondent herein against the Union.17 A day or so later, Roy telephoned Baxter and asked whether he and Kane had decided to come back to work. They returned a few days later.18 By letter dated May 4 the Union requested withdrawal of its representation petition. By letter dated May 7 the Regional Director advised Respondent that he had ap- proved the withdrawal without prejudice. At the time of the July 1976 hearing, Baxter was still working for Respondent. Kane was laid off on June 25. Respondent told him that he was being laid off for lack of work, and the complaint does not allege otherwise. In March 1976, Respondent rehired Roy's son, who had previously worked for Respondent, in order to enable him to get out of jail. He was working 50 hours a week at the time of the July hearing. At the time of the hearing, Respondent employed no salesmen on a commission basis, and the only nights it was open were Thursday and Friday. F. Analysis and Conclusions 1. The alleged independent 8(a)(1) violations I fmd, in agreement with the General Counsel, that Respondent violated Section 8(a)(1) of the Act (1) on February 5, when Company President Roy said in the employees' presence, upon being advised that the Union represented a majority and wanted to discuss the matter, that Mrs. Roy had "better shut the door, lock the place up, were shutting down"; (2) on February 13, when Roy told employee Cowles that he was being laid off partly because of "all this union stuff'; (3) on February 17, when Roy told employees Buscemi and Kane, upon laying them and Baxter off, that he was laying them off because of the "hornet's nest" the employees had created, as to legal expenses and lack of credit, by joining the Union; (4) when Roy asked Cowles, immediately after his February 13 termination, who started the Union; and (5) on February 5, 18 Because of health problems of Roy's mother, at the very last minute Roy decided not to go to Israel. ROY'S CARPET LAND when Roy seized the union authorization cards from Union Representative DiFlumera and, in the employees ' presence, read the employee signatures thereon . In fording that Roy's interrogation of Cowles violated the Act, I note that such interrogation immediately followed Roy's unlawful asser- tion that Cowles was being terminated because of "all this union stuff," that Respondent had no legitimate reason for seeking the identity of the employee who started the Union, and that Cowles gave an evasive reply. In fording that Respondent violated the Act by seizing and inspecting the employees' union cards, I note that Roy grabbed them after the Union offered to prove its majority through an impartial third party; that when inspecting them he deprecatingly singled out the card signed by Cowles and later selected him as the first employee to be laid off for union activity ; and that, just before seizing them, Roy had threatened to close down the shop because the employees had joined the Union.19 In view of the factual context, I also agree with the General Counsel that Respondent violated Section 8(a)(l) when Roy told the employees, on February 9, that they had given him "the shaft" by going to the Union rather than talking to him about their problems . I regard this denigra- tion of their union activity as constituting an implied threat of retaliation therefor, since Roy made this remark while discussing the possible sale of Respondent's business, and a few days after threatening to shut down the shop because the Union had organized it.20 2. The alleged unlawful terminations a. Whether Cowles' separation was a layoff or a quit As previously noted, Roy denied Cowles' testimony that on February 13 Roy laid off Cowles, and testified, instead, that on that date Cowles quit because of anger at the 4 weeks' deductions from the paycheck received that day. In contending that I should credit Cowles and discredit Roy, the General Counsel relies on, inter alia, the following evidence: (1) Cowles' paycheck, which was admittedly ready when he came to pick it up on Friday, February 13, included Cowles' commission on carpeting which had been delivered and paid for on Thursday, February 12, even 19 Employee Baxter credibly testified that he particularly remembered Roy's taking the cards from DiFlumera because, when the employees signed cards, they had been told that the Employer was not supposed to know who signed the cards; that if the Union's representative status was challenged the signatures would be checked by a policeman, a priest, or an arbitrator; and that the cards were "secretive" and "a confidentiality." 20 See Ram, Inc., 218 NLRB 430, 433 (1975); Mademoiselle Shoppe, Inc., 199 NLRB 983, 987 (1972). 21 When asked on cross-examination, "But you laid off four men, didn't you?" Roy replied , "I laid off four men. I laid off three men and Mr. Cowles quit." 22 Cutshaw's testimony about Cowles' picketing is undemed, although the picketing was observed by Company Treasurer Susan Roy , who is Roy's daughter. 23 The General Counsel also seeks to make something of Roy's failure to recall Cowles after learning that Cowles at least thought he had been terminated. However, such conduct by Roy is not inconsistent with Respondent's basic position that by the time Roy consulted attorney Thompson on February 6 Roy had decided that for economic reasons he wanted to reduce Respondent's work force. 24 Although Roy admittedly laid off three employees a few days later, these comprised his entire remaining work force and, according to Roy, 259 though a Friday paycheck usually covered items which the. customers had paid for during the week ending the preceding Wednesday ; Roy had seen a preliminary draft of Cowles' commission statement that week (supra, fn. 2) but his paychecks were based on commission statements prepared by Buscemi, not Roy; (2) all the taxes which should have been taken out previously were deducted from that paycheck, consequently diminishing it by 60 percent; however, Cowles had previously asked Roy to deduct payroll taxes; (3) Baxter testified without contradiction that when telling him after the February 17 layoffs that any two employees could return to work , Roy mentioned Cowles by name and did not distinguish between him and the three who were admittedly laid off; 21 (4) Cowles participated with the other employees in picketing the store on February 25; 22 and (5) Cowles had a family to support, was being harried by creditors which included the Internal Revenue Service, and badly needed a job. Some further support for Cowles' version of the February 13 conversation is provid- ed by Cutshaw's testimony that, on February 17, Cowles said that he had been laid off and impliedly requested the Union's assistance in getting his job back ; the Union filed its first charge herein on the following day.23 In urging me to credit Roy, Respondent relies on (1) Roy's undenied testimony that immediately after the February 13 interview