Mangurian's, Inc.

National Labor Relations Board - Board Decisions

Dec 7, 1976

227 N.L.R.B. 113 (N.L.R.B. 1976)

MANGURIAN'S, INC.
Mangurian's, Inc. and Retail , Wholesale and Depart-
ment Store Union, AFL-CIO. Case 12-CA-6795
December 7, 1976
DECISION AND ORDER
By CHAIRMAN MURPHY AND MEMBERS
FANNING AND JENKINS
On April 26, 1976, Administrative Law Judge
Maurice S. Bush issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
cross-exceptions and a supporting brief. The Respon-
dent also filed an answering brief to the exceptions of
the General Counsel.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge as
modified herein and to adopt -his recommended
Order.
1. On the basis of the credited demeanor testimo-
ny of employee Martin Gorin, we adopt the finding of
the Administrative Law Judge that Robert Poutre,
Respondent's labor relations representative threat-
ened Gorin that Mr. Wade, the chairman of Respon-
dent's parent company, "was crazy enough to close
down Mangurian's, if the Union got in" and that this
threat of store closing violated Section 8(a)(1) of the
Act. In this regard, we note that earlier in his
discussion the Administrative Law Judge inferred
from Poutre's testimony that he (Poutre) made an
implied threat of store closings because he had told
Gorin that "most chairmen of large corporations
were ego-maniacs." We do not find any basis for this
inference not only because Poutre's purported com-
ment contains no threat, implied or otherwise, but
also because Poutre's testimony was discredited and
i The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge . It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to credibili-
ty unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect . Standard Dry Wall Products, Inc, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
2 We do find that it was improper for the Administrative Law Judge to
draw an adverse inference against the Respondent because of its failure to
call Donay as a witness to corroborate Burd As an employee , Donay was
equally available to all parties as a witness and, accordingly , no such
inference, should have been drawn However , since the Administrative Law
Judge's credibility resolutions clearly rest on a finding that Gonn's
demeanor was superior to that of Burd's , we do not view the improperly
drawn adverse inference as having a substantial effect on the ultimate
credibility resolutions arrived at by the Administrative Law Judge.
227 NLRB No. 28
113
thus cannot serve as the basis for any proper findings.
Accordingly, we do not adopt the Administrative
Law Judge's discussion on this point, but find the
violation, as noted above, because Gorin's credited
testimony establishes Poutre's threat of store closings.
2. We, also adopt the Administrative Law Judge's
finding that Jerome Burd, Respondent's comptroller,
violated Section 8(a)(1) of the Act by telling employ-
ees Gorin and Donay that President Wade had
threatened to close Respondent's business if the
Union won the approaching representation election.
In so finding, we are aware of the discrepancy that
existed between Gorin's testimony on direct examina-
tion and his earlier affidavit statement . However, at a
later point in his testimony, Gorin was asked by the
Administrative Law Judge to specify as to which
version was correct and Gorin testified that he
believed the statement contained in his affidavit was
what Burd actually said. The Administrative Law
Judge obviously concluded that the discrepancy in
Gorin's testimony was the result of a faulty memory
rather than an effort to conceal the truth and he
specifically credited Gorin's testimonial affirmation
of his affidavit statement . The determination as to
whether or not this allegation of the complaint was
sustained rests entirely on the credibility of Gorin
and Burd,2 and the Administrative Law Judge, who
had the opportunity to observe their demeanor while
they testified, believed the former rather than the
latter. We can perceive of no reason for overturning
this resolution and, accordingly, we find that by such
conduct Respondent violated Section 8(a)(1) of the
Act.3 ,
3. In agreement with the Administrative Law
Judge, we find that the no-solicitation rule posted at
the West Palm Beach store in early March was
discriminatorily promulgated in the wake of the
Union's organizational campaign . Although the com-
plaint did not state- accurately the dates of the
discriminatory promulgation, we do not find this to
be a fatal variance between the complaint and the
evidence adduced. The complaint gave adequate
notice as to the nature of the allegation and was not
3 The Administrative Law Judge declined to make findings with respect
to pars . 5(c) and (d) of the complaint which alleged additional threats of store
closure as violations of the Act on the ground that any findings would be
cumulative of the violations already found. In its exceptions , the General
Counsel asks the Board to make credibility findings and find the violations
While the Administrative Law Judge's failure to make findings on these
separate allegations is indeed perplexing , we shall nonetheless overrule the
exceptions . In light of the total absence of credibility findings and the
conflicting and inconsistent record testimony, we find it difficult at this stage
in the proceeding to make the necessary credibility findings and accordingly
shall decline to make credibility or any other findings regarding these two
allegations. However, we shall not remand the case for further findings
inasmuch as the remedy is unaffected by the absence of findings with respect
to these two allegations Accordingly, we shall adopt the Administrative Law
Judge's disposition of them.
