Bradford Furniture Co.

National Labor Relations Board - Board Decisions

Apr 2, 1979

241 N.L.R.B. 643 (N.L.R.B. 1979)

CONCORD FURNITURE INDUSTRIES INC.
Concord Furniture Industries Inc., d/b/a Bradford
Furniture Company and International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Local 82. Cases I-CA-14058
and I - RC- 15504
April 2. 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND MURPHY
On November 9, 1978. Administrative Law Judge
Walter H. Maloney. Jr., issued the attached Decision
in this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings.' findings,'2 and
conclusions3 of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.
I. Respondent excepts to the Administrative Law
Judge's finding that John Williams and Douglas Gor-
anson were discharged in violation of Section 8(a)(3)
of the Act and contends that (1) it was economically
justified in laying off two employees and (2) it chose
to lay off Williams and Goranson on January 4, 1978,
because they were the least senior employees in their
particular job categories. While we recognize the fact
that Respondent's financial situation as of January I,
1978, justified laying off several employees. 4 we none-
i Respondent has excepted to certain credibility findings made by the Ad-
ministrative Law Judge. It is the Board's established policy not to overrule
an Administrative Law Judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products, Inc.. 91 NLRB 544
(1950). enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
2 We note and hereby correct the Administrative Law Judge's inadvertent
reference to "Ferreira" rather than "Lupus" in the third paragraph of sec.
II,C, 1.1 of his Decision.
3In finding that Charlie Lupus was a supervisor, the Administrative Law
Judge noted that he had hired employee Douglas Goranson to a position in
Respondent's warehouse. Charlie Lupus initially interviewed Goranson for
the warehouse job, showed him around the warehouse, and explained to him
his duties: however, it is not clear on the record that Lupus made the final
decision to hire Goranson. Nevertheless, this uncertainty in no way affects
the finding that Lupus was a supervisor, since the record is clear that Lupus
assigned work using independent judgment, granted employees time off. ap-
proved employees' overtime, and fired both Williams and Goranson. In ad-
dition, Lupus was a salaried employee, received substantially more money
than the other warehouse employees, did not receive overtime as did the
other employees. had his own office in the warehouse, and was introduced to
the warehouse employ ees as the warehouse manager. Finally. if Lupus were
not a supervisor, there would he no supervisor for the 9 to 15 warehouse
employees.
The parties stipulated that as of January 1, 1978, Respondent's net worth
was approximately zero and that Respondent had a bona fide economic
theless agree with the Administrative Law Judge that
Williams and Goranson were discriminatorily laid off
and that the purported reasons for their layoff were
pretextual.5 In affirming the Administrative Law
Judge's finding, however, we also note the following
facts, which he neglected to discuss.
Subsequent to the layoff of Williams and Goran-
son, but prior to the hearing, Respondent submitted
to the Board an eligibility list identifying six different
warehouse job categories-warehouseman, driver,
driver/helper, helper, shipper/receiver, and finisher.
Williams was listed as a "helper" and Goranson was
listed as a "driver." At the hearing, Respondent con-
tended, in accordance with its list, that these six clas-
sifications were used in the warehouse and that Wil-
liams was laid off as the least senior helper (and in
fact the only helper) and Goranson was laid off as the
least senior driver. The record reveals, however, that
Respondent created these six categories in an attempt
to justify laying off Williams and Goranson and that
there are, in fact, only two or possibly three ware-
house job classifications. In this connection Respon-
dent's president testified, contrary to the list, that
there are actually only two distinct job categories in
the warehouse-drivers and finishers. Respondent's
president also identified all of the warehouse employ-
ees employed as of January 4, 1978 (the time of the
layoff), as either "helpers," "drivers," or "finishers,"
again contrary to the eligibility list. Moreover, he spe-
cifically identified three employees as helpers even
though, according to the list, only Williams was a
helper.6 Furthermore, the testimony clearly estab-
lishes that all of the warehouse employees, with the
exception of the finishers, perform overlapping func-
tions and are not treated as holding distinct job posi-
tions. Thus, the helpers (or driver/helpers) drive
trucks as well as work in the warehouse, and drivers
work in the warehouse as well as drive trucks.
Clearly, then, not only do the "six" warehouse job
categories Respondent listed not exist, but Respon-
dent itself recognizes only two (drivers and finishers)
Justification for laying off two employees. The Administrative Law Judge
noted, however, that the stipulation did not state that Respondent had a
bona fide economic justification for laying off two employees in the ware-
house, and the record reveals that Respondent also laid off or discharged
several employees in various parts of its organization at or about the time
Williams and D. Goranson were terminated.