he told Buscemi that Cowles had quit; (2) Cutshaw's February 25 statement to Susan Roy that the Union was picketing "because of [Respondent's ] unfair labor practices by letting Phil Buscemi go," without mentioning Cowles; (3) Cowles' initial denial (promptly retracted) of a debt owed Respondent upon the bankruptcy of a corpora- tion owned by Cowles ; (4) the alleged unlikelihood that Roy, even though he had been a business acquaintance of Cowles' for some years, would offer to lend him $100 immediately after laying him off because he had joined the Union; (5) Roy's testimony that on February 6 and 10 attorney Thompson advised him that, because of the Union's presence, he should not lay off any individuals; 24 and (6) Cowles' refusal to authorize Roy to obtain Cowles' unemployment compensation records from the Massachu- setts Division of Employment Security, which will not release them without the employee 's consent.25 From this last item, Respondent tenders the inference that these Thompson had told him that he could lay off his entire employee staff. According to Roy, his later recall of the two senior employees occurred after a Board agent had told him that he could lay off in order of seniority. 25 Ch. 66A, Sec. 2, of the Massachusetts general laws ("Fair Information Practices," St. 1975, c.776, sec. 1), provides, Inter alga Sec. 2: Every agency maintaining a personal data system shall: (c) not allow any ... individual not employed by the holding agency to have access to personal data unless such access is authorized by statute or regulation, or is approved by the holding agency and by the data subject whose personal data is sought . . (Continued) 260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD records show a change from the "quit" entry admittedly made by Roy to a "mutual consent" entry which a division representative suggested to Roy as a means of entitling Cowles to unemployment benefits. Particularly in view of Roy's testimony that he did not accede to this proposed change until after being assured that it would not affect his unemployment insurance taxes, I cannot perceive how this proposed inference would tend to show that Cowles quit.26 After weighing these cold record considerations, Roy's unreliability in connection with his explanation of the admitted layoffs (infra), and demeanor considerations (which heavily favor Cowles), I credit Cowles' version of his termination interview and related matters, as summarized supra. b. Whether the layoffs violated the Act (1) The General Counsel's prima facie case Three days after all of Respondent's employees had signed union cards, the Union advised Roy of its majority status and asked him to sit down and discuss the matter. Roy's response was a threat to shut down the shop and, according to him, the comment, "Oh, shit, I need another problem like this." When the union representatives offered to prove its majority status by means of a card check conducted by an impartial third party, Roy grabbed the authorization cards from a union representative, read off the names, and, when reaching Cowles' card, threw it on the floor and said that he was not an employee. After a union representative cautioned Roy to watch what he was saying because he was violating certain laws, Roy said that he thought something could be worked out without any problems. However, after receiving the Union's demand letter and letter of recognition, Roy said that his wife was threatening to leave him if he recognized the Union, and asked the union representatives to wait a year. When told that the Union wanted immediate recognition, Roy prom- ised that he would give his decision by telephone the next morning. He did not call, but did change the locks on the shop doors, remove the sales records kept by Buscemi, and tell him not to keep any more. Three days later, he told Respondent's three salesmen that if he took the Union his wife would leave him, that if he did not take the Union ..you guys" would leave him, and that he "should pack it all up and go to the islands . . . ought to just sell this place and get out from under it." After agreeing to give the employees a chance to buy the business, he remarked that they had "really" given him "the shaft" when they brought in the Union, that the employees should have come to him, and that they could have worked out their problems without the Union. Roy further said, "I might as well sell the business and get out of this thing." Respondent's refusal to recognize the Union without an election was written that same day. Two days later, Roy, who then mistakenly believed Baxter to be the union leader, told Cowles (the real one) (k) maintain procedures to ensure that no personal data are made available from its personal data systems in response to a demand from data made by means of compulsory legal process, unless the data subject has been notified of such demand in reasonable time that he may seek to have the process quashed. n Respondent also points to Cowles' testimony that when laying him off Roy initially gave as a reason that Respondent had too high an overhead and that if he "hadn't sided with those guys" in seeking union representation he would have been the "head man." He asked Cowles to induce the other salesmen to agree to accept a basic salary plus commission. On the regular payday 2 days later, and after receiving the Union's representation petition, Roy initially refused to give Cowles his paycheck because he had not asked the other employees to agree to this new arrangement. Cowles said that he was going to get his paycheck even if he had to go to the Massachusetts Unemployment Compensation Board to get it. Later that day, Roy gave Cowles his final paycheck and told him that he was being laid off because Respondent's accountant had told Roy that his overhead was too high and he had too many people on the payroll. When Cowles resentfully asked why 4 weeks' tax deductions had been taken from his final check, diminishing it by 60 percent, Roy told him that he was being laid off because of "all the trouble I'm having with the Labor Board guy," i.e., the Unemployment Compensation office, "and all this union stuff. . . . The lawyer told me I could take it out once a month at the end of the month and I'd be covered." As Cowles left, Roy asked, "Seeing as how you're leaving, who started the Union?" On the second working day thereafter, Roy laid off the remaining employees, and gave as a reason the "hornet's nest" the employees had created by joining the Union, causing him extensive legal fees from the unionization campaign and lack of credit which had prevented him from obtaining padding that morning. Roy testified that, on February 18, he learned that his attorney had erred in allegedly telling him that, because of the Union's bargaining demand, he could not effect any layoffs of fewer than his entire staff. According to Roy, he was advised on