114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
substantially amiss as to the time frame in which the
violation allegedly occurred. In addition, the allega-
tion was fully litigated at the hearing, and the
Respondent was given the opportunity to present its
witnesses and cross-examine those of the General
Counsel on this point. Moreover, the crux of the
violation is that the no-solicitation rule was promul-
gated, in response to the Union's campaign as a
means of interfering with the organizational rights of
the employees, and the evidence supports such a
finding. Thus, whether or not the no-solicitation rule
was promulgated before or after the -filing of the
petition is not significant in view of the finding that
the rule's promulgation was prompted by the Union's
organizational campaign and thus was an unfair
labor practice. Therefore, the de minimis variance
between the complaint and the evidence as to the
dates of the violation does not affect our finding. In
this light, we cannot accept the view of the Adminis-
trative Law Judge that Respondent "waived that
defect" and that the complaint was amended accord-
ingly to conform to the evidence. There is certainly
no evidence that Respondent made any waiver,
particularly in view of the fact that it raised the issue
of variance in its defense and made it a subject of its
exceptions. In addition, the record does not indicate
that any motion to amend the complaint or conform
the pleadings was timely made. For these reasons, we
do not rely on the discussion of the Administrative
Law Judge, but instead find that the allegation
concerning the no-solicitation rule's promulgation
was fully litigated and the evidence supports a finding
of the violation.
4. We find in agreement with the Administrative
Law Judge that Respondent's reprimand and warn-
ing to Rene Proulx for distributing union leaflets at
Respondent's Powerline Road Distribution Center
violated Section 8(a)(1) of the Act. Respondent
defended its actions on the ground that the leaflets
were demeaning to management and were passed out
to customers, as well as employees, to the detriment
of the Company. On the basis of the credited
testimony, the Administrative Law Judge determined
that Proulx had distributed leaflets only to employees
and not to Respondent's customers and thus there
was no basis for Respondent to conclude that Proulx
had publicly demeaned the Company. Upon examin-
ing a copy of the leaflets distributed by Proulx, we
find, as did the Administrative Law Judge, that the
literature was not defamatory and did not exceed the
limits of appropriate campaign literature. Thus, even
4 We note that Kenneth Elsie , another employee, and his wife, helped
Proulx distribute the leaflets , yet Kenneth Elsie was not similarly reprimand-
ed.
5 Alberts, Inc., 213 NLRB 686, 689 (1974); Textron, Inc. (Talon Division),
199 NLRB 131, 136-138 (1972), Atlanta Gas Light Company, 162 NLRB 436,
438(1966).
assuming the leaflets may have been distributed to
customers, there was no justifiable cause for disciplin-
ing Proulx while he was engaged in this protected
activity. Indeed, we fmd that Respondent's asserted
reason was a mere pretext for discriminatorily
reprimanding Proulx for his union activity,4 and
accordingly on this basis we find the violation.
5. We adopt the Administrative Law Judge's
findings, based on the credited demeanor testimony
and the record, that the presence of Shop Supervisor
Anthony Pagliuco, Jr., on two occasions at the
Holiday Inns when the Union held organizational
meetings was a mere coincidence and not for the
purposes of surveillance as alleged in the complaint.
