Florsheim Shoe Shops, Inc.

88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 'Florsheim Shoe Shops, Inc. and John Canino. Case 2-CA-18626 - -11 April 1985 DECISION' AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER- AND DENNIS On 17 May 1.983 Administrative Law Judge Steven Davis issued the attached decision. The Re- spondent and the General Counsel filed exceptions and a supporting brief, and the Respondent filed a brief in response - to the General Counsel's excep- tions. The Board has' considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, i and conclusions as modified and to adopt the recom- mended Order as modified. 1. Contrary to the judge, we find the Respond- ent violated Section 8(a)(3) by transferring shoe salesman and shop steward John Carino to a less desirable sales location. The judge found the Gen- eral Counsel established a prima facie case that Carino's union activity was a motivating factor in the Respondent's decision to transfer Carino, but the Respondent met its burden under Wright Line2 of proving that the transfer was based on legitimate business reasons. We find serious defects in the Re- spondent's economic justification for the transfer and conclude it is pretextual. - In January 1982, the Respondent transferred Carino from its 7th Avenue store to its 47th Street store, a less desirable location, because Carino would be required to work evenings and would obtain a diminished share of sales commissions be- cause more salespersons were employed at 47th Street. In finding that Cariiio was transferred for ' The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings In adopting the judge's finding that employee Canno's protests regard- ing sales commissions constituted protected concerted activity, we note that Air Surrey Corp, 229 NLRB 1065 (1977), cited by the judge, was overruled in Meyers Industries, 268 NLRB 493 (1984), and thus we do not rely on it This does not affect the result here because we find that in fact the discriminatee engaged in protected concerted activity 2 251 NLRB 1083 (1980) In finding a prima facie case, the judge cited the following (1) the unlawful threats made to Canno, (2) Carmo was transferred only 2 weeks after he testified on the Union 's behalf at an ar- bitration hearing, (3) a store manager's remark to Canno after he testified at the arbitration that Carino was "going to enjoy working at the 47th and Broadway store", (4) a statement to Carino by the manager of the 47th Street store that he had fought to stop the transfer and that he did not want to do the Respondent's "dirty work" for it , and (5) the fact that Regional Manager Saphire previously had promised Canno that he never would be transferred to a store where he was required to work evenings legitimate business reasons , the judge relied on the assertions of Regional Manager Saphire-who was solely responsible for the transfer decision-that he "tracked" the monthly sales volume of the two stores involved and that their respective perform- ances showed that a salesperson should be trans- ferred from the store with declining sales-7th Avenue-to • the one with rising business-47th Street. Specifically, Saphire testified he had fol- lowed the 7th Avenue store's performance for a period of 7 to 8 months, and its sales volume had decreased 14 percent, while during the same period the sales volume at the 47th Street store increased 33 percent. The Respondent's own figures, howev- er, demonstrate that during the 8 months preceding Carino's transfer the sales volume of the 7th Avenue store decreased 6 percent, not 14 percent, and the sales volume at 47th Street for the same period increased only 4 percent, not 33 percent. In fact, the 14-percent and 33-percent figures that the Respondent cited and the judge relied on span the stores' performance during the first 3 months of 1982. Thus, the statistics Saphire stated he used in deciding to transfer Carino covered a time period after he made his decision. The Respondent's sales volume exhibit demon- strates that the Respondent justified its transfer of Carino based on after-the-fact sales figures. The ex- hibit, which sets forth the monthly sales volume for both stores going back to 1980, fails to separate the percentage increase or decrease in sales for the 8-month period preceding the January 1982 trans- fer-the period for which Saphire testified he charted the stores' performance. The exhibit does, however, separate out the percentage increase and decrease for both stores for the first 3 months of 1982. In addition, after it came to light during the hearing that Saphire was asserting a reliance on the posttransfer 1982 figures, Saphire testified that in making the decision he looked at the last 4 months of 1981 and that those figures showed a "marked difference and decline" in the 7th Avenue store's sales volume. Saphire's statement is at odds with his earlier testimony that he had "tracked" the stores' performance for the last 8 months of 1981, and it exaggerates the fact that there was only a mere 4-percent decline in sales at 7th Avenue from September through December 1981. Saphire's testimony calls into serious question the judge's conclusion that Saphire "reviewed the sales figures objectively," and suggests that Saphire never engaged in such a review before deciding to transfer Carino. It is clear that the "legitimate busi- ness circumstances" that the Respondent cited and the judge relied on did not, in fact, exist at the time 275 NLRB No. 15 FLORSHEIM SHOE SHOPS of the decision to transfer Carino. Because the judge misconstrued the economic evidence the Re- spondent's own documentary exhibits demonstrat- ed, and thus accepted at face value Saphire's expla- nation for the transfer decision, we cannot agree that the Respondent rebutted the General Coun- sel's prima facie case of unlawful motivation. 