I Respondent relies on Colerti's Furniture. Inc., 550 F.2d 1292 (Ist Cir
1977) and Hubbard Regional Hospital v. N,LRB.. 579 F.2d 1251 (Ist Cir
1978), and attempts to characterize this case as one involving mixed motiva-
tion discharges. The Administrative Law Judge. with whom we agree. did
not consider this a mixed motivation case. Rather, he found that the dis-
charges were strictly pretextual in nature Respondent's reliance on mixed
motivations is therefore misplaced.
6 Robert Sawyer and William Cobligh were identified as helpers along
with Williams: Alfred l.upus, Henry Glenn. Peter Sciascia. and Robert
McNeil were identified as drivers along with D. Goranson On the eligibility
list, Cobligh and Sawyer were listed as "warehousemen." Sciascia was listed
as a "driver/helper.'
241 NLRB No. 85
643
I) t('ISIONS OF NATIONAL LABOR RELATIONS BOARD
or possibly three (drivers. helpers, and finishers) job
classifica tions.
Both Respondent's president and its secretary/trea-
surer also testified that, in determining seniority sta-
tus. an employee's length of service with American
Homestead, Inc., which was purchased by Respon-
dent, is considered along with the employee's tenure
with Respondent. Williams had worked for American
Homestead. Inc.. for about 6 years before becoming
an employee of Respondent in July 1977. so that at
the time of his layoff in January 1978 he had about 6-
1/2 years' seniority. One of the other warehouse em-
ployees also identified by Respondent's president as a
helper, Cobligh, had only 4-1/2 years' seniority. If we
accept Respondent's explanation as to how it decided
who to lay off- -that is, the least senior employee in
one job category-then Cobligh should have been
laid off. not Williams. Not only, however, was this
not the case, but both Respondent's president and its
secretary/treasurer admitted that they did not bother
to find out how many years Williams worked for
American Homestead, Inc., while admitting those
years should have been counted in determining his
seniority status. The foregoing, in our opinion, con-
clusively demonstrates that Respondent's stated rea-
sons for laying off Williams and Goranson were pre-
textual.
2. This case was consolidated for hearing with
Case 12 RC- 15504 to consider challenges and objec-
tions. The Administrative Law Judge inadvertently
failed to rule on the Petitioner's objections to the elec-
tion. The Petitioner objected to the election on the
ground that Respondent discriminatorily laid off Wil-
liams and Goranson, which the Administrative Law
Judge found violated Section 8(a)(3) and (I). Since we
agree with that finding, we will sustain the Petition-
er's objection.
Although the objection alleged only the discharges
as objectionable conduct, the Board will consider
other objectionable conduct discovered during the
course of the investigation even if it is not included in
the objections.7 The Administrative Law Judge found
that Respondent also violated Section 8(a)(l) by coer-
cively interrogating employees concerning their union
activities, promising employees benefits in order to
persuade them to reject unionization, telling employ-
ees that other employees were going to be discharged
because of their union activities, and telling employ-
ees that they were going to be discharged because of
their own union activity. "Conduct violative of Sec-
tion 8(a)(1) is, afortiori, conduct which interferes with
the exercise of a free and untrammeled choice in an
election."8 Accordingly, we find that Respondent's
fDqlvnn DTre & Rubhber (,,. 234 NLRB 504 (1978).
D ual-7e Optical ('oreplant, In, 137 NL.RB 1782. 1786 (1962).
conduct in violation of Section 8(a)( i) was also objec-
tionable and warrants setting aside the election.
3. The Administrative Law Judge properly over-
ruled the challenges to the two ballots and directed
the Regional Director to open and count such ballots
and prepare a revised tally. le neglected, however, to
set the election aside and order a second election in
the event the Petitioner does not receive a majority of
the votes cast according to the revised tally. We shall
therefore order the election of January 12, 1978, set
aside and direct the Regional Director to hold a sec-
ond election as early as possible thereafter if; after the
tally of ballots is revised, the Petitioner does not re-
ceive a majority of the votes cast.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge, as modified be-
low. and hereby orders that the Respondent, Concord
Furniture Industries Inc., d/b/a Bradford Furniture
Company, West Concord, Massachusetts, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, except that
the attached notice is substituted for that of the Ad-
ministrative Law Judge. The Board modifies the rec-
ommended Order by adding the following to the
next-to-last paragraph of the recommended Order:
If the Petitioner receives a majority of the votes
cast, the Regional Director shall issue a certifica-
tion of representative. In the event that the Peti-
tioner does not receive a majority of the votes
cast, according to the revised tally, it is further
ordered that the election held on January 12,
1978. among the warehouse employees of the
Respondent be set aside and that the Regional
Director be directed to conduct a second election
at such time as he deems that circumstances per-
mit the free choice of a bargaining representa-
tive.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interrogate employees concern-
ing their union activities or union sentiments.