In agreement with the Administrative Law Judge, we
also find that Pagliuco's presence on these two
occasions did not violate the Act by creating an
"impression of surveillance." Not only did the
complaint fail to state this allegation, as noted by the
Administrative Law Judge, but no violation could be
made out in any event on the facts cited by the
General Counsel. What the General Counsel has
actually contended is that Pagliuco's mere presence,
without more, at the place of the union meetings is a
violation of the Act. This argument is patently
without merit. Our finding in the present case that
Pagliuco did not engage in surveillance in violation of
the Act was predicated on the initial determination
that Pagliuco was not present at the motels for the
purposes of engaging in conduct violative of the Act.
In other words, his very presence which the General
Counsel maintains violated the Act for its impression
of surveillance has been exculpated. It would be
injudicious for us to find now that this exculpated
presence alone violated the Act in, the face of our
earlier determination that Pagliuco, though present
coincidentally at the place of the union meetings, had
not engaged in any unlawful conduct. For these
reasons, we fmd that no violation of the Act has
occurred.5 In all other respects we adopt the Decision
of the Administrative Law Judge .6
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Mangurian's,
Inc., its officers, agents, successors, and assigns, shall
take the action set forth in said recommended Order,
6 We also find no merit to the Respondent 's exceptions to Administrative
Law Judge Arthur Leff's order granting the General Counsel's motion to
strike Respondent's second affirmative defense.
MANGURIAN'S, INC.
except that the attached notice is substituted for that
of the Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act, as amended, gives
all employees the following rights:
To organize themselves
To form, join, or support unions
To bargain as a group through a represen-
tative they choose
To act together for collective bargaining
or other mutual aid or protection.
WE WILL NOT promulgate any no-solicitation
rule in a manner calculated to interfere with the
employees' right to self-organization.
WE WILL NOT issue written reprimands nor will
we in any other manner threaten our employees
with reprisals for engaging in union activities.
WE WILL NOT tell our employees that the
Company will close its doors if the Retail,
Wholesale and Department Store Union, AFL-
CIO, or any other labor organization, gets in.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their right to self-organization, to form
labor organizations, to join or assist the Retail,
Wholesale and Department Store Union, AFL-
CIO, or, any other labor organization, to bargain
collectively through representatives of their own
choosing, to engage in concerted activities for the
purpose of collective bargaining or other mutual
aid or protection, or to refrain from any and all
such activities.
All our employees are free to become, remain, or
refrain from becoming 'or remaining members of
Retail, Wholesale and Department Store Union,
AFL-CIO, or any other labor organization.
- MANGURIAN'S, INC.
DECISION
STATEMENT OF THE CASE
MAURICE S. BUSH, Administrative Law Judge: Respon-
dent, Mangurian's, Inc., a 50-year-old-company, operates a
1 The above findings are chiefly based on the findings in the Regional
Director's Decision and Direction of Election, dated May 21, 1975, in
Mangunan's, Inc, in Cases 12-RC--1823, 4824, 4827, 4828, and 4838
(consolidated), as set forth in G.C. Exh_ 3, which the parties stipulated could
115
chain of eight retail furniture stores and supporting
warehouses in Florida and Georgia but only certain of its
stores and facilities in southeast Florida are related to the
issues in this proceeding- For the past 6 years Mangurian's
has been the wholly-owned subsidiary of General Portland,
Inc., a company with assets of more than $217 million
whose fundamental business is the manufacture of cement
and cement products which it markets throughout much of
the United States but principally in the South, the Midwest,
and California.
As here pertinent, Mangurian's involved southeastern
Florida facilities are as follows: (1) Mangurian's Distribu-
tion Center on Powerline Road in Fort Lauderdale, which
serves both as a warehouse for all of Respondent's Florida
retail furniture stores and as the administrative headquar-
ters of the Company; about 200 persons are employed at
the Center; (2) the Big "M" retail store located adjacent to
Respondent's Distribution Center in Fort Lauderdale
which employes 6 salesmen; (3) the Fort Lauderdale store
on U.S. Highway No. 1, Respondent's largest retail store
which employs 25 salesmen; (4) the North Miami store, 16
employees; (5) the West Miami Beach store, 10 salesmen;
and (6) the South Miami store, 10 salesmen.'