2. Among the alleged threats which the judge found to violate Section 8(a)(1) was a statement to shop steward Carino by his supervisor Alan Siegel that Regional Manager Saphire would pay Carino $50,000 to start a car repair shop just to get rid of Carino. The judge concluded that this statement conveyed an unequivocal desire by the Respondent to be rid of Carino, and was therefore a threat to discharge him in violation of Section 8(a)(1). We disagree. The day prior to Siegel's conveyance of this offer to Carino, Carino had initiated a conversation with Seigel in which Carino suggested he would be willing to "get rid of' the local union in return for $100,000 and his pension. Carino candidly testified that he was serious about this offer, and that he was agreeable to speaking with Regional Manager Saphire about his offer. The Respondent's "counteroffer" conveyed the next day by Seigel appears to be part of an ongo- ing discussion initiated by Carino for the purpose of ascertaining whether the Respondent would offer to pay him to his satisfaction for ceasing his union activities. Made in this context, the $50,000 offer made by Siegel cannot reasonably be deemed a threat to discharge Carino. As Seigel's statement was not a threat in violation of Section 8(a)(1), we reverse the judge's finding to the contrary. AMENDED CONCLUSIONS OF LAW 1. Delete Conclusion of Law 5. 2. Insert the following as Conclusion of Law 4 and renumber the existing Conclusion of Law 4. "4. Respondent violated Section 8(a) (1) and (3) of the Act by discriminatorily transferring John Carino to the 47th Street Store." ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified and orders that the Respondent, Florsheim Shoe Shops, Inc., New York, New York, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modi- fied. 1. Insert the following as paragraph 1(b) and re- letter the existing paragraph. 89 "(b) Transferring employees to less desirable lo- cations or otherwise discriminating against employ- ees because of their union activities." 2. Insert the following as paragraph 2(a) and re- letter the existing paragraphs. "(a) Offer John Carino transfer to the 7th Avenue store and make him whole for any com- missions or other earnings lost as a result of his transfer to the 47th Street store on 29 January 1982, plus interest."3 3. Substitute the attached notice for that of the administrative law judge. CHAIRMAN DOTSON, dissenting in part. Unlike my colleagues, I would adopt the judge's dismissal of the complaint allegation that the Re- spondent discriminatorily transferred Carino to a less desirable sales location.' It is true that not every sales performance figure relied on may sup- port Regional Manager Saphire's decision to trans- fer Carino. Nonetheless some figures indisputably do support his decision, and therefore it must be as- sumed that his decision was motivated by legiti- mate business considerations. The uncontested figures in the Respondent's eco- nomic exhibit show that the sales performance at the store to which it transferred Carino improved during the 4 months immediately prior to the trans- fer in comparison to the store's sales performance during the corresponding time period the previous year. Furthermore, the sales performance of the store from which he was transferred deteriorated during the same 4-month period. It is not the Board's prerogative to substitute its own business judgment as to whether these figures are counterbalanced by others indicating that the Respondent should not have transferred Carino. Accordingly, I agree with the judge that under Wright Line, 251 NLRB 1083 (1980), the Respond- ent did not violate Section 8(a) (1) and (3) by trans- ferring Carino. s See Isis Plumbing Co, 138 NLRB 716 (1967), as modified by Florida Steel Corp, 231 NLRB 651 (1971) i I join my colleagues in all other respects APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. 90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT threaten our employees with un- specified reprisals or with discharge because they initiate or pursue grievances or because of their ac- tivities in behalf of Local 888, United Food and Commercial Workers International Union. WE WILL NOT transfer employees to less desira- ble locations or otherwise discriminate against em- ployees because of their union activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL offer John Carino transfer to the 7th Avenue store and make him whole for any com- missions or other earnings lost as a result of his transfer to the 47th Street store on 29 January 1982, plus interest. FLORSHEIM SHOE SHOPS, INC. DECISION STATEMENT OF THE CASE STEVEN DAVIS, Administrative Law Judge. Pursuant to a charge filed on February 26, 1982, by John Carino, an individual, a complaint was issued by Region 2 of the National Labor Relations Board on June 15, 1982, against Florsheim Shoe Shops, Inc. (Respondent). The complaint alleges that Respondent violated Section 8(a)(1) and (3) of the Act by threatening Carino with dis- charge and with unspecified reprisals, and transferring him from its store at 827 Seventh Avenue to another store at 1567 Broadway. Respondent is alleged to have unlawfully taken these actions because of Carino's activi- ties in behalf of Local 888, United Food and Commercial Workers International Union, as a shop steward for that Union and because he filed and pursued a grievance with the Union regarding the commission rate to be paid on the sale of certain shoes. The case was heard before me on January 26, 1983, in New York, New York. On the entire record, i including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel and Respondent, I make the following FINDINGS OF FACT I JURISDICTION Respondent, a New York corporation, having its office and places of business in New York, New York, includ- ing a store at 1567 Broadway, New York, is engaged in the retail sale of men's shoes and related products Re- spondent annually derives gross revenues in excess of $500,000 from its business operations , and also annually i Subsequent to the close of the hearing, I received a stipulation exe- cuted by The General Counsel and Respondent relating to a salary com- parison of John Carino and Danny Diaz I have received that stipulation in evidence as J Exh I purchases and receives at its New York facilities prod- ucts, goods, and materials valued in excess of $50,000 di- rectly from firms located outside New York State. Re- spondent admits, and I find, that it is an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and that the Union is a labor or- ganization within the meaning of Section 2(5) of the Act II. ALLEGED UNFAIR LABOR PRACTICES A. Facts 1. The General Counsel's case Respondent employs a total of about 64 salesmen, 15 to 16 porters and stockmen, and 1 trimmer in its 15 stores in the New York area. There are about 4 to 5 salesmen employed in each store. Respondent's salesmen have been represented by the Union for more than 20 