Biederman Furniture Co.

National Labor Relations Board - Board Decisions

Apr 18, 1967

164 N.L.R.B. 57 (N.L.R.B. 1967)

BIEDERMAN FURNITURE COMPANY
Biederman Furniture Company and Herbert
Jagust , An Individual . Case 14-CA-3864.
April 18,1967
DECISION AND ORDER
BY MEMBERS BROWN, JENKINS, AND ZAGORIA
On November 10, 1966, Trial Examiner
Robert L. Piper issued his Decision in the above-
entitled proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions to the
Decision together with a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in this case, and hereby adopts the
findings,' conclusions, and recommendations of the
Trial Examiner, as modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that Respondent Biederman
Furniture Company, St. Louis, Missouri, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended
Order.
i The Trial Examiner found that the Respondent changed its
method of handling credit purchases in its various stores and that
employee Jagust was outspoken in his opposition to the change
The record shows, however, that the change was merely proposed
and was not effectuated, and that Jagust's opposition was directed
to the proposal These misstatements, however, do not affect the
Trial Examiner 's ultimate conclusions
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ROBERT L. PIPER, Trial Examiner: This proceeding
under Section 10(b) of the National Labor Relations Act,
as amended, was heard by me in St. Louis, Missouri, on
June 20 and 21, 1966, pursuant to due notice. The
complaint, which was issued on April 5, 1966, on a charge
i All dates hereinafter refer to 1965 unless otherwise indicated
57
dated January 13, 1966, alleged in substance that
Respondent engaged in unfair labor practices proscribed
by Section 8(a)(1) and (3) of the National Labor Relations
Act, as amended, by a specific act of interference,
restraint, and coercion and discriminatorily transferring
an employee to a less desirable position. Respondent's
answer denied the alleged unfair labor practices. Both
parties filed briefs.
Upon the entire record in the case and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
Respondent is a Maine corporation with its office and
place of business at St. Louis, Missouri, where it is
engaged in the retail sale and distribution of household
furnishings, furniture, appliances, and related products at
various stores in St. Louis, Missouri, and vicinity. During
the past year Respondent sold and distributed products,
the gross value of which exceeded $500,000, and
purchased and caused to be transported and delivered to
its stores in Missouri goods and materials valued in excess
of $50,000 directly from points located outside the State of
Missouri. Respondent admits and I find that it is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 655, Retail Store Employees Union, Retail Clerks
International Association , AFL-CIO (the Union herein), is
a labor organization within the meaning of Section 2(5) of
the Act. Respondent 's sales employees are represented for
the purposes of collective bargaining by the Union.
III. THE UNFAIR LABOR PRACTICES
A. Introduction and Issues
Herbert Jagust, an individual, is the Charging Party and
was employed by Respondent' as a salesman at its
Normandy store. Respondent and the Union had a
collective-bargaining agreement in effect. In early 1965,'
about February, Respondent changed the credit procedure
used in its stores in the sale of furniture to customers. A
number of its salesmen, particularly those at the
Normandy store, were strongly opposed to this change in
Respondent's credit procedure, because they believed
that the change entailed additional work on their part
without compensation and with a loss of selling time and
was in violation of the collective-bargaining agreement.
Jagust was both the leader and spokesman of the salesmen
at the Normandy store in presenting their ultimately
successful opposition to such change to both the Union
and Respondent. On November 1, Respondent transferred
Jagust from his position as salesman at the Normandy
store to an allegedly less desirable position as a salesman
at its Franklin store, purportedly because of his selling too
much low markup merchandise contrary to Respondent's
policy.
The principal issue as framed by the pleadings is the
alleged discriminatory transfer of Jagust to a less desirable
position because of his union and concerted activities. A
subsidiary issue is an alleged statement by a supervisor to
164 NLRB No. 12
58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an employee that Respondent would "get" Jagust because
of his union and concerted activities.
B. Chronology of Events
Respondent operated 31 furniture and appliance stores
at which it employed approximately 300 salesmen.