There is no past bargaining history for any of the
employees in the above facilities.
In late February and early March 1975, the above-named
Union started a campaign to organize Mangurian's afore-
noted southeastern Florida facilities, with efforts directed
principally to the organization of the Company's sales
personnel. In March 1975, the Union sponsored union
meetings of Respondent's employees, attended primarily by
salesmen.
The Union has filed a number of election petitions with
the Regional Director for Region 12. On March 7 and -10,
1975, the Union filed such petitions in Cases 12-RC-11823
and 12-RC-4824 to determine whether the sales employees
and the nonsales employees, respectively, at the Company's
West Palm Beach store desired to be represented by the
Union for purposes of collective bargaining.
Similarly, the Union on March 11, 1975, similarly filed
election petitions in Cases 12-RC-4826 and 12-RC-4827 to
determine whether the sales and nonsales employees,
respectively, at the Company's largest store, the U.S.
Highway No. 1 store in Ft. Lauderdale desired to be
represented by the Union for representation purposes.
The next day, March 12, 1975, the Union also filed
election petitions in Cases 12-RC-4828 and 12-RC-4829,
for the determination of whether the sales and nonsales
employees, respectively, at the Company's North Miami
store desired to be represented by the Union for collective-
bargaining purposes.
In the aforementioned Decision and Direction (see fn. 1),
dated May 21, 1975, the Regional Director for Region 12
determined the appropriate unit and gave directions for an
election by secret ballot. The election took place on June
20, 1975.
be made the basis for refindings in this proceeding The number of
employees shown above employed at the distribution center is based upon
the testimony of Respondent's operation manager, John Verille.
116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As prior to the election of June 20, 1975, the Union on
June 9 , 1975, had filed unfair labor charges against
Respondent in Case 12-CA-6795, the present proceeding;
the Regional Director ordered the ballots cast on June 20,
1975 , "to be impounded without counting awaiting ultimate
disposition of the aforesaid unfair labor practice charge."
Pursuant to the Union's unfair labor charge, the Regional
Director issued the complaint in the instant proceeding on
August 12, 1975.
By letter dated August 14, 1975 (Joint Exh. 1), with
respect to the aforementioned election petitions in Mangu-
rian's, Inc., Cases 12-RC-4823, 4824, 4826, 4827, and 4829,
the Regional Director notified Respondent of the contin-
ued impounding of the ballots cast on June 20, 1975, as
follows:
It having been concluded, in- Case No. 12-CA-6795,
that violations were committed by the Employer, a
complaint has now been issued . Since such violations
occurred among employees in the southeast coast unit
found appropriate- in the above-captioned matters, and
no request 'td proceed having been filed, the ballots cast
on June 20, 1975, will continue to be impounded
without counting, awaiting ultimate disposition of the
aforesaid unfair labor charge. (Joint Exh. 1.)
Under the above skeletonized but undisputed back-
ground facts, the, issues in the instant proceeding under the
pleadings are as follows: (1) whether Respondent on two
different dates in March 1975 engaged in surveillance of the
union activities of its employees; (2) whether in March
1975, Respondent discriminatorily promulgated a "no-
solicitation" rule after the Union had filed election petitions
for several of Respondent's stores; (3) whether in April
1975 at Respondent's largest Ft. Lauderdale store on U.S.