years, and the Respondent and Union are parties to a collective-bargaining agreement. Much background evidence was presented by the General Counsel, some relating to incidents which oc- curred 5 years before the hearing. This evidence will be set forth here because I believe that it properly puts more current events in perspective, is relevant to certain credibility issues, and sheds light on the allegations of the complaint.2 Carino, hired by Respondent in 1972 as a salesman, has been a member of the Union for 10 years. Respondent's salesmen are and have been paid a base salary plus commissions for the items that they sell. The commission rate varies depending on the type of shoe sold. For example, the sale of a "casual"3 shoe earned a higher rate of compensation than the sale of a "dress" shoe. In 1978, a new line of shoes was introduced which had all the characteristics of a casual shoe but also had some leather ornamentation Respondent paid its sales- men at the lower, dress shoe rate for such shoes and Carino protested this action to Store Managers Kenny Helig and Alan Siegel without success Carino testified that in spring 1979 he raised this issue with Emil Saphire, Respondent's New York general manager, and told him that he had visited an attorney from whom he sought an interpretation of the collective- bargaining agreement and advice as to the possibility of filing a grievance concerning the payment rate for the shoes in dispute. Saphire asked how long he had been employed by Respondent and Carino answered that it has been 6 or 7 years. Saphire responded that Carino is a good salesman, is liked, and is making a good salary, and that "if you open a can of worms up, you never know where it's going to lead to." Carino asked what he meant 2 Evidence of conduct occurring more than 6 months before February 26, 1982, that date the charge was filed, may be relied on as background evidence to shed light on the motive for allegedly unlawful conduct oc- curring during the 10(b) period Machinists Local 1424 v NLRB, 362 U S 411 (1960), Mechanics Laundry Supply of Indiana, 240 NLRB 302, 303 (1979) 3 Casual shoes were described as those that have "cloth uppers " FLORSHEIM SHOE SHOPS i 91 by that remark and Saphire answered that he should "take it for what it's worth "' - Thereafter, in May 1980, Carino told Union Business Representative Edmundo Perez of the problem. Perez met with Saphire and claimed that 20 styles should be paid at the higher, casual rate Saphire replied that only one of the-styles would receive the higher commission rate I discredit Carino's testimony that Perez asked him to file a grievance, or that he did so.s But it appears that a grievance was filed, apparently by the Union. Shortly thereafter, before June 25, 1980, the Union's attorney recommended that the grievance be amended to assert a claim for unpaid commissions for all the sales- men. Carino agreed, and the modified grievance sought $38,000 in lost commissions. On August 3, 1980, Carino was elected shop steward. Carino was one of five committee- persons who were present during the negotiation of a renewal contract with Respondent in September 1980.6 Also in September 1980, an incident arose in which stolen credit cards were being used by a salesman. Carino reported this to Saphire and accused the store manager, Willie Rosato, of also being involved in the use of the cards. The manager brought the cards to Saphire for destruction. Carino testified that later that month he saw the same cards7 in the store. Carino accused Rosato of being a "thief," and "spying" on him. 8 In Carino's presence Rosato phoned Saphire and told him that he would no' longer do his "dirty work" by spying on Carino, and if Saphire wanted to "catch" Carino, Sa- phire would have to spy on him . About that time, Assist- ant Manager Murray Solomon reported to Carino that Store Manager Alan Siegel told him that Rosato was spying on him. After-receiving this information, Carino called.Siegel who told him that "they're trying to get you. Just be careful." Siegel added that he did not want to "mess with you. You're shop steward . . . and you carry the by-laws in your back pocket." Carino attended two settlement meetings about' June 1981 with Respondent's attorney relating to the casual shoe grievance. In November 1981, Derek Howard became the•manag- er of the store in which Carino Worked. Howard sold merchandise, thereby earning commissions . Canno ob- 4 Saphire denied that this conversation ever occurred I credit Canno It is likely that, having been unsuccessful in resolving the issue with the two store managers -he would have taken it up with their superior, Sa- phire Moreover, Carmo followed up this conversation with the initiation of a grievance thereafter 5 Canno also testified that Perez asked him to have the grievance nota- rized Perez denied asking Carino to file a written , notarized grievance, but conceded that a grievance was filed (apparently by the Union) in behalf of Canno The grievance document was not presented at hearing Respondent denies receiving such a grievance filed by. or mentioning Canno Inasmuch as it is clear that Cartno was the moving force behind the filing of the grievance which was filed in his behalf, and because Carino was active thereafter in pursuing the grievance, the' fact that he may not in fact have filed the grievance is immaterial 6 The committee persons were all employees of Respondent Cartno at- tended three or four negotiation sessions r However, on cross-examination ,' Carino conceded that he did not look at the account numbers on the cards but only saw that the names were the same as those that he saw earlier 8 Store Manager Alan Siegel told Canno that Rosato has "been spying on you He's looking to get you " jected to this inasmuch as Howard was not a salesman and was depriving the salesmen of the commissions he received, and threatened to file a grievance. Howard re- plied that he had been-warned about Carino, that he was a steward who carried the bylaws in his back pocket He then told Carino that he would run the store as he saw fit and, as far as he was concerned, Carino did not exist. Carino called Saphire's office but first spoke to Manager Siegel who admitted previously telling Howard not to "mess with" Carino because he carries bylaws with ''iim and would "eat -him up and spit him out." Carino tl en spoke to Saphire and told him of