Included among its stores were a number in the greater
St. Louis area, including the Normandy store at
Normandy, Missouri, the Franklin store in downtown
St. Louis, and several other stores mentioned in the
record. In early 1965, about February, Respondent
decided to change its method of handling credit purchases
in its various stores. Prior to such change, upon the
consummation of a sale the salesmen took customers
buying on credit to the store's credit department and thus
were free thereafter to wait on additional customers who
might be in the store. After the change, adopted in
connection with a new revolving, as distinguished from
installment, credit plan, Respondent directed its salesmen
to handle the credit negotiations with the customer, such
as the amount of downpayment, the existence of a charge
account or credit card, the terms of payment, and other
details. This necessarily required the salesmen to spend
additional time with each credit customer, and reduced
the amount of selling time available to each salesman. The
salesmen were paid on a commission basis, 5 percent on
the first $1,800 of sales per week, or $90, and 3 percent on
all additional sales. The $1,800 a week, or $360 a day, was
a quota which each salesman normally was expected to
meet. Jagust was a salesman at the Normandy store. The
union steward was Henry Manne. Ted Fister was the
manager of the Normandy store until on or about April 10;
thereafter Joseph Dwyer became the manager. Eugene
Bulejski, manager of Respondent's North County store,
was also the supervisor of the Normandy store and the
immediate superior of its manager. His superior, Ivan
Silberman, was the vice president in charge of sales for
Respondent.
In early February a representative of Respondent
visited the Normandy store and announced and explained
Respondent's new credit procedure to the salesmen.
There was immediate opposition by the salesmen, both
because they felt that the program would deprive them of
selling time and consequently earnings, and because they
believed that the change in credit procedure was a
violation of the collective-bargaining contract between
Respondent and the Union. After the representative left,
the salesmen decided to hold a meeting away from the
store to discuss the problem. About 2 weeks later, all of
the salesmen including Manne, the union steward,
attended this meeting. The salesmen unanimously,
including Manne, elected Jagust as their spokesman to
present their opposition to the changed credit procedure to
the Union, because they felt that Jagust was better able to
present their point of view than Manne. A few days later
Jagust contacted James W. Brown, the Union's business
representative, and advised him of Respondent's change
in credit procedure and the employees' opposition thereto
and belief that it was in violation of the contract. This was
the first notice the Union received concerning
Respondent's changed credit procedure. The collective-
bargaining contract between Respondent and the Union
contained the following provision:
If the present system and procedure of signing up
customers and checking their credit is changed, and
in the further event that such change requires the
sales employees covered by this contract to do the
work of sign-up and credit employees, then this
contract may be reopened for negotiation as to
additional compensation for the sales employees so
affected, by giving five days notice.
A few days later Brown and Edgar Sargaent, president
of the Union, visited the Normandy store and discussed
the employees' complaints, particularly their opposition to
the new credit procedure, with Manne and Jagust. About 2
weeks later, in mid-March, P. W. Schaefer, Respondent's
general manager, came to the Normandy store to discuss
the employees' "grievances" with Jagust and Manne.
Schaefer did not testify and the record does not reveal how
he knew of any "grievance." Jagust advised Schaefer of a
number of complaints the employees had, specifically
their opposition to the new credit procedure and their
belief that it was a violation of the contract, and that Jagust
had been selected to speak for all of the employees.
Schaefer made little or no comment. About 2 weeks later,
in late March, Respondent's treasurer, Mr. Travers,
visited the Normandy store to explain the advantages of
Respondent's new credit procedure to Manne and Jagust.
Jagust expressed the salesmen's opposition to the
procedure and informed Travers that Jagust had been
selected as spokesman for all of the salesmen at the
Normandy store.
On April 2 Respondent for the first time notified the
Union by letter of the changed credit procedure. Sometime
between April 2 and 12, a meeting between the Union and
Respondent was held at the offices of the Union.