Highway No. 1, alleged Supervisor Betty Houston warned
an employee that she had been told by company officials
that, if the Union came in, the store would be closed, and
the preliminary question of whether Betty Houston is a
supervisor within the meaning of the Act; (4) whether on a
certain date in April 1975, at Respondent' s South Miami
store, also known as the South Dixie store, Store Manager
Joseph Bober threatened an employee that she would not
get her $250 escrow deposit back at that time because the
Union was now attempting to organize Respondent's
employees and that the Company might have to shut its
doors because of the Union, (5) whether in early May 1975
Respondent by its president, R. O. Wilson, issued a written
reprimand to an employee for distributing union leaflets at
Respondent's distribution center and warned the employee
that more serious action would be taken if he continued
engaging in union activity; (6) whether in mid-May 1975,
Respondent's then personnel director, Steven- Waldsch-
midt, at the West Palm Beach store threatened that if the
Union came in it would cause the Company to close its
doors; (7) whether in May 1975, Respondent's comptroller,
Jerome Hurd, threatened employees at Respondent's North
Miami store that Board Chairman Wade, of the parent
Company, General Portland, Inc., would close the store if
2 Incorrectly spelled "Putne" in the complaint.
3 Although Respondent in its answer denies that Respondent is an
employer engaged in commerce within the meaning of the Act, Respondent
the Union got in; (8) whether in May or June 1975, Robert
Poutre ,2 a company labor relations representative , warned
employees at the Company's showroom lobby of the North
Miami store that Board Chairman Wade of the parent
Company was a nut and crazy enough to close Mangurian's
if the Union got in. These issues, stated in the order they
appear in the pleadings, will be taken up in different order
below and grouped where possible.
As heretofore noted the complaint herein was issued on
August 12, 1975, pursuant to a charge filed on June 9, 1975.
Respondent's answer denies the alleged unfair labor
practices.
The case was heard on November 10, 11, and 12, 1975, at
Coral Gables, Florida.
For reasons hereinafter indicated, I find the Respondent
in multiple violation of the Act as alleged in the complaint,
except that I have not made findings on two of the five
allegations of the complaint that Respondent threatened
employees that it could go out of business if the Union got
in on the ground that findings thereon would be merely
cumulative of more serious violations already found on the
other three allegations of the same character because the
violations therein were by much higher echelon company
officers and findings on the remaining two allegations of
such threats would not add to the'remedy, and also except
for the dismissal of a surveillance allegation for failure of
proof.
Upon the entire record in the case and from my
observation of the witness , I make the following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
Respondent Mangurian's, Inc., a Delaware corporation,
is licensed to do business in the State of Florida where it is
engaged in the business of operating retail stores and a
distribution center in the States of Florida and Georgia.
During the past 12 months, a representative period,
Respondent had sales valued in excess of $500 ,000, and
during the same period it purchased and received goods
and materials valued in excess of $50,000 directly from
suppliers located outside the State of Florida. Based on
these admitted facts I find that the Respondent is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act which finding is also in
accord with the finding of the Regional Director for Region
12 in his aforementioned Decision and Direction of
Election, Mangunan's, Inc., Cases 12-RC-4823, 4824,
4827, 4828, 4829, and 4838 (consolidated).3
II. THE LABOR ORGANIZATION INVOLVED
Retail , Wholesale and Department Store Union, AFL-
CIO, the Charging Party, is a labor organization within the
meaning of Section 2(5) of the Act.
in its answer and at the hearing admits the basic facts upon which the above
commerce finding is made and in its brief makes no contention that
Respondent is not engaged in commerce within the meaning of the Act.
MANGURIAN'S, INC. 117
M. THE ALLEGED UNFAIR LABOR PRACTICES
A. Issues as to Whether Respondent Made Multiple
Threats To Close Their Retail Furniture Stores if
the Union Got in
The complaint alleges five-separate instances of threats or
warnings by five different company-supervisors to employ-
ees that Respondent could close all of its retail furniture
stores or particular stores in southeastern Florida if the
Union succeeded in organizing the Company's stores.
These alleged incidents will be set forth below in a different
time order than their chronological order in the complaint.
Incident of Poutre's alleged threat of store closings
if Union got in
About a month or so prior to the Board-conducted
representation election held on June 20, 1975, the Company
hired Robert Poutre as its labor relations representative.4
Subsequently at times not here -material Poutre was made
Respondent's personnel director, succeeding to the post
formerly held by Steven Waldschmidt, hereinafter referred
to.