Howard's selling on the floor. Saphire immediately came to the store, and Carino told him that Howard sold $1000 worth of merchandise to supplement his income. Saphire replied that Carino could not tell him how to hire his managers or what to pay them. Carino agreed noting, however, that he could file a grievance against Howard and against Saphire as a "co-conspirator." The matter was settled immediately to Carino's satisfaction. Saphire then asked Carino if he would like to be transferred to the 53d or 42d Street stores, which have equal volume and are also stores which are not open late. Carino asked if those two were the only stores available and Saphire answered in the af- firmative, adding that he would not put Carino into a store which had late hours because he did not want to hurt Canno, as a steward and as a senior employee. Carino rejected both locations. On January 8, 1982,9 an arbitration hearing was sched- uled to begin on the casual shoe commission issue. During the session, which was abbreviated due to the Union's request for a postponement which was granted, Respondent Vice President Lou Brien sat opposite Carino and stared at him with his arms folded and fists clenched. There was some discussion regarding store se- curity in which Union Business Respresentative Perez and Carino complained that security was - Inadequate. Brien asserted that Respondent needed security against its salesmen. When the adjournment was announced, Brien stated that he had traveled from Chicago for noth- ing. On the conclusion of the session, Carino returned to work at the Seventh Avenue store where he saw Julie Olds, the manager of the 42d Street store. Olds asked him how the case was progressing and Carino replied that "We're winning." Olds10 responded: "Well, you're going to enjoy working at 47th Street and Broadway." i i Carino answered: "No way." - Two weeks later, on January 22, Carino was advised that he was being transferred to the 47th Street store. He called Alan Siegel, the manager of that store and was told that the store did not need a fifth salesman, and that Siegel "fought hard" to keep Carino out, but Saphire "got his way, he dumped you on me." Carino asked if Siegel, his friend, would try to harm him. Siegel an- swered that' he would not do the Company's "dirty work" for it, adding that they could work together. Siegel repeated his pledge on January 29 when Carino 0 All dates hereafter are in 1982 10 The parties stipulated that Olds and Siegel are supervisors within the meaning of the Act i' Herein called the 47th Street store 92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD began work at the 47th Street store and also said that he would remain "neutral." Siegel further said that he told Saphire that Carino would not quit notwithstanding the transfer. Carino agreed that he would not quit. On January 27, Carino sent a letter to Union Official Sidney Heller, with copies to Brien and Saphire, grieving his transfer. The letter stated that the transfer was made because of the May 1980 grievance relating to the casual shoe commission issue. In February or March, Carino spoke to Store Manager Olds and to Saphire regarding a grievance of an employ- ee who was assigned to a store's stockroom when he should have been on the selling floor. The matter was re- solved to Carino's satisfaction. About February 17, Union Business Representative Perez was discharged by the Union. 12 Carino requested and received permission from Store Manager Siegel to go to other stores and ask employees to sign a petition in Perez' behalf. Carino told Siegel that such solicitation would take 2-1/2 hours and Siegel said that would be all right as long as Saphire, whose office was in the same building as the 47th Street store, was not aware of it. During Carino's lunch period that day, he visted two stores at which certain employees signed the petition. He saw Pauline Marino at one store and returned to the 47th Street store within the regular 1-hour lunch period. 13 Upon his arrival, Carino was told by Siegel that he was happy that he came back within the lunch hour because Marino was at that time speaking to Saphire who had al- ready called and asked what Carino was doing at the other stores. Siegel said that he told Saphire that Canno was doing union business, to which Saphire replied that he was not allowed to perform union business on compa- ny time. Carino conceded that thereafter he was told that he could speak with employees outside the stores and that the stores were places of business. On February 26 Carino filed the instant unfair labor practice charge relating to his transfer, and on March 16 or 17 he told Saphire that he had withdrawn his griev- ance. 14 Saphire invited him to come to his office at his leisure to "talk about your future." Carino never did so. On April 1 Carino and Siegel had a 2- to 3-hour con- versation in a bar during which they discussed the casual shoe commission arbitration which was to be held the following day. In the conversation, Siegel told Carino that the Union took care of its "problem" with Perez15 12 Perez was not an employee of Respondent 13 At the hearing the General Counsel amended the complaint to allege that Marino is an agent of Respondent The parties stipulated that Marino is primarily a bookkeeper who travels to various stores and occa- sionally works as Saphire's secretary She also has access to payroll records I find that there is insufficient evidence to find that Marino is an agent of Respondent There was no proof that she possessed actual or apparent authority to speak for Respondent or to bind it by her acts She is not alleged to be a supervisor Her position is essentially a clerical em- ployee The evidence fails to show that Respondent placed her in a posi- tion where the employees could reasonably believe that she was speaking for management Maremont Corp, 251 NLRB 1617, 1625 (1980) 14 On March 15 Carino sent a letter withdrawing the grievance 16 As noted above, Perez was discharged by the Union about February 17 and "how the company is taking care of their problem" with you. Carino responded that Carino knows that Local 888 is a "company union" but that Carino could "easily get rid of them." Siegel asked what he would want to remove the Union-Carino answered that he would accept $100,000 and his pension. i 6 Siegel stated that Saphire, who wanted to get rid of the Union, would be interested in speaking with Carino about this matter. Siegel offered to act as an intermediary for a $10,000 commission. Carino then told Siegel that he did not want to undertake to eliminate the Union. i 7 Siegel then said that Carino should bring another union in. Carino agreed, saying that he could not work for Respondent without union representation. Siegel then asked if Carino would work for him as a manager in another company that Siegel was considering working for. Carino refused the offer saying that he had many "things to do with Florsheim " The following day, April 2, Siegel, Carino, and Sa- phire had a brief conversation about cars. After Saphire left, Siegel told Carino that if Saphire knew that he was a good mechanic, he would give him $50,000 just to get rid of him so he could open a used-car repair shop. At the arbitration hearing that day, Carino was testifying on cross-examination when a tentative settlement of $15,000 was reached. 