WE WILL NOT promise employees benefits if
they reject unionization.
WE WILL. NOT inform employees that they or
an)y other employees are being discharged or will
be discharged because of their union activities.
644
CONCORD FRNITtIRE INDUSTRIES INC'.
Wi: WIll. NOI. b discharge, by layoff, or in
any other manner, discriminate against employ-
ees because of their membership in or activities
on behalf of International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America. Local 82. or any other labor organiza-
tion. All of our employees are free to become or
to remain members of that union or of any other
union.
WE WIl.l. NOI in any other manner interfere
with, restrain. or coerce employees in the exer-
cise of rights guaranteed to them by Section 7 of
the National Labor Relations Act. These rights
include the right to form, join, or assist labor
organizations; to bargain collectively through
representatives of their own choosing; and to en-
gage in concerted activities for their mutual aid
and protection.
WE wILt. offer full and immediate reinstate-
ment to Douglas Goranson and to John Wil-
liams to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions.
without prejudice to their seniority or other
rights or privileges previously enjoyed, and WE
w tlti make them whole for any loss of pay or
benefits which they have suffered because of the
discrimination practiced against them, with in-
terest.
CONCORD FURNITURE INDUSTRIES INC.,
D/B/A BRADFORD FURNITURE COMPANY
DECISION
SIAItMI:NI OF rilF CASE
FINDIN(s OF FA(CT
WAI.TER H. MALONEY, JR.. Administrative Law Judge.
This case came on for hearing before me at Boston. Massa-
chusetts, upon a consolidated unfair labor practice com-
plaint' issued by the Regional Director for Region I., which
alleges that the Respondent, Concord Furniture Industries.
I The principal docket entries in this case are as follows: Charge filed by
International Brotherhood of Teamsters. Chauffeurs, Helpers. and Ware-
housemen of America, Local 82 (herein called Union). on January 19. 1978:
complaint issued by the Regional Director for Region I on March 9. 1978:
Respondent's answer filed March 20, 1978: hearing held in Boston. Massa-
chusetts. on August 23 and 24. 1978; and briefs filed by the General Counsel
and the Respondent with me on October 3. 1978. The principal docket en-
tries in Case I RC' 15504 are as follows Petition filed n December 12,
1977. by the Union. seeking to represent a unit of the Respondent's full-time
and regular part-time warehousemen, drivers. helpers. and related employ-
ees. "Stip" election agreement approved by the Acting Regional Director on
December 29, 1977: representation election held on January 12. 1978. result-
ing in our votes cast for the Union. five votes cast against the Union. and
two objections to the nion. fise votes cast against the Union. and two
objections to the conduct of the election filed hb the Utnion on Januar' 19.
1978: Report on Objections and Challenges issued by the Regional Director
;fr Region I on Febhruar 28. 1978
Inc., d/b/a Bradford Furniture Company., violated Section
8(a)( ) and (3) of the Act. More particularly, the complaint
alleges that the Respondent herein unlawfully interrogated
its employees, threatened to discharge employees because
of union activities, created among employees an impression
of company surveillance of their union activities, and
threatened to impose upon employees more onerous work-
ing conditions because of heir union sympathies and activi-
ties. The complaint also alleges that the Respondent dis-
criminatorily discharged Douglas Goranson and John
Williams. The Respondent denies the commission of in-
dependent violations of Section 8(a)( I), asserting that Philip
Charles Lupus. to whom many of the allegedly illegal state-
ments were attributed, was not a supervisor within the
meaning of the Act and that Williams and Goranson were
laid off in order of seniority during an economically moti-
vated retrenchment. Upon these contentions the issues
herein were drawn.
I. lHE UNFAIR ABOR PRA('TICES ALI.(iED
Respondent presently operates retail furniture stores at
West Concord. Natick, and Pembroke, Massachusetts. The
Natick store was acquired July' I, 1977, from American
Homestead, Inc.. which had operated a furniture store at
that location for several years. Respondent also maintains a
warehouse and delivery facility at West Concord in con-
junction with its store and principal office. This facility
serves all three retail outlets and is the bargaining unit in
which the dispute in this case arose.
Respondent's contract to purchase the American Home-
stead store required it to offer employment, at substantially
the same salaries and wage rates paid by American Home-
stead, to all employees who were employed at the store and
warehouse at the time of the sale. Four persons-Philip
Charles Lupus (who goes by the name Charlie), his brother
Alfred Lupus, John Williams, and Robert McNeil were
hired by the Respondent. They were all transferred to the
West Concord warehouse, at which place the Respondent
consolidated all of its finishing, warehousing. and delivery
functions.