Representing Respondent were President William
Biederman, Silberman, Travers, Schaefer, and Schwartz,
a supervisor of several stores. Brown, Sargaent, and the
shop stewards including Manne from Respondent's
various St. Louis and surrounding area stores represented
the Union. The only employee present at the meeting who
was not a steward or official of the Union was Jagust,
pursuant to his request to represent the employees of the
Normandy store. The new credit procedure was explained
by Schaefer. Thereafter a discussion in excess of 2 hours
ensued, during which various employees, particularly
Jagust, expressed their opposition to the new procedure
and stated that it was in violation of the contract. Jagust
spoke as much if not more than anyone present. In
addition to the new credit procedure, Respondent also
proposed a change in working hours from 5 days and 3
nights to 4 days and 4 nights, which also met with
employee opposition. Nothing in particular was decided at
this meeting.
On April 12 the Union held a general membership
meeting concerning Respondent's two changes, at which
Jagust again was a vocal leader of the opposition. Both
changes were rejected by the membership. The Union
officially notified Respondent of this action. As a result, on
April 19, Respondent issued a memorandum changing its
new credit procedure from mandatory to voluntary on the
part of the salesmen. The Union took no further action
with respect to the changed credit procedure.
Leonard Fleck was employed by Respondent as a
salesman at its North County store. He was also an
executive trainee for approximately 1 year, a program
under which Respondent selected and trained salesmen to
become store managers . As such he was under the direct
supervision of Bulejski. Fleck was a friend of Bulejski but
had only met Jagust one or two times. Fleck was one of the
salesmen at the North County store who objected
strenuously to Respondent's changed credit procedure.
Shortly after the meeting of the union and company
representatives between April 2 and 12, Bulejski told
BIEDERMAN FURNITURE COMPANY 59
Fleck that his friend Jagust was getting himself into
trouble because Silberman did not like Jagust's attitude at
that meeting . Fleck replied that he did not see how
Respondent could do anything to Jagust, that he was
merely a victim of being a good speaker and as such the
men had appealed to him to be their spokesman. About a
month later, Bulejski asked Fleck if he remembered what
Bulejski had told him about Jagust. When Fleck replied
that he did, Bulejski told Fleck that Respondent had a
meeting of officials and was going to "get" Jagust. Fleck
asked how they planned to get Jagust. Bulejski replied
they planned to do so on the basis of Jagust's high sales of
"X" merchandise. Fleck objected and asked Bulejski if he
or Dwyer, the manager of the Normandy store, had not
objected to such a proposal at the meeting. Bulejski
replied that Dwyer had stated at the meeting that he
thought Respondent was making a mistake, but Silberman
had told him that they knew what they were doing.
Bulejski further informed Fleck that Bulejski had been
instructed to order Dwyer to talk to Jagust about his sales
of X merchandise. Bulejski denied such conversations
with Fleck. Bulejski admitted that later, at the time of
Jagust's transfer from the Normandy store, hereinafter
discussed, Fleck objected strenuously and said that
Respondent was out to get Jagust on the basis of his high
sales of X merchandise because he had been outspoken
with the Union against Respondent's changed credit
procedure and proposed change of hours. I credit Fleck.
Respondent classified its merchandise into three
general categories , known as S, 0, and X. S merchandise
was of the best quality and carried the highest markup.
Naturally Respondent desired to sell the highest possible
amount of this category. 0 merchandise had a medium
markup. X merchandise carried the lowest markup and
generally was advertised or sale merchandise. Respondent
did not want its salesmen to sell large amounts of X
merchandise because Respondent 's margin of profit was
much smaller whereas the salesman 's commission was the
same, namely, 3 percent. Respondent had a general goal or
policy of wanting its salesmen's overall volume of sales to
consist of approximately 70 percent S merchandise, 20
percent 0 merchandise, and 5 percent X merchandise.
Because of this policy some salesmen deliberately tried to
avoid selling X merchandise in order to prevent their
monthly percentage of such sales from exceeding the
approximate 5 percent desired by Respondent.
Respondent issued monthly sales volume reports of all
salesmen at each store. These reports listed the salesmen
from top to bottom in the order of their total S and 0 sales
and total volume, but in inverse order from bottom to top
on their X sales. In other words, the salesmen who sold the
largest amount of X merchandise was listed on the bottom
of the X list.
Jagust had been employed at the Normandy store since
May 1960, was one of Respondent's top salesmen, and
consistently ranked among the top 4 salesmen at the
Normandy store, which normally employed 12 salesmen.