In the weeks prior to the election, Poutre made it his
business to visit each of the Company's retail furniture
stores where in his own words he sought "to help manage-
ment with their campaign" to win the forthcoming repre-
sentation election against the Union. At these visitations.he
also made himself available to answer any questions put to
him by employees about the "issues" in the approaching
election. -
With these objectives in mind, Poutre visited the Compa-
ny's North Miami store one Saturday at a time close to the
election where, after introducing himself as Mangurian's
labor relations representative, he invited questions from the
several salesmen then on duty on the issues in the
approaching election, including longtime salesman Martin
Gorin who had signed a union authorization card in March
1975. Poutre testified that ' Gorin, ' ,in response to his
invitation for questions, asked him if he thought that Mr.
Wade-,, the, chairman of Mangurian's parent Company
(General Portland, Inc.), "would close the plant down if the
Union -came in." Gorin's credited testimony shows that
Poutre's response was that Mr. Wade, "was crazy enough to
4 At the hearing Poutre testified that he was engaged by the Company as
its "management consultant ," but in the pleadings it is admitted that at all
times here,material Poutre was Respondent's labor relations representative
The record further shows that when Poutre called at the Company's North
Miami-.store ' in late May or early June 1975, he introduced himself to
salesman Martin Gorin as the Company's "Labor Relations man."' Under
this state of the record, I do not credit Poutre's testimony that he was initially
hired by Respondent as a "management consultant," whatever that term
might mean
5 Five- other salesmen at the North Miami store at the time of Poutre's
above-descnbed visit to that store likewise denied hearing Poutre making
any statements that Respondent would close its business if the Union got in
These salesmen testified as witnesses in behalf of the Respondent. Their
collective testimony shows that because the day of Poutre's visit to the store
was a Saturday, the busiest day in the week, they frequently left Poutre's
presence to wait on customers In that connection, Jacob Chaykin, one of the
top salesmen at the North Miami store, testified,,"I have a lot of people that
wait for me in turn. So I didn't have much time on that floor I was mostly on
the floor and wasn't able to listen." Thus, the testimony of these salesmen
witnesses who frequently had to leave Poutre's presence to wait on customers
during the course of his store visit and who testified that they did not hear
close down Mangurian's, if the Union got in." Poutre
denies that he made that statement to Gorin, but based on
Poutre's` unconvincing demeanor and his misleading testi-
mony that he introduced himself as Respondent's "man-
agement consultant" when in fact the pleadings and the
evidence shows that his capacity with Respondent was that
of a labor relations representative, I do not credit Poutre's
denial .5
However, while Poutre denies that he made the indicated
statement to Gorin, he admits that, in answer to Gorin's
question of what Mr. Wade would do if the Union got in, he
had answered that although he had not met Wade, in his
(Poutre's) experience, he had found that most board
chairmen of large corporations (of which Mangurian's
parent Company is- one) -were "ego-maniacs." I infer and
find that Poutre's own admitted remark that most chairmen
of large corporations are egomaniacs constituted an im-
plied threat or warning that if the Union won the election it
could trigger Wade into closing up Mangurian's.
Conclusion
From the above findings I find and conclude that
Respondent's labor relations representative, Poutre, at a
time close to the then forthcoming representation election
warned employee Martin Gorin that Chairman Wade of
the parent Company could be crazy enough to close up
Respondent if the Union got in, substantially as alleged in
the complaint.
Incident of Waldschmidt's alleged threat of store
closings if Union got in
On April 28, 1975, a month or more prior to Poutre's visit
to -the North Miami store, Respondent's personnel director,
Steven Waldschmidt,6 made a visit to Respondent's West
Palm Beach store for the express purpose of delivering an
11-page prepared speech to the employees in that store on
the subject of the union activity then taking place there, as
the Union on March 10, 1975, had filed a petition with the
Board for an election by the employees in the store. The
speech was delivered twice; once to half of the employees ' in
the store and then to the remaining half.' The opening
sentence of the canned speech which bears the caption,
"Second Talk," reads: "I want to talk to you about the
him say that Mangunan's, Inc., would close if the Union got in, does not
prove that he didn't make that statement when they were not in his presence.