Charlie Lupus, whose supervisory function was sharply
disputed in this proceeding, was the General Manager of
the American Homestead store in Natick. At the time of
the purchase. Respondent's. president. Anthony Ferreira
told Charlie Lupus that his functions at West Concord
would be considerably different than they had been in
Natick. Respondent concedes that from July 1, 1977, until
he resigned in February 1978 Charlie Lupus was a leadman
in the warehouse at West Concord and that he was respon-
I Respondent admits, and I find. that it is a Massachusetts corporation
which maintains its principal place of business in West Concord, Massachu-
setts. At this and other locations within the State of Massachusetts. the
Respondent is engaged in the retail sale and delivery of furniture. In the
course and conduct of this business. the Respondent does an annual gross
business in excess of S 500,000 and annually ships from its West Concord,
Massachusetts, store and warehouse directly to points and places located
outside the Commonwealth of Massachusetts goods and merchandise valued
in excess of $5(0.000 Accordingly. the Respondent is an employer engaged in
commerce within the meaning of Section 2(2). (6). and (7) of the Act. The
Union is a labor organization within the meaning of the Act.
Errors in the transcript have been noted and corrected.
645
I)Cl(ISIONS OF NATIONAL ILABOR RELATIONS BOARD
sible for the overall direction of merchandise and personnel
in the warehouse "within a prescribed situation."
'The consolidation of the American Homestead and
Bradford Furniture warehouse and delivery operations
caused considerable difficulty in the summer and early fall,
but things began running more smoothly in the late fall
when the Respondent's overall business began to drop and
its warehouse and delivery operations tapered off. One rea-
son Charlie Lupus was placed in charge of the warehouse
was that he was familiar with American Homestead opera-
tions and customers and could readily assist in servicing
these customers from his own memory. This was of consid-
erable importance. since American Homestead's books and
records were in disarray and were often quite inadequate to
inform strangers to the American Homestead operation
what needed to be done with respect to a particular ac-
count. During its peak operation in the fall, the Respondent
employed about 16 persons, including some part-time em-
ployees, in the warehouse. By January 4. 1978. a critical
date in this proceeding, all of its part-time employees were
gone, and a total of' II persons, including Charlie Lupus,
remained in the bargaining unit.
Discriminatee John "Chip" Williams was brought over
from American Homestead. He was employed first as a
finisher's helper or apprentice and then as a driver's helper.
Williams had been an employee at American Homestead
for about 6 years, with a break in service during which he
sold life insurance. Discriminatee Douglas Goranson was
hired as a driver and helper in September 1977. His brother,
Richard Goranson, had worked for the Respondent in pre-
vious years in the skilled position as a finisher. Richard
Goranson returned to work for the Respondent in this posi-
tion about the same time his brother started to work as a
driver and helper.
In late November or early December 1977, in response to
dissatisfaction regarding overtime and other matters, Wil-
liams. D. Goranson. McNeil, and A. Lupus decided to or-
ganize the warehouse employees. After meeting at a local
cafe. they all drove to the Union's office in Quincy, Massa-
chusetts, and obtained designation cards. All of them
signed cards and started to solicit signatures from other
warehouse employees. About December 9, 1977, Williams
took advantage of a day off to go back to Quincy and turn
in the cards at the union office. On December 9, the
Union's president and its secretary-treasurer wrote a joint
letter to Ferreira, stating that a majority of the Respon-
dent's drivers, warehousemen, helpers. shippers. receivers.
finishers, and repairmen had signed cards. They asked for
recognition and requested to meet with Ferreira for the pur-
pose of negotiating a contract. On December 12. 1977, the
Union followed up this letter by filing the representation
petition in Case I -RC 15504. An election was held pursu-
ant to a "stip" agreement on January 12. 1978.
I credit Charlie Lupus' testimony that early in December
1977 he learned about the existence of the union drive from
Ferreira, who told him that the employees had signed cards
or papers and were trying to organize. Charlie Lupus ex-
pressed unhappiness that warehouse employees would do
something like that behind his back without telling him.
Ferreira informed him that some of the employees who had
signed cards asked to get them back. In the course of a later
discussion about the Union. Ferreira told Charlie Lupus
that he would be eligible to vote in the forthcoming elec-
tion.4 He said that there would be five votes for the Union
and five against it, and that Charlie Lupus could break the
tie.