During this same 5-year period, he consistently ranked
among the high three or four in sales of X merchandise.
This of course meant that he consistently ranked near the
bottom of Respondent's monthly inverse list of X sales. On
several occasions Fister, manager of the Normandy store
until about April 10, had informally spoken to Jagust
about his X sales, suggesting that he should improve them;
i.e., decrease his sales of X merchandise. Dwyer, who
became manager of the Normandy store on or about
April 10, had as a salesman previously worked with Jagust
and considered him one of the top men in Respondent's
employ and in the Normandy store. After Jagust's
outspoken and successful opposition to Respondent's
changed credit procedure, Silberman on several occasions
instructed Bulejski to discuss with Dwyer Jagust's high
sales of X merchandise, with the object of having Dwyer
discuss same with Jagust. Dwyer spoke to Jagust on
several occasions about his X sales, pointing out that they
were high. On each occasion Dwyer did so pursuant to
instructions from Bulejski. Bulejski testified that he
discussed the sales performance of the various men with
the store managers as a regular routine and that therefore
from time to time he called Fister's and Dwyer's attention
to Jagust's high sales of X merchandise. However, an
analysis of Bulejski's testimony coupled with that of
Dwyer and Silberman makes clear that on such occasions
Silberman had discussed Jagust's sales of X merchandise
with Bulejski and suggested or directed that he discuss the
matter with Dwyer. Dwyer could not recall Bulejski ever
having discussed with him the X merchandise sales of any
other salesman, but was certain that each time he spoke to
Jagust about his sales of X merchandise it was because of
Bulejski's instructions to do so.
On August 30 Silberman directed Bulejski to order
Dwyer to issue a written reprimand to Jagust concerning
his sales of X merchandise. This reprimand listed Jagust's
sales of X merchandise as a percentage of his total sales
for each of the preceding 7 months and noted that Jagust
had the highest percentage of sales of X merchandise in
March, April, and July. His percentages ranged from 4.4 to
11.9. Both Dwyer and Bulejski admitted that they had
never before issued or been instructed to issue a written
reprimand to any salesman for any reason, including sales
of X merchandise. Jagust had never been warned that his
X sales might result in a written reprimand, transfer, or
any other action. Dwyer opposed the issuance of the
written reprimand, because he felt that it was unnecessary
and Jagust could decrease his sales of X merchandise. On
or about October 1 Manne resigned as the Union's steward
at the Normandy store and the employees elected Jagust
as his successor. Dwyer learned of this the same day and
Bulejski a few days thereafter. The normal procedure of
the Union was to notify Respondent whenever a new
steward was selected.
Respondent's monthly reports concerning the sales,
volume of the salesmen normally were issued about the
15th day of the following month. On or about October 20,
shortly after the sales figures for September were
available, Silberman held a meeting of Respondent's
officials to consider the transfer of Jagust from the
Normandy store to Respondent's Franklin store. The
meeting was attended by Bulejski, Dwyer, and several
other store managers. Dwyer opposed Jagust's transfer.
While the matter was discussed at the meeting, Silberman
had already decided to transfer Jagust. Silberman told
Bulejski and Dwyer that it was because of Jagust's
continued high sales of X merchandise. At the same
meeting it was decided to transfer salesman Jesse Smith
from the Normandy to the Southwest store because he was
a good salesman, the Southwest store needed experienced
and well-qualified help, and a decline in business at the
Normandy store had resulted in the need for one less
salesman there. Another salesman was transferred to the
Normandy store after the transfer of Jagust and Smith.
Silberman instructed Bulejski to notify Jagust on
October 30 that he was being transferred to the Franklin
store as of November 1 because of his continued high sales
of X merchandise in the hope that the transfer might
improve his sales performance.
60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On October 30, Bulejski so notified Jagust . Jagust
objected and offered to resign , but on Bulejski's
suggestion that Jagust report to the Franklin store on
November 1 did so. Jagust and Smith filed grievances with
the Union concerning their transfers. Brown and Sargaent
discussed Jagust ' s grievance with Respondent.
Respondent advised the Union that the reason for Jagust's
transfer was his continued high sales of X merchandise.