February 18 that he could effect layoffs based on seniority. Then, Roy called back the two senior employees (Baxter and Kane), although Roy would admit- tedly have preferred Buscemi to Baxter because Roy still believed that Baxter was the "troublemaker" who had brought in the Union. Thereafter, the shop was open only 2 nights a week, although most of its weekday retail sales are "closed" during the evening hours, and the shop had previously been open 5 or 6 nights a week. The foregoing evidence strongly points to the conclusion, at least prima facie, that Respondent laid off these four employees at least partly to discourage union activity. (2) Respondent's explanations for the February 17 layoffs While not appearing to contend that the February 17 layoffs were wholly unrelated to the Union's advent, Respondent contends that the only legally significant motivations were Roy's alleged belief that Respondent was in financial difficulties and Roy's emotional problems related largely, although not entirely, to such alleged financial difficulties. As shown, infra, there is very little too many employees on the payroll. However, this was not an explanation given by Cowles; rather, it was an explanation given by Roy, who is not always given to logical statements (see, infra). In any event, even when Cowles was being paid on a straight commission basis, maintaining him on the payroll imposed on Respondent such expenses as social security and unemployment compensation taxes , as well as commissions paid to him for sales that might have been made anyway by the salaried salesmen. ROY'S CARPET LAND evidence about what Respondent's financial position really was. In connection with Respondent's economic defense, the record shows as follows: 1. About June 1975, Joe Tessier, a relative of Roy's who had managerial experience in the carpet business, joined the business. Roy transferred some stock to Tessier in anticipation of a $50,000 cash payment from Tessier, which was never made. About October 1975, Tessier agreed to leave the business and (inferentially) to surrender his stock, in return for $25,000 worth of carpet and $10,000 in cash. In connection with the Tessier matter, either Roy or Respon- dent signed notes to Tessier's attorney for $10,000 in legal fees. 2. Roy testified about certain loans from members of his family. At one point he testified that, as of February 1976, "my father-in-law had died a couple years before and I borrowed about $22,000 from relatives." Elsewhere, he testified that about January 1976 "I had to borrow $6,000 from my mother-in-law," and that as of early January $17,000 from his mother-in-law and other family members had been put into the business. Respondent failed to produce any records regarding whether such loans totaled $17,000, $45,000, or somewhere in between; whether any of them had been repaid at any material time; and whether the debtor was Respondent or Roy personally. 3. Roy credibly testified that sometime in January, his insurance company threatened to cancel his workmen's compensation insurance and his insurance on the contents of the building because he had failed for several weeks to comply with his agreement to pay off at $200 a week a $6,000 debt he had owed it for some time.27 4. Roy credibly testified that on various occasions, the date of which he did not give, he asked his employees to deposit their paychecks in their own banks instead of cashing them in the bank where Respondent kept its account. 5. Roy credibly testified that as of mid-February he was slow in paying almost all his creditors. He further testified that, before Tessier joined the business in June 1975 and induced Roy to overdraw Respondent's account regularly, "If I didn't have the money, I wouldn't pay the bills." 6. General Counsel's Exhibit 12 states that Respondent had about $15,000 in sales between October 20 and 31, 1975; $32,000 in November 1975; $30,000 in December 1975; $27,000 in January; and $7,800 for the first 4 business days in February. (Assuming that Respondent had oper- ated throughout February and its sales had continued at the same level, its February sales would have totaled about $45,000.) General Counsel's Exhibit 12 consists of sales records kept on a daily basis by employee Buscemi, whose duties (according to Roy) included keeping some of Respondent's records. Buscemi testified, in Roy's presence, that Buscemi used working hours to prepare these records. In addition, Buscemi testified that, after checking with Roy, he supplied these records in November 1975 to a represen- tative of the Massachusetts sales tax office. Further, Buscemi, Cowles, and Baxter all testified that they had seen Roy look at these records. Roy testified that he had never 27 On March 1, the insurance company did cancel his insurance, although Roy's testimony suggests that this action may have been for reasons not adverted to in the record. This cancellation was wholly effective for about 3 261 kept or seen any records of his total sales for a particular month. He testified, however, that he "imagine[d]" Busce- mi used General Counsel's Exhibit 12 to compute the sales tax paid by Respondent. For demeanor reasons and in view of the probabilities of the situation, I discredit Roy's testimony that he never saw General Counsel's Exhibit 12, and credit the foregoing testimony by Buscemi, Cowles, and Baxter. Moreover, Buscemi credibly testified that he kept such records partly in order to make sure that Respondent complied with its agreement to pay him a commission on total sales if they exceeded a certain figure. Accordingly, I adhere to my hearing action in receiving General Counsel's Exhibit 12 as a business record. See Rule 803(6) of the Federal Rules of Evidence. 7. Roy credibly testified that as of early February Respondent owed the Roys, as landlords, back rentals totaling $18,000. He credibly testified that, instead of paying the $2,500 monthly rental called for by the lease, Respondent had been paying, directly to the bank which held the mortgage on the building, the undisclosed monthly amounts which the Roys owed that bank in principal, interest, and taxes. He further credibly testified that the Roys purchased the building in a "real distressed market"; that the building was being offered at $290,000; that the Roys paid $125,000 and put in $17,000 in needed improve- ments ; and that he thought its February 1976 value exceeded $150,000. 8. Roy credibly testified that on February 5, when the union representatives came into the shop, he and Mrs. Roy were in the office discussing his proposal, which she rejected, to remortgage their jointly owned home to obtain $30,000 to put into the business. 