In yet another conversation between Ferreira and Char-
lie Lupus, Ferreira informed Charlie Lupus that Williams
had gone to see someone on his day off about getting cards
and had brought them into the plant. Charlie Lupus ex-
pressed surprise and disbelief that Williams would be the
leader of such an effort. Hie suggested to Ferreira that Wil-
liams was not the kind of person who would normally as-
sume a leadership role and suggested that somebody else
was in fact leading them on. Later on, Charlie Lupus
changed his opinion about Williams. When Ferreira stated
to him that "Chip" Williams was the employee who started
the organizing drive and that Williams was a troublemaker,
Charlie Lupus replied. " don't want trouble working for
me. Let's get rid of him."
During this period of time, Charlie Lupus was encounter-
ing trouble in another form from two Bradford employees
who were already working in the Respondent's warehouse
when he moved to West Concord from Natick. Drivers Pe-
ter Sciascia and Henry Glenn repeatedly refused to take
orders from Charlie Lupus. On some occasions they spoke
insubordinately to him. Because they were long-time em-
ployees at Bradford. they had established a relationship
with Ferreira which antedated Charlie Lupus' employment,
so they felt that they, rather than Charlie Lupus, would find
backing in the front office in the event of a confrontation.
They ultimately proved to be correct. On more than one
occasion, Charlie Lupus complained to Ferreira about their
behavior, claiming specifically that Glenn was "milking the
job." Ferreira said he would look into the situation and
correct it, but no changes were brought about until Charlie
Lupus quit sometime in February. He resigned because of
the refusal by Ferreira to back him up in dealing with
Sciascia. On one occasion Charlie Lupus compared both
Sciascia and Glenn to Williams in a conversation he had
with Ferreira. saying that while Williams was a trouble-
maker, Glenn and Sciascia made worse trouble.
Late in December 1977. Charlie Lupus and Williams
held a conversation in the warehouse. Williams told Charlie
Lupus that he heard that he was eligible to vote in the
election and expressed the opinion to Charlie Lupus that he
would "stab us in the back." Williams also told Charlie
Lupus he thought the Company was trying to get rid of
Charlie Lupus, to which the latter replied that he was going
to vote for the Union but would deny that he did so.
During this same period of time, Charlie Lupus had a
conversation with Douglas Goranson. He expressed to
Douglas Goranson the opinion that "we have a trouble-
maker," referring to Sciascia. Douglas Goranson disagreed,
reminding him that Sciascia had signed a union card. Char-
lie Lupus persisted. saying, "You'd better keep an eye on
him." Later Charlie Lupus told Douglas Goranson that he
had tried to fire Sciascia but that Ferreira had told him to
leave Sciascia alone because "Peter is helping us."
In December 1977. Richard Goranson had a conversa-
tion in Ferreira's office with Ferreira and Respondent's sec-
4 Charlie .upus' name was placed on the Ercelsior list, and he voted at the
election without challenge.
646
CONCORD FURNITURE INDUSTRIES INC.
retary-treasurer. Henry Greenberg. I credit Richard Goran-
son's statement that Ferreira asked him during this
conversation why he had signed a union card. to which
question Richard Goranson gave an evasive reply. Ferreira
went on to say that the Union could not offer him more
than the Company could. He also told him that he thought
that Richard Goranson had a good deal and that he and
Greenberg could not understand why he would want "to do
something like this." Richard Goranson answered that he
would do what he thought was right.
Late in December 1977. Richard Gorranson had a con-
versation with Charlie Lupus, who told him that he thought
the Company was going to let some people go. Richard
Goranson said he hoped that it would not be he. Charlie
Lupus said it would not be but that he thought it would be
Williams because of Williams' union activities.
On January 4. 1978, Douglas Goranson and Williams
reported to work as usual. While they were loading a truck
in preparation for making deliveries. Charlie Lupus in-
structed them not to leave the premises without first check-
ing with him. He did not give them permission to leave but
instead assigned them to do some work around the ware-
house. During that day, Ferreira told Charlie Lupus to fire
both men. Charlie Lupus gave him an argument, saying
that there were two others he preferred to let go in place of
Williams and Douglas Goranson. Ferreira ended the argu-
ment by stating that it was not up to Charlie Lupus to
decide who was to be terminated. In the middle of the after-
noon, Charlie Lupus saw Douglas Goranson and told him
that he and Williams had been laid off. However, he as-
sured Douglas Goranson that "as soon as this Union thing
goes through" he and Williams would be the first to come
back. It was Douglas Goranson who relayed the word to
Williams that both of them had been laid off.
On the following day, Ferreira and Greenberg spoke to
the warehouse employees in the group. The, told them that
the reason that Douglas Goranson and Williams had been
laid off was poor business. Greenberg went on to say that
they wished that outsiders would not be coming into the
plant, noting that there had been a personal relationship
between management and the employees in the past and
such a relationship would be destroyed by unionization.