Several months after Jagust 's transfer to the Franklin
store, he was relieved of his duties as steward at the
Normandy store and the employees selected a successor.
The Union decided to hold Jagust's grievance in abeyance
pending the outcome of the instant proceeding. After
Jagust 's transfer to the Franklin store, his sales and
income declined substantially , as will be considered more
fully hereinafter.
C. Interference , Restraint , and Coercion
The complaint alleged that Respondent, through its
Supervisor Bulejski , told an employee that Respondent
would "get" Jagust on the basis of Jagust's X sales
because he had engaged in activities on behalf of the
Union and concerted protected activities . It has been
found hereinabove that Bulejski made such a statement to
Fleck. I accordingly conclude and find that by such
statement , warning, or threat , Respondent engaged in
interference , restraint , and coercion in violation of
Section 8(a)(1) of the Act.
D. Discrimination in Hire and Tenure and Terms and
Conditions of Employment
The complaint alleges that on or about November 1
Respondent transferred Jagust from his position as
salesman at the Normandy store to a less desirable
position as salesman at the Franklin store because of his
union and concerted activities. The record establishes
beyond dispute that Respondent ' s assigned reason for
Jagust ' s transfer was his continued high sales of X
merchandise. Bulejski told Dwyer that that was the reason
for the transfer, and Silberman told both of them at the
meeting on or about October 20 that that was the reason
for transferring Jagust . Bulejski advised Jagust that was
why he was being transferred. Silberman and Schaefer
also advised the Union at the grievance meeting that that
was the only reason for Jagust's transfer . The record
establishes clearly that Respondent's assigned reason for
transferring Jagust, his continued high sales of X
merchandise , was in fact a pretext and that the real reason
for transferring Jagust was his outspoken and successful
opposition to Respondent's changed credit procedure and
his subsequent selection as shop steward at the Normandy
store. As a result of the transfer Jagust's income declined
substantially and he was replaced as steward at the
Normandy store.
For over 5 years Jagust had been one of Respondent's
top salesmen , ranked among the first four in total sales at
the Normandy store. In the written reprimand of
August 30, Respondent listed Jagust's sales of X
merchandise on a percentage basis for the preceding 7
months. Thereafter, the August and September figures
became available and were considered by Silberman at the
meeting on October 20 when he announced his decision to
transfer Jagust . Jagust's monthly sales of X merchandise
as a percentage of his total sales for the 10 months prior to
his transfer were:
January 9.73%
February 4.40%
March 11.90%
April 11.26%
May 5.12%
June 6.30%
July 10.27%
August 8.86%
September 13.03%
October 7.12%
Total 8.71%
Although the assigned reason for Jagust's transfer was
his continued high X sales, another salesman at the
Normandy store had a higher percentage of X sales for the
10-month period and two other salesmen had
approximately the same percentage of X sales. For the 10-
month period Roma Scott had a total of 10.81 percent of X
sales. Jagust had 8.71 percent, Smith 8.42 percent, and
Eder 8 . 31 percent . When Jagust was given the written
reprimand in August because of his high percentage of X
sales for 7 months and having been the highest in 3 of
those months, Scott had a higher percentage of X sales for
the same period and was the highest in the other 4 months.
Scott was never given any reprimand or warned about his
X sales. Dwyer admitted that Bulejski requested him to
talk to Jagust about his X sales, but said that he could not
recall Bulejski ever asking him to speak to either Scott or
Smith about their X sales.
At the time Bulejski advised Jagust of his transfer,
Bulejski referred to Jagust 's September percentage, 13.03,
of X sales. In August and September, the very period
under consideration , Smith had respective percentages of
19.8 and 10.86 of X sales, a 2 months ' total substantially in
excess of Jagust. Nevertheless Dwyer could not recall ever
having spoken to Smith about his X sales. Respondent
admitted that Smith's high X sales had nothing to do with
his transfer. At the meeting on October 20 concerning the
transfers it was decided to transfer Smith to the Southwest
store because Respondent needed an experienced,
outstanding salesman and Smith filled the bill. In
describing Smith as a good , experienced salesman, the
type needed at the Southwest store, Respondent clearly
revealed its true motive in transferring Jagust . Jagust's
total sales and hence rank was substantially higher than
Smith, and Smith's percentage of X sales for the 10
months of 1965 was approximately the same. Silberman
testified that Respondent hoped to attain monthly sales of
from $12,000 to $15,000 per salesman . Respondent's
records establish that for the 10 months in question
Jagust's total sales exceeded $150,000, or $15,000 a month.