18 The following day, April 3, Siegel asked Carino, "[N]ow that you won, what are you going to do?" Carino answered that he did not consider it a victory, but rather a learning experience for himself and Re- spondent, and that he would consider accepting a posi- tion as a manager. Siegel then said: "John, as a friend, I'm telling you don't even as [Saphire] for a manager's job because he'd fire you within a month after you dropped out of the Union . . you have no future at Florsheim." Carino replied that he would remain as a salesmen. The next day, April 4, Carino spoke with Siegel and Pauline Marino. Marino complained about the incompe- tence of Respondent's new managers, and asked Carino why he did not accept a position as a manager since he has long tenure and is an excellent employee. Carino re- plied that he would be fired within 1 week if he did so. Marino responded that her soiis had been active on behalf of the Union before their appointment as manag- ers of Respondent. Carino answered that they may have been vigorous supporters of the Union at one time, but they never filed a grievance against Respondent or won an award Marino then said: "John, you're right. Stay as a salesman, stay where you are." Thereafter, in November or December, Carino was again transferred-this time to the Wall Street store to replace a salesman who had resigned At the time of this latest transfer, Saphire told him that the 47th Street store did not require a good salesman. Apparently, business 16 Carino admitted that he was serious about this offer 1' On cross-examination , however, Carmo stated that he told Siegel that he would speak to Saphire about his proposal to remove the Union for $100,000 1s The settlement still has not been made final due to a dispute con- cerning tangential issues not material to this case FLORSHEIM SHOE SHOPS 93 had declined rapidly there so only four salesmen were needed. 2. Respondent's case New York General Manager Emil Saphire testified that he has sole authority to decide such matters as the hire, fire, and transfer of employees. He stated that he frequently transfers employees to help a store's business; for example by moving an employee from a store having low or declining sales volume to a store with high or in- creasing business. Saphire stated that Carino's transfer was made because, during the period of September through December 1981,19 the sales volume of the 7th Avenue store had declined $8212 while the business at the 47th Street store had increased $38,995. Saphire denied any unlawful motivation in his decision to shift Carino to the 47th Street store. Transfers of two other salesmen involving different stores were made on the same day that Carino was moved. Indeed, the evi- dence establishes that transfers have been routinely made in the past, 2 ° and that Carino was transferred three times previously. Saphire denied having any conversation with Manager Siegel about bribing anyone to eliminate the Union or to finance Carino in an auto-repair venture, and also denied speaking with Carino about the casual shoe commission matter. No store managers testified.21 B. Discussion and Analysis 1. The alleged threats The complaint alleges that in February 1982 Respond- ent, through Store Manager Siegel, threatened Carino with unspecified reprisals and, in separate incidents on April 2, 1982, and in the month of April 1982, threatened him with discharge. Siegel did not testify.22 a. February 17, 1982 As set forth above, Carino solicited employees at cer- tain stores to sign a petition in behalf of Union Repre- sentative Perez. On his return to his location, Carino was told by Store Manager Siegel: "Thank God that you got back within that hour because you know, they're looking to get you." The General Counsel alleges this as a threat of unspecified reprisals against Carino-because of his protected activities as shop steward and as a grievant. I agree. Siegel's statement to Carino, made in the context of Siegel's awareness that Carino was engaging in protected conduct on his own time,23 constituted a threat that if 19 Saphire "tracked" the two stores' volume during that period 20 Undisputed documentary evidence was received which showed that from February 1981 through November 1982 transfers of employees were made on 82 occasions on a nearly monthly basis 21 Siegel, who is still employed by Respondent, was not called to testi- fy 22 The failure of Respondent to call Siegel permits me to draw an in- ference that his testimony would have been adverse to Respondent had he testified Maxwell's Plum, 256 NLRB 211, 213 fn 9 (1981) 23 It was only thereafter that Carino was told that he could speak to employees outside the stores Carino did not carefully observe the Respondent's rules, that it would seize on an opportunity such as overstaying his lunch hour (notwithstanding that he had received permission from his store manager to do so) to take cer- tain unspecified action against him Accordingly I find that this threat violated Section 8(a)(1) of the Act. b. April 2, 1982 As set forth above, Siegel told Carino that if Saphire knew that he was a good mechanic, Saphire would give him $50,000 just to get rid of him so that he could open a used-car repair shop. Saphire denied any involvement in or knowledge of the alleged offer of $50,000 and I credit that denial. Siegel was thus apparently speaking on his own. Never- theless, the impact upon the listener, Carino, was the