9. Roy testified that since June 1975, in response to Tessier's assertion that constant overdrafts were an "ac- cepted practice," Respondent had regularly been over- drawn at its bank by $2,000. Roy further testified that the records kept at the office of Respondent's accountant showed that as of December 31 Respondent was overdrawn by $3,000. Respondent's check ledger states that as of January 2 Respondent was overdrawn by about $1,360. In addition, Roy testified that during a 4-week period which began sometime in 1976, and ended on or before Buscemi's February 17 layoff, Buscemi came in at least once or twice a week and said that Respondent was overdrawn by $3,000 or $4,000. Respondent's check ledger shows that, on January 9 and 10, Respondent's account ranged between a $2,700 positive balance and an $8,300 overdraft. On January 9, Roy made a personal loan to Respondent in order to cover Respondent's $8,600 check to him in late December 1975 to cover his unpaid 1975 salary (see infra, par. 10). As of January 12, Respondent's account contained over $6,000. January 9 and 10 aside, Respondent's check ledger shows that on the approximately 38 business days between January 2 and February 17, 1976, Respondent was never overdrawn by as much as $4,000, was overdrawn by $3,000 or more on 2 days (January 30 and February 10), days, after which Roy regamed workmen's compensation insurance by carpeting a building for the insurance company. 262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and after January 9 was overdrawn on 3 days (January 30 and February 10 and 16, by $ 160).28 10. Before mid-1975, Respondent's "book work" had been performed by an unidentified nonemployee who was not a certified public accountant. In mid-1975, Tessier arranged for the professional services of a certified public accountant, Jack Smith. Roy credibly testified that, before retaining Smith, Respondent had been putting its business records in cardboard boxes which were piled up in three different offices and in a disorganized fashion . Employee Buscemi credibly testified that, between early May 1975 (when he began to work for Respondent) and September 1975 (when Tessier left), Buscemi had never seen any sales records kept by Respondent. Roy credibly testified that Smith had threatened to withdraw as Respondent's accoun- tant unless Respondent put its records into better order. Roy further credibly testified that, at the time of the hearing in July 1976, Respondent had not yet filed its income tax return for the calendar year 1975. Roy testified that, as of the last week in December 1975, he had failed to collect from Respondent $8,600 which it owed him in salary as Respondent's president . He further testified on direct examination that the last week in December, his accountant told him "to come into the office for the purpose of taking this money out of the corporation for personal income so I wouldn't have to pay taxes on it twice . . . the check had to pass before the end of the [fiscal ] year. That is, I was told if I didn't take my backpay before the end of the year then I would have to pay corporation taxes on it. Then I'd have to pay individual taxes when I took the money." Roy went on to testify on direct examination that, when he came to Smith's office, Smith or an associate accountant told Roy "that as of right now I was on a disaster path and that right now it was just a matter of down the road I would be bankrupt if I did not go ahead and get the cost of my operation in line with my sales. . . . That if I continued on the path that I was going, I had another three months in business ." Still on direct examination, Roy testified that he said he thought "things were going good," and the accountant replied, "You better wake up, because you're going down the drain." On cross-examination, Roy testified as follows: Q. [By Mr. Gardiner] But you did take a large amount of money out of the business in late December 1975, didn't you? Paid to you personally? A. Right, for the purpose of taking the money out of the corporation so I would not have to pay corpora- tion taxes. Q. I don't understand that. You said not the-not to have to pay corporation taxes, is that correct? A. Whatever it was, it is better to take-yes, if there was a profit, at the end of the year, it certainly would be 28 Respondent's counsel has attached to his brief a purported copy of a subpena requirin d to roduce, on the first day of the hearing, inter alga, "All cancelled checksg[and J bank statements of [Respondent I for the period of January 1, 1975 to present." Under the circumstances, I reject the General Counsel's efforts to nummize any weight attached to the check ledger in evidence by pointing out that Respondent failed to offer into evidence its records of another checking account maintained by it for the purpose of paying taxes 29 At no point did Roy testify that his accountant referred to tax better to pay taxes on it once than twice. And I believe this is a-most people working for a corporation do take a paycheck. Q. And you don't want to pay corporate taxes and then pay personal income taxes if you don't have to, right? A. Right. Q. And you don't pay corporate taxes unless you make a corporate profit, do you? A. Correct. Q. And at the end of December 1975, your accoun- tant said you'd better take some money out to avoid double taxation? A. No, he said that if I did not-they did not know what the outcome would be, at that particular time, but if I did not take it out before the end of the year I could not take it out after the 31st of the year. If all I took was $10,000 out on December 31st, I'd have no way of taking out after December 31st, unless I paid taxes on it first and then paid personal taxes on it second.29 Roy testified that, because Respondent did not in late December 1975 have enough money in its account to cover his $8,600 salary balance, "I wrote the checks and took them personally. Then after the first of the month I moved the money back to the company." He returned the money to Respondent by obtaining from the Third National Bank a $10,000 personal loan for which he used his personal savings account passbook as security, and lending the amount he received (about $9,800, because the bank had prededucted interest) to Respondent. A few weeks later, Respondent repaid this loan by a check dated February 26, 1976, to Roy and the Third National Bank. Roy explained that this loan was repaid because he needed to retrieve his savings passbook from the bank's vault for "another transaction." After regaining control of his savings pass- book, he took $6,000 from his savings account and loaned it to Respondent. On March 1, 1976, Company Vice Presi- dent Susan Roy, Roy's daughter, obtained a $3,000 loan from her bank, using her savings passbook as collateral, and lent that sum to Respondent. 