Thus Jagust had exceeded the goal stated by Silberman. In
addition , Jagust ranked fourth in total sales among the 12
salesmen . Within the same period Smith 's total sales were
$130,000, including 8.42 percent of X sales. Yet Silberman
and Bulejski both stated that Smith was selected for
transfer to the Southwest store because he was an
experienced and outstanding salesman.
Dwyer's testimony on the subject of Jagust 's transfer
was somewhat confused . Dwyer first testified that he was
against issuing the written warning in August and that at
the October meeting he opposed transferring Jagust. He
later testified that after the August report of X sales came
out, he "gave up" on Jagust and no longer cared about or
BIEDERMAN FURNITURE COMPANY 61
opposed the transfer . Jagust ' s August percentage of X
sales was 8 .86, an improvement over his July figure
contained in the written warning . On cross-examination
Dwyer said that he was opposed to giving Jagust the
written warning but was not opposed to his transfer at the
time of the October meeting. He again changed his
testimony and said that he told Silberman at that meeting
he did not agree with the decision to transfer Jagust. It
seems clear that Dwyer was in the middle. His situation
might best be described by his own statement: "So I
figured due to the fact that I was against the warning and
against this [ the transfer], I dust didn 't care because I was
in the middle ." Dwyer admitted that although Smith's
percentage of X sales went from 7.2 in July to 19.8 in
August and Scott 's went from 9 . 5 in July to 15.2 in August
(compared with Jagust ' s August sales of 8.8 percent), he
did not mention these high X sales to either Scott or Smith.
Smith 's 19.8 percent was substantially higher than any
percentage ever attributed to Jagust.
It seems clear that Respondent ' s real reason for"
transferring Jagust was his outspoken and effective
opposition to Respondent ' s changed credit program,
culminated by his election as shop steward on October 1,
which meant that thereafter he would be the official union
spokesman for the employees at the Normandy store.
Silberman 's opinion of Jagust and views concerning him
are best demonstrated by Silberman 's testimony.
Silberman testified that he looked more closely at the sales
records of Jagust and certain others than in general
because of personal experiences that he had with them.
He said that because of this experience he felt that
perhaps Jagust did not have the necessary exuberance and
was not a man that could sell merchandise . Silberman said
that he was not convinced in his own mind that Jagust
could sell successfully . On cross-examination Silberman
denied his prior testimony that he had personal experience
with Jagust and said that could only have been true if
Silberman had worked with Jagust , which he had not. He
then stated that he had a personal feeling that Jagust,
perhaps because of his lack of exuberance , was not going
to make it as a salesman because in Silberman's personal
contacts with him Jagust always seemed to be somewhat
disgruntled and unhappy . Silberman 's statement that he
felt Jagust was not going to make it as a salesman is in
sharp contrast to the undisputed fact that Jagust was one
of Respondent ' s top salesmen during his entire
employment.
In addition , Respondent twice offered Jagust a position
as an executive trainee to become a store manager, the
second time by Silberman in February just prior to the
introduction of the changed credit procedure and Jagust's
opposition thereto. This clearly demonstrated that prior to
such opposition Silberman considered Jagust of
management caliber . Added to Bulejski's admission that
Respondent was going to get Jagust on the basis of his X
sales because of his outspoken opposition to Respondent's
credit procedure at the meeting of the officials of
Respondent and the Union , it seems quite clear, and I find,
that Respondent 's real reason for transferring Jagust was
because of his successful opposition within the Union to
Respondent ' s changed credit procedure and his
subsequent selection as union steward.