The election took place on January 12. with an inconclusive
result. Four votes were cast for the Union and five were cast
against it. Douglas Goranson and Williams presented
themselves at the polls to vote. Their challenged ballots are
determinative of the results of that election.
II. ANALYSIS AND ( ON(CI.USIONS
A. The Supervisorv Status of Philip Charles Lupus
Charlie Lupus was admittedly a supervisor for the
American Heritage Company when he was hired by the
Respondent at "the same wages and substantially equiv-
alent fringe benefits . . . as presently paid." Ferreira told
him that his duties would be somewhat different with the
Respondent. as indeed they would have to be, since as gen-
eral manager of American Heritage Charlie Lupus in effect
ran the business. A meeting was held of incumbent Brad-
ford Furniture warehouse employees and newly transferred
American Heritage employees, at which Greenberg and
Ferreira introduced Lupus. I credit Lupus' testimony that
at this meeting the men were told that Lupus would be in
charge of the warehouse and that if they had any problems
they should "see Charlie."
Charlie Lupus was a salaried employee and received no
payment for working overtime. He earned $35 per week
more than the next highest paid warehouse employee. Dur-
ing the 7 months which elapsed while he was in charge of
the warehouse, he supervised between 9 and 15 employees,
depending on the month in question. I reject as fanciful the
testimony of Ferreira that the warehouse operation "ran
itself." This testimony also is at a variance with testimony
offered by the Respondent that Charlie Lupus' services
were badly needed to handle the transfer of furniture from
the American Heritage warehouse to the Bradford Furni-
ture warehouse and to handle service complaints arising out
of the enterprise which the Respondent had just purchased.
In fact, Charlie Lupus hired Douglas Goranson. After
Douglas Goranson was on the payroll fir a day or two, he
had a conversation with Ferreira about his wages and over-
time payments but Douglas Goranson was already an em-
ployee when this discussion occurred. It was Charlie Lupus
who was assigned to discharge both Williams and Douglas
Goranson. Charlie Lupus regularly assigned work to em-
ployees, both in the delivery section of the warehouse and
in the finishing section. I credit testimony to the effect that
he had an office in the warehouse and that the office was
regarded as his office, not just a gathering place for employ-
ees generally or a clearinghouse for work assignments.
Charlie Lupus was the regular channel of communication
between the warehouse and Ferreira. who was and is the
company president. Ferreira's responsibility extends to the
supervision of three retail stores, the company office, and
the warehouse, so he spent relatively little time in the ware-
house except when Charlie Lupus was absent. Charlie Lu-
pus granted time off to employees, granted employees days
off to compensate for overtime worked, and had as his re-
sponsibility the transmittal of employee timesheets to the
front office each week. Charlie Lupus regularly repri-
manded employees when necessary, although two employ-
ees rejected or ignored his reprimands and found support
for their actions with Ferreira. In light of these consider-
ations, it is clear that Charlie Lupus was not merely a lead-
man, as contended by the Respondent, but exercised the
responsibility to hire employees, reprimand employees, and
responsibly assign work to employees. Moreover, the Re-
spondent's principal officers represented to warehouse em-
ployees that Charlie Lupus was in charge of their activities.
Accordingly, I conclude that at all times material herein
Philip Charles Lupus was a supervisor within the meaning
of Section 21 ) of the Act, for whose words and deeds the
Respondent is vicariously responsible.
I attach no significance to the fact that the Respondent placed the name
of Charlie upus on the eligibility list for the representation election. This
was a self-serving effort to enlarge the voting unit so that Charlie Lupus
could vote to break an anticipated tie. I also attach no significance to the fact
that the Union did not object to the inclusion. This also served the Union's
election strategy. Charlie Lupus' dissatisfaction with the Respondent was
well known to union adherents, so the Union could anticipate that he might
sote in its fasor if he were allowed to cast a ballot. It would make no election
sense at all to challenge a "ses" vote, even if it was coming from a supervi-
sor.
647
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The Independent Allegations of Conduct Violative of
Section 8(a)(l) of the Act.
(a) I credit Richard Goranson's testimony that he had a
conversation in mid-December 1977 in the company office
with Ferreira and Greenberg, in the course of which he was
asked why he signed a union card. He gave an evasive re-
ply. This interrogation, taking place in the locus of manage-
rial authority, was made by and in the presence of the Com-
pany's highest officials and was met with a less than candid
answer. These factors indicate clearly that the interrogation
was coercive in character and a violation of Section 8(a)(I)
of the Act.
(b) In the course of the same conversation. Ferreira told
Richard Goranson that the Company could do more for
him than the Union could. Such a statement amounts to a
promise of benefit for Richard Goranson if he would reject
unionism, and therefore violates Section 8(a)(1) of the Act.