11. Roy further testified that sometime between Janu- ary 15 and 29 he again met with his accountant, who reviewed with him "that document there"-referring to Respondent's Exhibit 1. The last two pages of this exhibit purport to be Respondent's balance sheet and income statement for the calendar year 1975, subject to an accountant's disclaimer dated July 28, 1976, the day before the hearing.30 Roy testified that he first saw the particular sheets of paper constituting this exhibit on July 28, 1976, when he obtained them from his accountant. He testified that this purported balance sheet showed a "$16,000 plus" loss "but they told me it would be greater than that before carryback or carry-forward considerations, or otherwise mention such considerations 30 "The accompanying balance sheet of Roy's Carpetland, Inc., as of December 31, 1975, and the related statement of income for the year then ended were not audited by us and accordingly we do not express an opinion on them. These financial statements are incomplete presentations because they do not include all the disclosures required by generally accepted accounting principles, including statements of retained earnings and changes in financial position; they should not be used by anyone who is not a member of the company's management." ROY'S CARPET LAND I'm finished." The document in fact sets forth a loss of $14,993.31. On voir dire by the General Counsel, Roy testified that, when he received on July 28 the page of Respondent's Exhibit 1 which purports to be a balance sheet, the accounting firm "said this is a copy of what they showed me [in January] . . . I have to assume that they, being CPA's, that they are telling the truth. I have no reason to feel that they changed it. . . . The CPA tells me this is a copy of what I saw." He had previously testified, however, that when he met with his accountant in January the accountant did not give him a "dollar/cents figure," about how much he was losing, but merely told him that his rent, telephone expenses, and salary expenses were dispropor- tionately high and his "net profit was approximately 32 percent. I was told that it should be near 40 percent... . That is before expenses." The document states that "gross profit" was 32.4 percent. Still on voir dire, when asked whether he saw in January that the paper contained certain scratched out numbers with different numbers beside them (as is true with respect to the purported balance sheet in Resp. Exh. 1), he replied, "I was not aware of it. I was informed that it was there by the CPA . . . there was no scratch-outs on the one that I-on the ones that I saw . . . I don't even know what those figures mean." Thereafter, on further direct examination, he testified that the purported income statement in Respondent's Exhibit 1 "is the exact copy of what I saw in January." When asked whether the purported balance sheet in Respondent's Exhibit 1 was the same as the one in January, while looking at the document, he described the handwritten changes thereon. The record then shows as follows: Q. [By Mr. Costa] But other than that, the sheet was the same? A. I would have to assume so, yes. Q. No, I don't want .. . A. Yes, yes, this page was exact . This is the one that I drew my - on number R(l)(c) [the purported income statement ] is the only paper that really interests me in January. Was, I was in trouble this-it was supposedly to show me if I used it properly, to show me how to get out trouble. Roy further testified that in late December his accoun- tant told him that he "should not be paying over 8 percent in the salary column . I was up in the 20-something percent." Respondent's Exhibit I states that "Salaries" were 11.8 percent of total sales.31 12. Respondent's records show that Roy did not draw his salary from Respondent during the first 4 weeks of 1976, or during 5 of the remaining weeks in the first quarter.32 Thereafter, and until the July 1976 hearing, he drew his $300 salary every week. As to his emotional problems, Roy credibly testified that he was exceedingly upset by the fact that, at an unspecified 31 This document further states that "Officer salary" was 5.2 percent of total sales, and that "Auto expense," "Group insurance," and "Commis- sions" were .7 percent, .3 percent, and .6 percent of total sales, respectively. 32 During 2 of these 5 weeks , the employees were on strike. 33 Sears, Roebuck & Co., 224 NLRB 558 (1976) (ALJD, II, C, 1, (b)); N. L. R. B. v. Fibers International Corporation, 439 F.2d 1311, 1312, 1315 (C.A. I, 1971); Sweeney & Company, Incorporatedv. N.LR B., 437 F.2d 1127, 1133 (C A. 5). 263 date prior to February 5, his son had been jailed on a drug abuse charge. Roy also credibly testified that, when the union representatives first came to the shop on February 5, he and his wife were "yelling and screaming" at each other because of the business losses from Tessier , who was Roy's relative; because Roy had not taken his salary from the business for several weeks ; because of Roy's January loan to the business ; and because of Roy's request that the Roys' home be remortgaged so he could put $30 ,000 into the business. He further testified that, as of that date, he and his wife were on the verge of divorce. Mrs. Roy's previously described conduct during and immediately after the union representatives' second visit to the shop on February 5 shows that she strongly opposed the Union. As previously found, in attempting on February 5 to put off the Union's bargaining demand and explaining on February 9 a desire to sell the shop, Roy said that she would leave him if he recognized the Union. (3) Conclusions The General Counsel has met his burden of proof if he can show that the four employees would not have been laid off but for Respondent's union animus33 As Respondent does not appear seriously to question it, Cowles' testimony (if credited, as it has been) effects such a showing as to him. Among the specific reasons which Roy then tendered for Cowles' termination was "all this union stuff." While Roy also referred to the Massachusetts Unemployment Com- pensation Board's statements to Cowles that Respondent had to make the legally required tax deductions from his paycheck, the modesty of the inconvenience and expense imposed by this requirement leads me to conclude that this consideration played little part in the termination deci- sion.34 Moreover, while Roy also gave as a reason his accountant's alleged statement that Respondent had to cut down on "overhead," Cowles' employment on a commis- sion-only basis involved less overhead than the employ- ment of anyone else on the payroll. I conclude that Cowles would not have been laid off but for Respondent's union animus and, therefore, that his layoff violated Section 8(a)(3) and (1) of the Act. I reach a like conclusion with respect to the February 17 layoffs. Such a conclusion is strongly pointed to, if indeed not compelled, by Buscemi's and Kane's credited testimony that, when laying off all three, Roy said that he was laying them off because of the "hornet's nest" the employees had created by joining the Union, causing him extensive legal fees from the unionization campaign and lack of credit which had prevented him from obtaining