Contrary to Respondent ' s testimony , the record,
including company records, established that Jagust's
transfer was to a less desirable position resulting in a
substantial decline in his income . The Franklin store was
in downtown St. Louis. Jagust lived near the Normandy
store. The transfer required 45 to 55 additional minutes
travel each day. More significantly , his earnings which
were based on commission were substantially reduced as a
result of the transfer . Respondent 's records established
that Jagust 's income was reduced from approximately
$600 a month , on the basis of average sales of $15,000 a
month for the 10 months of 1965, to approximately $450 a
month , on the basis of average sales of approximately
$10,130 a month for the 7 months at the Franklin store.
Silberman testified that he believed that the change to
the downtown store would be good for Jagust and that
often such a change had a productive result . Silberman
also stated that the downtown store was Respondent's
largest single volume unit and that the opportunities for a
salesman were as good there as at any of Respondent's
stores. Bulejski testified that the transfer was to try to
improve and keep Jagust as an employee, and that he
could expect to improve his sales performance because it
was easier to sell at the Franklin store. Respondent's
records demonstrate the contrary . Comparing the first 5
months of 1966 at the downtown store with the same 5
months of 1965 at the Normandy store, the total volume of
sales and the average sales volume achieved by each of the
salesmen was substantially greater at the Normandy store,
in spite of Respondent 's testimony that during these
periods sales were declining at the Normandy store and
increasing at the downtown store. A comparison of the
exhibits showing the sales for such periods at both stores
clearly establishes this.
A few examples demonstrate the inaccuracy of
Silberman ' s and Bulejski ' s statements concerning the
opportunities at the downtown store and reveal why Jagust
suffered a substantial decline in income . No one at the
Normandy store ever sold under his quota , $360 a day or
$1,800 a week . Respondent 's records for the first 5 months
of 1966 at the Franklin store reveal that in January four
salesmen failed to meet their quota, in February six, in
March three , in April five , and in May one. Jagust never
failed to make his quota in 5 years at the Normandy store.
Jagust 's total sales in the first 5 months of 1965 at the
Normandy store were $62,584, during which time he was
only the fourth highest salesman . In contrast , the highest
salesman at the Franklin store during the first 5 months of
1966 achieved total sales of $60,498. This alone
demonstrates the difference in sales opportunities at the
two stores . For the same 5-month period at the Franklin
store in 1966, Jagust 's total sales amounted to $39,623.
Another obvious contrast is that in February 1966, while
Jagust ranked third in total sales volume at the Franklin
store, his sales totalled only $8 ,719 compared with $12,612
for the same month of the prior year at the Normandy
store. In fact, the highest salesman at the Franklin store
sold only $10,241 in February 1966. Further comparisons
demonstrate the same conclusion . It should also be noted
that the 1965 sales figures for the salesmen at the
Normandy store do not include the months of November
and December , which the record establishes were the
highest sales volume months. Their inclusion would make
the average of sales at the Normandy store even higher.
A preponderance of the reliable, probative, and
substantial evidence in the entire record convinces me,
and I find, that Respondent on November 1 transferred
Jagust to a less desirable position because of his union and
concerted activities , in violation of Section 8(a)(3) and (1)
of the Act.
On the basis of the foregoing findings of fact and upon
the entire record in the case , I make the following:
62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce,
and the Union is a labor organization , within the meaning
of the Act.
2. By interfering with , restraining , and coercing its
employees in the exercise of rights guaranteed in Section 7
of the Act, Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
3. By transferring Jagust to a less desirable position,
Respondent engaged in discrimination to discourage
membership in the Union, thereby engaging in unfair labor
practices within the meaning of Section 8 (a)(3) and (1) of
the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent engaged in certain unfair
labor practices , I shall recommend that it cease and desist
therefrom and that it take certain affirmative action of the
type which is conventionally ordered in such cases as
provided in the Recommended Order below, which I find
necessary to remedy and remove the effects of the unfair
labor practices and to effectuate the policies of the Act.
Because of the character and scope of the unfair labor
practices found , I shall recommend a broad cease-and-
desist order.2
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 ORDER
Biederman Furniture Company, its officers, agents,
successors , and assigns , shall:
1. Cease and desist from:
(a) Advising, warning, or threatening its employees that
Biederman Furniture Company plans or intends to take
reprisals against other employees because of their union or
concerted activities.