(c) At or about this same time, Charlie Lupus had a con-
versation with Richard Goranson, in the course of which he
told him that he thought that Williams might be discharged
because of Williams' union activities. Such a statement has
a distinct chilling effect on union activities of employees
and amounts to interference with protected activities, if in-
deed it is not in and of itself a threat. However character-
ized, the statement violates Section 8(a)( ) of the Act.
(d) When Charlie Lupus discharged Douglas Goranson.
he told him that he and Williams would be reinstated "as
soon as this Union thing goes through." Such a statement
is, in effect, a notification to both employees that they had
been fired for union activities and is an independent viola-
tion of Section 8(a)(1) of the Act. I so find and conclude.
(e) The General Counsel contends that the Respondent
violated Section 8(a)(l) when, in January 1978, Ferreira
spoke with Richard Goranson while the latter was doing
some upholstery work and told him that "if you get your
way, you won't be able to do this anymore." While the
conversation took place during the course of an organizing
campaign, the specific context in which it arose, as well as
the reference which Ferreira was making, render the state-
ment vague and ambiguous. Accordingly, I would not, as
did the General Counsel, conclude that the statement
amounts to a threat to discharge or transfer an employee
because of his union activities and would dismiss this por-
tion of the complaint.
C. The Discharges of Douglas Goranson and John "Chip"
Williams
There is no doubt that Williams generated the organizing
drive and that he and Douglas Goranson, among others,
went to the union hall, obtained union authorization cards,
signed cards, and distributed them to other employees.
There is also no doubt that the Respondent was well aware
of the union activities of both employees. Charlie Lupus
and Ferreira discussed the fact that Williams was the leader
of the movement, andd both branded him a troublemaker.
Charlie Lupus informed Douglas Goranson on the occasion
of his layoff that he would be able to return "as soon as this
Union thing goes through," a remark which indicates com-
pany knowledge of his activities. Ferreira also told Charlie
Lupus that the projected vote at the representation election
would be five to five, a remark which suggests knowledge,
or at least a strong suspicion on his part, as to which em-
ployees were prounion and which were not. The layoffs of
these two prounion employees took place within 3 weeks of
the filing of a representation petition and a week before the
election. The layoff, characterized by the Respondent in its
brief as a permanent layoff, 6 took place against a back-
ground of independent violations of Section 8(a)(l), noted
above.
Normally, a combination of the factors of union activity,
company knowledge. suspicious timing, and independent
violations of the Act are sufficient to make out a case of a
discriminatory discharge or layoff. Faced with these ele-
ments in this case, the Respondent argues that the layoffs in
question were prompted solely by economic considerations
and that the two alleged discriminatees were selected for
layoff because they held the least seniority. The General
Counsel and the Respondent entered into a stipulation to
the effect that as of January 1, 1978, the net worth of the
Respondent was approximately zero and that the Respon-
dent had a bona fide economic justification for laying off
two employees. The stipulation did not recite that the Re-
spondent had a bona fide economic justification for laying
off two employees in the warehouse, and the record of this
case is replete with the names of other persons who were
either laid off or discharged in various parts of the Respon-
dent's organization at or about the time Douglas Goranson
and Williams were terminated. On the day they were noti-
fied of their layoff, Williams and Douglas Goranson had
loaded a truck and were ready to go out and make deliver-
ies but were instructed to remain in the warehouse to await
further orders. On this same date, their immediate supervi-
sor asked Ferreira to lay off two others in place of the dis-
criminatees in this case, and his recommendation was ig-
nored.
Ferreira disclosed in a statement to Richard Goranson
some time before January 4 that Williams was slated for
discharge because of his union activities. Douglas Goran-
son was told, in effect, by Charlie Lupus on the occasion of
his discharge that it was occasioned by his union activities.
Evidence of illegal motivation is rarely clearer than in state-
ments such as these. Accordingly, I conclude that by dis-
charging Douglas Goranson and John Williams because of
their union sympathies and activities the Respondent herein
violated Section 8(a)(1) and (3) of the Act. Since both indi-
viduals were employees entitled to vote at the January 12
election, the challenges to their ballots should be overruled
and their ballots should be opened and counted.
Upon the foregoing findings of fact, and upon the entire
record herein considered as a whole, I make the following:
CON(l.tlSIONS OF LAW
1. The Respondent. Concord Furniture Industries Inc.,
d/b/a Bradford Furniture Company, is an employer en-
gaged in commerce within the meaning of Sections 2(2), (6).
and (7) of the Act.
2. International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Local 82, is a la-
6 Several months later. Douglas Goranson was offered his job back.
648
CONCORD FURNITURE INDUSTRIES INC.
bor organization within the meaning of Section 2(5) of the
Act.