padding that morning. This inference from such testimony is at least corroborated, if indeed not independently established, by Roy's testimony. He testified that, when effecting the layoffs, he told Buscemi and Kane that this problem could have been worked out without a union, asked them why 34 However, I do not agree with the General Counsel that Cowles was engaged in "concerted" activity when he raised the deduction question with the unemployment compensation board . Unlike the safety improvements requested in Alleluia Cushion Co., Inc., 221 NLRB 999 (1975) (cited by the General Counsel), the commencement of proper deductions from Cowles' paycheck would not benefit other employees, who so far as the record shows were having proper deductions made. 264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD they had not come to him, and said, "You bastards gave me the shaft.... I'm up to my ears in trouble and instead of trying to help me out, I feel that you guys are working against me." Roy then went on to testify that he "was not speaking in regards to the union situation as such . Although it was part of it." While Roy's version of the layoff interview does indicate that his action was motivated partly by his family problems, such family problems included his wife's resentment of the Union and, to that extent, constituted in themselves an unlawful motive for the layoffs. Moreover, even if accepted uncritically, Respon- dent's evidence would show that its alleged economic difficulties had begun months before the layoffs. Further, Roy testified that on February 5 he told the union representatives that he thought business was going to pick up; he testified that in January and February his sales were going up; 35 he further testified that business usually improves before Easter in the spring; and in January he told employee Buscemi that business had started to pick up. Furthermore, Roy testified that his October 1975 inventory was $125,000 and that in early February, when he was discussing the sale of the business to the employees , he told them that the inventory was worth $180,000.36 Furthermore, I conclude that Roy's testimony about Respondent's financial difficulties is not entitled to uncriti- cal acceptance. Thus, Roy was clearly untruthful in testifying that in late December his accountant told him that he was "going down the drain" and at the same time advised him to draw his salary before the end of the year so that Respondent would not have to pay corporate income taxes on it. His complicated and successful efforts to draw his salary before the end of 1975 lead me to discredit his testimony about his accountant's alleged pessimistic reports in late December, and to infer that Roy believed Respon- dent's 1975 operations might well show a profit . Further, I do not believe his testimony that the balance sheet and income statement which he received from his accountant the day before the hearing (Resp. Exh. 1) refreshed his recollection about the contents of similar documents which his accountant allegedly showed him in the latter part of January, in view of Roy's previous testimony that during this January meeting his accountant did not give him a dollars-and-cents figure about what he was losing, Roy's admission that he did not understand the figures on the exhibit, his testimony from time to time that he merely assumed the two documents were the same, his inaccurate testimonial description of the loss appearing on Respon- dent's Exhibit 1, and the difference between his testimonial description and the exhibit's description of Respondent's salary expenses in relation to sales . In addition, Respon- dent's own records establish that Roy's testimony grossly exaggerated the size and frequency of Respondent's over- drafts. Furthermore, although Roy testified that most floor covering sales are "closed" in the evening, and that he hired Cowles on January 15 to enable Respondent to keep the store open every evening, after the layoffs he kept the store open on fewer evenings than before Cowles was hired. Finally, Roy simply did not act as if his accountant had as He further testified that his sales were not going up "in proportion to keep up with [his l added costs" However, when then asked how he knew what the proportion was, he evaded the question warned him in December and January that Respondent had to reduce payroll expenses to stave off ruin within 3 months and he believed this. Instead, he hired a third salesman on January 15, who was to be paid partly on a salary basis after a few weeks. His proposal to the remaining salesmen in the latter part of January to go on a straight commission basis could not have saved Respon- dent any money until after the 3-month guarantee period had elapsed; and, when the salesmen refused , until a few days after receiving the Union's February 10 petition, Roy continued to employ both of them on the same salary basis as before. Indeed, far from testifying that the layoff decision was the culmination of financial considerations allegedly presented to him several weeks previously, Roy testified that his decision to lay off the entire work force was made on the very morning of the layoff, when he found that he had no padding. Respondent's economic defense is further undermined by Roy's removal of the sales records kept by Buscemi , which if available to the accountant might materially have altered the admittedly incomplete 1975 financial statements prepared by him, and by the rather free interchange of funds between Respondent, Roy, and members of the Roy family in the form of loans , repay- ments, rent, overdue rent, interest, and taxes. I note that Respondent submitted virtually no evidence to establish what its financial condition really was (see supra). For the foregoing reasons, I conclude that Buscemi, Baxter, and Kane would not have been laid off on February 17 but for Respondent's union animus and, therefore, that such layoffs violated Section 8(a)(3) and (1) of the Act. The fact that between February 17 and 20 the layoff encom- passed all of Respondent's active employees does not affect its legality. So far as the record shows, the store remained open at all times until the Union began to picket the store on February 25, several days after Kane's and Baxter's recall ; and Roy testified that he was unable to operate the store with members of his family only. See Textile Workers Union of America v. Darlington Manufacturing Co., et at 380 U.S. 263, 271-273 (C.A. 4, 1965). In view of the layoffs precipitateness and demeanor considerations, I do not credit Roy's testimony that the layoff extended to the entire work force because his attorney had told him that the Union's presence precluded a partial layoff. In any event, an employer may not lawfully enlarge the size of a layoff because of the presence of a union . Independent Sprinkler & Fire Protection Co., 220 NLRB 941 (1975) (ALJD); Amb- rose Distributing Company, 150 NLRB 1642, 1646 (1965), enfd. 358 F.2d 319 (C.A. 9, 1966), cert. denied 385 U .S. 838. Nor may an employer defend otherwise unlawful action on the ground that he acted on advice of counsel . Jerstedt Lumber Company, Incorporated, 209 NLRB 662, fn. 2 (1974); see also N.L.R.B. v. Patrick F. Izzi d/b/a Pat Izzi Trucking Co., 343 F.2d 753, 755 (C .A. 1, 1965). Further, in view of Roy's testimony that regular evening hours benefit- ed the business, I conclude that, after reinstating Baxter and Kane, Respondent cut back its evening hours in order to provide a continuing pretext for failing to reinstate 36 Resp. Exh. 1, the unaudited 1975 balance sheet, values inventory at ROY'S CARPET LAND 265 Buscemi and Cowles rather than for legitimate economic reasons. 