(b) Discouraging membership in Local 655, Retail Store
Employees Union, Retail Clerks International Association,
AFL-CIO, or any other labor organization of its
employees, by transferring employees to less desirable
positions or in any other manner discriminating against
employees in regard to hire or tenure of employment or
any term or condition of employment.
(c) In any other manner interfering with , restraining, or
coercing its employees in the exercise of rights guaranteed
to them by Section 7 of the Act.
2. Take the following affirmative action which will
effectuate the policies of the Act:
(a) Offer Herbert Jagust immediate and full
reinstatement to his former or substantially equivalent
position, without prejudice to his seniority or other rights
and privileges, and make him whole for any loss of pay he
may have suffered by payment to him of a sum of money
equal to that which he would normally have earned from
the date of his transfer, November 1, 1965, to the date of
such offer of reinstatement , less his net earnings during
said period (Crossett Lumber Company, 8 NLRB 440), said
backpay to be computed on a quarterly basis in a manner
established by the Board in F. W. Woolworth Company,
90 NLRB 289, together with interest thereon at the rate of
6 percent per annum (Isis Plumbing & Heating Co., 138
NLRB 716).
(b) Notify the above-named employee if presently
serving in the Armed Forces of the United States of his
right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military
Training and Service Act, as amended, after discharge
from the Armed Forces.
(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 to analyze the amount of backpay due
under this Order.
(d) Post at its office and at all of its stores in the
St. Louis area copies of the attached notice marked
"Appendix."3 Copies of said notice, to be furnished by the
Regional Director for Region 14, after being duly signed by
Respondent's representative, shall be posted by
Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted . Reasonable steps shall
be taken to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 14, in
writing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.4
2 N L R B v Express Publishing Company, 312 U S 426 (1941),
N L R B v Entwistle Mfg Co , 120 F 2d 532 (C A 4, 1941),
Consolidated Industries, Inc , 108 NLRB 60 (1954), and cases
cited therein
1 In the event that this Recommended Order is adopted by the
Board, the words "a Decision and Order" shall be substituted for
the words "the Recommended Order of a Trial Examiner" in the
notice In the further event that the Board's Order is enforced by
a decree of a United States Court of Appeals, the words "a Decree
of the United States Court of Appeals Enforcing an Order" shall
be substituted for the words "a Decision and Order "
" In the event that this Recommended Order is adopted by the
Board , this provision shall be modified to read "Notify the
Regional Director for Region 14, in writing , within 10 days from
the date of this Order , what steps Respondent has taken to
comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify our
employees that:
WE WILL NOT discourage membership in Local 655,
Retail Store Employees Union , Retail Clerks
International Association , AFL-CIO, or any other
labor organization, by transferring employees to less
desirable positions or in any other manner
discriminating against employees in regard to hire or
tenure of employment or any term or condition of
employment.
WE WILL NOT advise , warn , or threaten our
employees that we plan or intend to take reprisals
against other employees because of their union or
concerted activities
WE WILL NOT in any other manner interfere with,
restrain , or coerce our employees in the exercise of
any of the rights guaranteed them by the National
Labor Relations Act.
BIEDERMAN FURNITURE COMPANY
WE WILL offer Herbert Jagust immediate and full
reinstatement to his former or substantially
equivalent position, without prejudice to his seniority
or other rights and privileges, and make him whole for
any loss of pay he may have suffered as a result of our
discrimination against him.
All of our employees are free to become or remain, or
refrain from becoming or remaining, members of the
above-named or any other labor organization, except to the
extent that such right may be affected by an agreement
conforming to the provisions of Section 8(a)(3) of the
National Labor Relations Act requiring membership in a
labor organization as a condition of employment.
BIEDERMAN FURNITURE
COMPANY
(Employer)
Dated By
63
(Representative) (Title)
Note: We will notify Herbert Jagust if presently serving
in the Armed Forces of the United States of his right to full
reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training
and Service Act, as amended, after discharge from the
Armed Forces.
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions , they may communicate
directly with the Board' s Regional Office, 1040 Boatmen's
Bank Building , 314 North Broadway, St. Louis, Missouri
63102, Telephone 622-4167.