same, regardless of whether or not Saphire authorized the alleged offer. It constitutes an unequivocal desire by Respondent's supervisor to be rid of Carino, and there- fore is a threat to discharge him in violation of Section 8(a)(1) of the Act. c. April 1982 As set forth above, on Carino's telling Siegel that he was interested in a position as a manager, Siegel told him not to ask Saphire for such a promotion because "he'd fire you within a month after you dropped out of the Union." This is a clear threat to Carino's job tenure in that Respondent was telling Carino that if he was pro- moted out of the bargaining unit he would be thereby deprived of the protection of Section 7 of the Act, and it would effectuate its threat to discharge him.24 "In the circumstances, the purpose of such a statement could only be to cause [Carino] to withdraw from all protected activities (whether bargaining unit, bargaining commit- tee, or pursuit of nondiscriminatory consideration for promotion) under threat of being removed from the Act's protection and discharged."25 Such a threat violat- ed Section 8(a)(1) of the Act. d. Concluding observations Respondent argues that no nexus between the threats and Carino's protected activities has been shown. Al- though it is true that Respondent did not, in its threats to Carino, mention his activities as steward or the grievance matter, I believe that a fair inference may be drawn that the threats, as set forth above, were made because of his protected activities. I note in this regard his vigorous ac- tivities as steward, his credited testimony that he told Sa- phire that he was considering filing a grievance about the casual shoe matter, Saphire's warning that such might "open a can of worms," and Manager Old's state- ment to him, after his appearance at the arbitration hear- ing, that he would enjoy working at the 47th Street store .2 6 24 Although Carino spoke of applying for a manager's position, there is no evidence that Respondent could not, on its own, promote an em- ployee 25 Continental Manor Nursing Home, 233 NLRB 665, 670 (1977) 20 Olds did not testify and I credit Canno's testimony about that state- ment 94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I reject Respondent's arguments that the statements are not violative of the Act because (1) Carino and Siegel were friends, (2) Carino did not consider the state- ments to be threatening, and (3) Siegel had no authority to carry out the threats. Warnings from a friendly supervisor, close to man- agement, are no less a threat than warnings from a hostile supervisor. Indeed, warnings from such a friendly source may carry a greater aura of reliabil- ity and truthfulness and may therefore, in a-sense, be doubly effective.27 Moreover, the test of whether certain statements con- stitute interference, restraint, and coercion under Section 8(a)(1) of the Act does not depend on' the successful effect of the coercion. "Rather, the illegality of an em- ployer's conduct is determined by whether the conduct may reasonably be said to have a tendency to interfere with the free exercise of employee rights under the Act "28 In addition, even assuming that Siegel had no authority to discharge Carino, there is no contention that Siegel would himself discharge him. Rather, the threats were that Respondent and specifically Saphire - would take certain action against Carino. Saphire, as the general manager, admittedly possessed the authority to discharge employees. Moreover, the test in determining whether an employer is responsible for coercive statements by a su- pervisor is not whether the statements were made within the scope of the supervisor's employment, but "whether the employees have just cause to believe that the super- visor is acting for and on behalf of management . . . and in the absence of special circumstances ... an employer is responsible for coercive statements and other conduct of a supervisor."29 The facts set forth above clearly show that the threats had a reasonable tendency to interfere with Carino's ex- ercise of his rights under the Act. Thus, Carino was put on notice, when engaged in "union business" during his lunch hour, that Respondent was "looking to get" him and that he should be cautious in engaging in such union activities. In addition,. after expressing an interest in be- coming a manager by exercising his right to nondiscrim- inatory consideration for promotion, he was immediately told that he would be discharged shortly after leaving the protection of the bargaining unit. Carino then stated that he would remain as a salesman. Respondent also argues that Carino's offer to take $100,000 to ;eliminate the Union taints his other testimo- ny: I disagree. Although such an offer, from the steward of a. union arid' employees he undertook to faithfully rep- resent, says little for his, ethics, he did not ' pursue the matter thereafter with Siegel or Saphire. Moreover, it does not cause me to disbelieve his other, especially un- contradicted, testimony. 2. The transfer The General Counsel alleges that on January 22, 1982, Respondent transferred Carino from the 7th Avenue store to its location at 47th Street because of his activi- ties in filing and pursuing the grievance of May 1980 and also because of his activities on behalf of the Union as shop steward. The basis for the alleged discrimination in the transfer is that Carino was thereby required to work until 10 p.m. 3 nights per week, whereas his former location was not open in the evenings and he therefore did not work late there. In addition, Carino's transfer to the 47th Street store resulted in an increase, from four to five, in the number of salesmen employed there, and accordingly his share of the sales was thereby diminished.30 The evidence is clear that Carino was an outspoken and aggressive shop steward who did not hesitate to con- front Respondent with issues that affected the • Union's members. According to Carino's uncontradicted testimo- ny, Manager Derek Howard accused him of being the shop steward who carried the by-laws in his back pocket, and Manager Siegel also made the same observa- tion. Carino resolved matters with Respondent relating to a store manager's selling on the floor, and a salesman's complaint that he was assigned to the.,stockroom. More- over, Carino initiated the casual shoe commission griev- ance, attended settlement meetings, and testified at