3. The refusal to bargain a. The appropriate unit The complaint alleges that "All full-time and regular part-time employees of Respondent employed at its Spring- field, Massachusetts location, exclusive of guards and all supervisors as defined in Section 2(11) of the Act" consti- tute a unit appropriate for collective-bargaining purposes. Between January 15 and February 13 (the dates of Cowles' hire and separation), Respondent had at this location a total of four active employees-Cowles, Baxter, Buscemi, and Kane-all of whom were admittedly in the described unit, and all of whom signed valid union authorization cards on February 2. Respondent's operation consists of two retail showrooms and two warehouses, all of them under one roof. Kane did mostly warehouse work and the others mostly selling, but at times they all interchanged work. All four of these employ- ees worked under Roy's supervision. All four worked under the same working conditions and work rules, and all four received the same benefits. All four had a considerable amount of contact with each other during the workday. Respondent's answer denies the appropriateness of the unit described in the complaint, but Respondent has failed to specify what unit it regards as appropriate. I find that the single-location, all-employee unit described in the com- plaint is appropriate for collective-bargaining purposes. b. The 8(a)(5) allegation and the requested bargaining order The principles declared in N.L.R.B. v. Gissel Packing Co. Inc., 395 U.S. 575, 610-616 (1969), call for a finding of an 8(a)(5) violation and a remedial bargaining order. Respon- dent laid off all of the Union's supporters to discourage union activity. Respondent has never offered reinstatement to two of these employees, including the employee who initially contacted the Union. Respondent not only told these employees that they were being laid off because of the Union's presence, but also threatened to shut the shop down and effect other reprisals because the Union had organized the employees, and engaged in coercive interro- gation in order to find out the identity of the Union's supporters and which employee had started the union movement. I conclude that these unfair labor practices are so serious, pervasive, and extensive as to make a bargaining order the only effective available remedy therefor. See Diamond Standard Fuel Corp., 179 NLRB 702 (1969), enfd. 437 F.2d 1163 (C.A. 1, 1971). At the very least, they fall within the Gissel middle category of "less pervasive practic- es which nonetheless still have a tendency to undermine union strength and impede the election process." As unfair labor practices within that category, they would justify under Gissel a bargaining order based on the Union's majority card showing in an appropriate unit and Respon- dent's failure to honor the Union's bargaining demand if other relevant considerations confirm "that the possibility of ensuring a fair election by the use of traditional remedies, though present, is slight, and that employee sentiment once expressed through cards would, on balance, be better protected by a bargaining order." Such confirmation in the instant case is provided by the inherent lingering tendency of discriminatory terminations persistently to discourage continued union activity among its victims even after they have been offered reinstatement and made whole. W & W Tool & Die Manufacturing Co., 225 NLRB 1000(1976). An 8(a)(5) fording and a bargaining order are proper even though, after Roy had grabbed and inspected the employ- ees' authorization cards, the Union offered to prove its majority through a card check by a disinterested third party, filed a representation petition upon Roy's failure to keep his promise to reply by a definite date, and did not file a refusal-to-bargain charge until March 2, when Respon- dent's 8(b)(1XA) charge (later dismissed) held up the processing of the Union's petition. Gissel, supra, 395 U.S. at 613-615. Because Respondent received the Union's bar- gaining demand on February 5 and on that same date commenced its clear course of unlawful conduct, it is found that Respondent's 8(a)(5) violation began on February 5. Trading Port, Inc., 219 NLRB 298, 301(1975). CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. Respondent has violated Section 8(axl) of the Act by interrogation regarding employees' union activity, and by threatening shutdown and other reprisals because of employees' union activity. 4. Respondent has violated Section 8(a)(3) and (1) of the Act by laying off employees Peter Cowles, David Kane, Philip Buscemi, and Fredrick Baxter to discourage union activity. 5. Respondent has violated Section 8(aX5) of the Act on and after February 5, 1976, by failing and refusing to bargain with the Union as the representative under Section 9(a) of the following unit which is appropriate for such purposes: All full-time and regular part-time employees employed by the Respondent at its Springfield, Massachusetts, location, exclusive of guards and all supervisors as defined in Section 2(11) of the Act. 6. The foregoing unfair labor practices affect commerce within the meaning of the Act. Tim REMEDY Having found that Respondent has violated the Act in certain respects, I shall recommend that Respondent be required to cease and desist therefrom. The record shows that Respondent laid off its entire work force to discourage union membership, and evinced an intent to engage in unfair labor practices in the future by threatening to close down the shop if it were unionized. Such unfair labor practices lead me to anticipate that, unless restrained, Respondent will engage in continuing and varying infringe- ments of its employees' Section 7 rights. Accordingly, I 266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD shall recommend that Respondent be required to cease and desist from infringing on employees' rights in any other manner. N. L. R. B. v. Express Publishing Company, 312 U.S. 426, 437-439 (1941); N. L R. B. v. East Texas Pulp & Paper Company, 346 F.2d 686,689-690 (C.A. 5, 1965); N.LR.B. v. Southern Transport, Inc., 343 F.2d 558, 