3. By permanently laying off Douglas Goranson and
John Williams because of their membership in and activi-
ties on behalf of International Brotherhood of Teamsters,
Chauffeurs. Warehousemen, and Helpers of America, Local
82, the Respondent violated Section 8(a)(3) of the Act.
4. By the acts and conduct set forth in Conclusions of
Law Number 3; by coercively interrogating employees con-
cerning their union activities; by promising benefits to em-
ployees in order to persuade them to reject unionization; by
telling employees that other employees were going to be
discharged because of their union activities; and by telling
employees that they were being discharged because of their
own union activities, the Respondent herein violated Sec-
tion 8(a)(l) of the Act.
5. The unfair labor practices received above in Conclu-
sions of Law 3 and 4 have a close, intimate, and substantial
effect on the free flow of commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has committed cer-
tain unfair labor practices, I will recommend to the Board
that it be ordered to cease and desist therefrom and to take
other actions designed to effectuate the purposes and poli-
cies of the Act. Since the violations of the Act which have
been found in this case are deliberate and involve discrimi-
natory discharges or layoffs, they go to the heart of the Act.
Accordingly, I will recommend a so-called broad 8(a)(l)
remedy designed to suppress any and all violations of that
section of the Act. J.C. Penney Co., Inc., 172 NLRB 1279,
fn. 1 (1968). I will also recommend that the Respondent be
required to offer full and immediate reinstatement to Doug-
las Goranson and John Williams to their former or substan-
tially equivalent positions and that it make these individ-
uals whole for any loss of pay they have suffered, in
accordance with the Woolworth formula,7 with interest
thereon calculated at the adjusted prime rate used by the
U.S. Internal Revenue Service for tax payments. Florida
Steel Corporation, 231 NLRB 651 (1977); Isis Plumbing &
Heating Co., 138 NLRB 716 (1962). 1 will also recommend
that the Respondent be required to post the usual notice
informing its employees of their rights and of the results of
this case.
Upon the foregoing findings of fact, conclusions of law,
and the entire record herein considered as a whole, and
pursuant to Section 10(c) of the Act, I make the following
recommended:
ORDER'
The Respondent, Concord Furniture Industries Inc..
d/b/a Bradford Furniture Company, West Concord, Mas-
sachusetts, its officers, agents, supervisors, successors, and
assigns, shall:
F W. Woolworth Company. 90 NLRB 289 (1950).
a In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings.
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
1. Cease and desist from:
(a) Coercively interrogating employees concerning their
union sentiments and activities.
(b) Promising benefits to employees if they reject union-
ization.
(c) Telling employees that they or other employees are or
will be discharged because of their union activities.
(d) Discouraging membership in or activities on behalf
of International Brotherhood of Teamsters. Chauffeurs,
Warehousemen and Helpers of America. Local 82, or any
other labor organization, by discharging or laying off em-
ployees or by any other discrimination in wages, hours, or
terms and conditions of employment.
(e) By any other means interfering with, restraining, or
coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the purposes and policies of the Act:
(a) Offer Douglas Goranson and John Williams full and
immediate reinstatement to their former positions or, in the
event that their former positions no longer exist, to substan-
tially equivalent employment, without prejudice to their se-
niority or to other rights which they formerly enjoyed.
(b) Make whole Douglas Goranson and John Williams
for any loss of pay or benefits which they have suffered by
reason of the discriminations found herein, in the manner
described above in the section entitled "The Remedy."
(c) Post at its West Concord, Massachusetts, store and
warehouse copies of the attached notice marked "Appen-
dix."9 Copies of the Appendix, to be furnished to the Re-
spondent by the Regional Director for Region I and duly
signed by a representative of the Respondent, shall be
posted by the Respondent immediately upon receipt
thereof, and shall be maintained by it for a period of 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted.
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll and other records necessary to analyze the amount of
backpay due under the terms of this Order.
(e) Notify the Regional Director for Region I, in writing,
within 20 days from the date of this Order, what steps it has
taken to comply herewith.
IT IS FURTHER ORDERED that Case I -RC- 15504 be, and it
hereby is, severed from Case -CA-14058 and that it be,
and it hereby is, remanded to the Regional Director; that
the challenges to ballots cast in a representation election
conducted in said case on January 12, 1978, be, and they
hereby are, overruled; and that the Regional Director be,
and he hereby is, directed to open and count said chal-
lenged ballots and to prepare and serve upon the parties a
revised tally of ballots.
IT IS FURTHER ORDEREI) that, insofar as the complaint
herein alleges matters not found to be violative of the Act,
the said complaint is hereby dismissed.
9 In the event that 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
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board"
649