the arbitration hearing concerning the grievance 'which re- sulted in a substantial monetary settlement. - Respondent, by its managers, exhibited animus toward Carino. In the fall of 1980,-Siegel warned Carino that his activites were being watched. Howard berated Carino in November 1981 as being "nothing," notwithstanding his position as steward, and subsequent to the transfer, Siegel violated Section 8(a)(1) of the Act, as I have pre-' viously found, by threatening ' Carino that Respondent was trying to "get him," that Saphire would give him $50,000 just to get rid of him, 'and that if he should obtain a promotion he would be discharged within 1 month. All of the above statements of the managers31 were uncontradicted inasmuch as they did not testify.32 The postdiscrimination statements of Siegel are relevant in demonstrating the animus of Respondent toward Carino.33 In addition, the transfer, coming only 2 weeks after Carino's appearance at the arbitration hearing, supports a finding that, notwithstanding the filing of the grievance 1-1/2 years earlier, his active pursuit of it and also his activities as steward were related to Respondent's deci- sion to transfer him. I: therefore find and conclude that the 'General Counsel has made a prima facie showing 30 Although the evidence reveals that Carino's commissions declined after his transfer, it is difficult to attribute this solely to the transfer inas- much as a salesman's commissions are quite variable, depending on such unpredictable criteria as effort and volume of sales in the store 31 It was stipulated that the store managers involved are supervisors within the meaning of the Act 27 Rust Craft Broadcasting Co, 214 NLRB 29, 33 (1974), Dixisteel Buildings, 186 NLRB 393, 402 (1970) 28'El Rancho Market, 235 NLRB 468, 471 (1978) 29 Wolverine World Wide, 243 NLRB 425, 432 (1979) 32 The failure of Respondent to call the store managers permits me to draw an inference that their testimony would have been adverse to Re- spondent had they testified -Maxwell's Plum, 256 NLRB 211, 213 fn. 9 (1981) • 13 Lauderdale Lakes General Hospital, 227 NLRB 1412, 1423 (1977) FLORSHEIM SHOE SHOPS 95 that Carino's initiation34 and pursuit of the casual shoe commission grievance and his activities as steward were motivating factors in Respondent's decision to transfer him to the 47th Street store.35 Contrary to Respondent, I find that Carino's protests in spring of 1979 to Managers Helig and Siegel, and General Manager Saphire that he was not being paid the proper commission on his sales of the casual shoes, and his additional statement to Saphire that he had discussed with an attorney the meaning of the collective-bargain- ing agreement and the possibility of filing a grievance, constitutes protected concerted activity. The Board has held that: An individual's actions may be considered to be concerted in nature if they relate to conditions of employment that are matters of mutual concern to all the affected employees. Indeed, we are hard pressed to think of a matter of more vital concern to employees than . . . receiving payments for one's labor.3 6 Furthermore, an expressed intention by an employee to file a grievance, which grievance may establish prece- dent for other employees, is privileged by Section 7 of the Act.37 Invocation by an employee, either individually or in concert with others, of a contractual grievance pro- cedure to implement what he believes to be the job benefits or rights accorded him by the collective- bargaining agreement is a protected concerted ac- tivity within the meaning of Section 7 of the Act.38 Carino's protest of the casual shoe commission rate, his statement to Saphire that an attorney was advising him about to the meaning of the contract and whether to file a grievance, and his later protests to Union Representa- tive Perez, which led to the filing of a grievance, consti- tute protected concerted activity. Clearly, Carino's ac- tions concerned matters of mutual concern to all the salesmen inasmuch as they related to the payment of commissions on the shoes which all of them sold. The grievance, which would establish a precedent for all the salesmen on this issue, was later expanded to include all the salesmen, and ultimately resulted in a monetary set- tlement for all the salesmen. Having thus concluded that the General Counsel has made a prima facie showing sufficient to support an in- ference that his protected conduct was a motivating factor in Respondent's decision to transfer him, I find that it therefore becomes Respondent's burden to demon- strate that it would have transferred Carino even in the absence of his protected conduct. I am satisfied that Re- spondent has met its burden in this regard. Respondent asserts and I agree that its decision to transfer Carino was based on legitimate business consid- erations, specifically, the decision by Saphire, on "track- ing" the two stores' sales volume, that the volume of the 47th Street store was expanding, while that of the 7th Avenue store was declining. Respondent denies any un- lawful motivation in its decision to move Carino. As set forth above, Saphire had followed the two stores' business activities from September through De- cember 1981 and found that the volume of the 7th Avenue store had declined $8212 while the business in the 47th Street store had increased $38,995 in that period, which necessitated the change. I note further that transfers of two other salesmen, involving different stores, were made on the same day that Carino was shift- ed, and that some 82 transfers were routinely made from February 1981 through November 1982, on a nearly monthly basis, and that Carino had been transferred, without complaint, three times before. Moreover, the parties' collective-bargaining agreement gives Respond- ent the unequivocal right to transfer a salesman.39 The General Counsel urges that the transfer was not made in good faith because (1) there was evidence by Siegel and the other 47th Street store employees that an additional employee was not needed, (2) Diaz, a newly hired employee at the 7th Avenue store, was not chosen for the transfer, and (3) Saphire had previously told Carino in November 1981, only 8 weeks before the trans- fer, that he would not put him into a store which had late hours because he did not want to hurt Carino, as a steward and as a senior employee. I disagree. Although I credit