560-561 (C.A. 8, 1965); Brom Machine and Foundry Co., 222 NLRB 74 (1976); Highland House Nursing Center, Inc., 222 NLRB 134 (1976). Further, I shall recommend that Respondent be required to offer Cowles and Buscemi immediate reinstatement to the jobs of which they were unlawfully deprived, or, in the event such jobs no longer exist, substantially equivalent jobs, without prejudice to their seniority or rights and privileges, and make each of them whole for any loss of earnings he may have suffered by reason of his unlawful layoff, from the date of his layoff to the date of a valid offer of reinstatement, to be computed in the manner described in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest as described in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). (Because Kane and Baxter have been reinstated without loss of pay, the General Counsel seeks no similar order as to them.) In view of my finding that Respondent cut down its evening hours in order to provide a continuing pretext for failing to reinstate Buscemi and Cowles, for purposes of computing backpay during such a cutback in hours, Respondent is to be deemed in need of three salesmen. In addition, for the reasons previously indicated, I shall recommend that Respondent be required to bargain with the Union, on request. Also, I shall recommend that Respondent be required to post appropri- ate notices.37 Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER38 The Respondent, Roy's Carpet Land, Inc., Springfield, Massachusetts, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating about employees' union activity in a manner constituting interference, restraint, or coercion. (b) Threatening to shut down its operation or effect other reprisals because of employees' union activity. (c) Telling employees that they are being laid off because of union activities. (d) Discouraging membership in Retail Employees' Union, Local 1459, Retail Clerks International Association, or any other labor organization, by laying off employees, or otherwise discriminating in any manner in regard to their hire or tenure of employment or any terms or conditions of employment. (e) Refusing to bargain in good faith with Local 1459 as the exclusive bargaining representative of the following unit which is appropriate for such purposes: All full-time and regular part-time employees employed by the Respondent at its Springfield, Massachusetts, location, exclusive of guards and all supervisors as defined in Section 2(11) of the Act. (f) In any other manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Offer Peter Cowles and Philip Buscemi immediate and full reinstatement to their former jobs or, if their former jobs no longer exist, to substantially equivalent jobs, and make them whole for any loss of pay they may have suffered by reason of their unlawful layoff, in the manner set forth in the section of this Decision entitled "The Remedy." (b) On request, bargain with Local 1459 as the exclusive bargaining representative of the employees in the appropri- ate unit with respect to wages, rates of pay, hours of employment, and other terms and conditions of employ- ment, and, if an understanding is reached, embody such understanding in a signed written agreement. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary or useful to the analysis of the amount of backpay due under the terms of this Order. (d) Post at its place of business in Springfield, Massachu- setts, copies of the attached notice marked "Appendix." 39 Copies of the notice on forms provided by the Regional Director for Region 1, after being duly signed by Respon- dent's representative, shall be posted by it, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that the said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 1, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 37 After the unfair labor practices herein , Respondent hired Roy's son, who had previously worked for Respondent but needed ajob in order to get out ofjail. In accordance with the General Counsel 's suggestion, the effect of this hire on Cowles' and Buscemi's reinstatement rights, and whether the younger Roy is part of the bargaining unit, are left to compliance proceedings. Foam Rubber City #2 of Florida, Inc. d/b/a Scandia, 167 NLRB 623 (1967); Pansoff Drive-In Market, Inc., 201 NLRB 813 (1973). 38 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. 39 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals , the words in the notice reading "Posted by Order of the National Labor Relations Board " shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all parties had the opportunity to present their evidence, it has been decided that we violated the law in certain respects. We have been ordered to post ROY'S CARPET LAND this notice. We intend to carry out the Order of the Board and abide by the following: WE WILL NOT interrogate about employees' union activity in a manner constituting interference, restraint, or coercion. WE WILL NOT threaten to shut down the shop or effect other reprisals because of employees' union activity. WE WILL NOT tell employees that they are being laid off because of union activities. WE WILL NOT lay off or otherwise discriminate against any employee to discourage membership in Retail Employees' Union, Local 1459, Retail Clerks International Association, or any other union. WE WILL NOT refuse to bargain with Local .1459 as the exclusive representative of the employees in the following unit: All full-time and regular part-time employees employed by us at our Springfield, Massachusetts, location, exclusive of guards and supervisors as defined in Section 2(11) of the Act. WE WILL offer Peter Cowles and Philip Buscemi reinstatement to their old jobs or, if such jobs no longer exist, to substantially equivalent jobs, and make them whole, with interest, for loss of pay resulting from their layoff. 267 WE WILL, on request, bargain with Local 1459 as the exclusive representative of the employees in the above unit, and embody in a signed written agreement any understanding reached. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed by Section 7 of the Act. The National Labor Relations Act gives employees the following rights: To engage in self-organization To form,join, or assist any union To bargain collectively through representatives of their own choosing To engage in activities together for the purpose of collective bargaining or other mutual aid or protection To refrain from any such activities. Our employees are free to exercise any or all of these rights, including the right to join or assist Local 1459 or any other union. Our employees are also free to refrain from any or all such activities , except to the extent that union membership may be required by a collective -bargaining agreement as a condition of continued employment as permitted by the proviso to Section 8(a)(3) of the Act. Roy's CAIU ET LAND, INc.