Carino's uncontradicted testimony that Siegel told him that a fifth employee was not needed at the 47th Street store, it is obvious that Siegel and the employees at the 47th Street store sought to exclude him because of their own self-interest in not sharing the potential sales commissions with another em- ployee 40 Saphire, on the other hand, reviewed the sales figures objectively pursuant to his responsibility, as gen- eral manager, to facilitate higher sales volume. The un- disputed documentary evidence about the business done by the two stores demonstrates that Saphire was justified in his conclusion that one employee should be trans- ferred from the 7th Avenue to the 47th Street store. Moreover, Saphire candidly admitted that toward the end of the year he told Carino that 47th Street no longer needed a good salesman and therefore transferred him to a Wall Street location. Thus, although Carino's transfer to the 47th Street store appeared to be a proper decision at the time due to its expanding business, Saphire's good faith was clearly shown in his willingness to shift him from that location when business declined there, which it did rapidly. Furthermore Carino, and not Diaz, a new employee, was chosen for the 47th Street store because Carino, being an experienced salesman, would have been able to more effectively exploit its increased volume. Moreover, the parties' contract does not require that se- niority be considered in transfers. 34 I find that Carino did not in fact file the grievance Perez denied telling him to file a grievance and denied that he filed it 39 Respondent need only give the Union and the affected employee 7 35 Wright Line, 251 NLRB 1083 (1980) days' notice prior to the transfer, which was done here 36 Air Survey Corp, 229 NLRB 1064 (1977) 40 There was evidence that, under certain circumstances, such as over- 37 E. A Nord Co, 250 NLRB 403, 407 (1980) flow business, a store manager was permitted to sell goods and thereby 38 Welco Industries, 237 NLRB 294, 299 (1978) earn commissions 96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Saphire's statement to Carino, in November 1981, that he would not be moved to a store with late hours, be- cause he did not want to "hurt" him is troublesome. This statement, which I credit inasmuch as it was specifically not denied by Saphire, came at a time when Saphire was apparently "tracking" the volume of the two stores. I can only conclude that when Saphire made the decision, in late December, to transfer Carino, he decided to trans- fer him to 47th Street because legitimate business circum- stances required his shift .41 I note in this regard that Carino had previously worked in two other locations having late evening hours during his career with Re- spondent, and that, according to him, he requested a transfer from those locations for reasons other than their hours of business. I place no reliance on Respondent's official Brien's al- leged attempted intimidation of Carino at the arbitration hearing. The testimony by the General Counsel's wit- nesses that Brien sat with his arms crossed and fists clenched, staring at Carino, is too vague to support a finding that Brien was hostile to Carino. Brien was un- derstandably annoyed at having to travel to New York from Chicago for the hearing only to find that it was being adjourned. Under all the above circumstances, I find that Carino would have been transferred to the 47th Street store even in the absence of his activity in initiating and pursu- ing a grievance relating to the casual shoe commissions and his activity as shop steward. It follows, and I con- clude, that the transfer of Carino to the 47th Street store did not violate Section 8(a)(1) and (3) of the Act. CONCLUSIONS OF LAW 1. Respondent Florsheim Shoe Shops, Inc. is and has been at all times material herein an employer engaged in commerce within the meaning of the Act. 2. The Union, Local 888, United Food and Commer- cial Workers International Union, is a labor organization within the meaning of the Act. 3. By threatening its employees with unspecified re- prisals and with discharge, Respondent has violated Sec- tion 8(a)(1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 5. Respondent did not violate Section 8(a)(1) and (3) of the Act by transferring John Carino to the 47th Street store. 41 I credit Saphire's testimony that he, and not Respondent 's officials in its Chicago headquarters, decided to transfer Canno. Saphire had direct responsibility for such employee transfers and it is most unlikely that headquarters would be involved in the numerous shifting of employ- ees between stores The correspondence reflecting the transfers did not indicate that a copy of the transfer letter was sent to Chicago REMEDY Having found that Respondent has engaged in certain unfair labor practices, I find it necessary to order Re- spondent to cease and desist therefrom and to take cer- tain affirmative action designed to effectuate the policies of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed42 ORDER The Respondent, Florsheim Shoe Shops, Inc., New York, New York, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Threatening its employees with unspecified repris- als and with discharge because they initiate and pursue grievances or because of their protected concerted ac- tivities. (b) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist labor or- ganizations, to bargain collectively through representa- tives of their own choosing, and to engage in other con- certed activities for the purpose of collective bargaining or other mutual aid or protection or to refrain from any or all such activities. 2. Take the following affirmative action which is nec- essary to effectuate the policies of the Act. (a) Post at its place of business in New York, New York, copies of the attached notice marked "Appen- dix."43 Copies of the notice, on forms provided by the Regional Director for Region 2, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, de- faced, or covered by any other material. (b) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. IT IS FURTHER ORDERED that the complaint be dis- missed insofar as it alleges violations not specificially found herein. 42 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses 43 If this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the Na- tional Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board "