In addition any review of the testimony of these salesmen witnesses for
Respondent shows that their denials that they heard Poutre say that
Mangunan's would close if the Union got in were merely blanket denials
devoid of any convincing details to lend credibility to their denials. Thus;
their testimony `lacked the ring of credibility. The testimony of salesman
Murray Scher that Poutre on his visit to the store never even mentioned the
subject of unions is especially unreliable as Poutre's own 'testimony shows
that his object in visiting the North Miami store was,"to help management
with their campaign" to win the approaching representation-election and
that he was questioned on what would happen if the Union got in. Finally,
the demeanor of all of these salesmen witnesses were not convincing that
they were telling the truth For all of these reasons I do not credit their
testimony that Poutre did not tell them or some of them in one way or
another that Mangunan's could close if the Union got in.
6 Waldschmidt was no longer an employee of Respondent at the time he
testified herein, having left the employment of Respondent on September 5,
1975, to take a position with another employer. Upon his departure from the
Company or shortly thereafter Poutre became Respondent's personnel
director. `
118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union organizing drive that is going on by some outsiders
known as the Retail, Wholesale, and Department Store
Union and by some of your co-employees." The speech
seeks to convince the assembled employees that it would
not be in their best interests to loin the Union. Typical
sentences in the speech to this effect are as follows: "If you
signed one of these [union authorization] cards, did you
stop and think you were giving up your independence, your
voice as an individual?" "In fact, if this Union should
become your recognized agent, you will no longer be able to
talk for yourself. Mangurian's management will have to
say, `I am sorry, but I can only talk with the Union
Representative about your problem when its time to renew
the contract' " "Once a Union gets in a Company, it is a
complex legal problem to get rid of it. There are no free
demonstrations." The text of the canned speech is in
evidence as Respondent 's Exhibit 3. The typewritten text of
the speech does not of itself contain any express or implied
threats that union activity could cause Respondent to close
down the store.
Since the complaint does not allege any violation of the
Act by virtue of Waldschmidt's canned speech per se as
reflected word for word in Respondent's Exhibit 3, there is
no issue in this proceeding with respect to the speech as set
forth verbatim in the exhibit.
However, counsel for General Counsel contends that
Waldschmidt in delivering his canned speech to the West
Palm Beach store employees departed from its prepared
text and as alleged in the complaint "threatened that if the
Union came in it would cause the Company to close its
doors." Counsel for General Counsel called two employee-
witnesses , salesmen Eugene O'Brien and Rene Proulx, in
attendance at the first employee meeting at which Waldsch-
midt read his speech, in support of the allegation that
Waldschmidt "threatened that if the Union came in it
would cause the Company to close its doors." Long prior to
the incident here involved both O'Brien and Proulx had
signed union authorization cards in behalf of the Charging
Party.
Both O'Brien and Proulx testified that somewhere during
the course of Waldschmidt's reading of the prepared speech
he made reference to the bad business Mangurian's was
experiencing due to the deep decline in the building of new
home construction in Florida and further testified in that
connection that Waldschmidt in effect had stated that if the
Union came in it could possibly cause the Company to
close its doors . That alleged remark by Waldschmidt is not
in the verbatim copy of the prepared speech as reflected in
Respondent's Exhibit 3. The only reference to economic
conditions in Exhibit 3 is the general remark therein that,
"Times aren't too good right now. A lot of people are out of
work and a good portion of those people are union
members." The end of the canned speech invited questions
from the store's employees as follows: "I have just covered
several subjects. Do any of you have any questions on what
I covered?"
O'Brien's precise testimony on what Waldschmidt said at
the meeting with respect to the Company closing down is
the following, "Mr. Waldschmidt stated that the Company
was in a struggle ... for survival at that time ... and that he
said that if the Union got in, it could possibly mean that
Mangurian's would go under." Proulx's precise testimony
in the same connection is that, "Mr. Waldschmidt said that
business was bad, and in the face of that, we have a Union
to contend with, and that if the Union came in, Mangun-
an's would go under and close their doors." The following
exchange took place between me and witness Proulx on the
statement he attributed to Waldschmidt that if the Union
got in the Company would go out of business:
JUDGE BusH: . . . on that statement, I want you to
think very carefully. Was that statement made as part of
the thing [the speech] that was read to you?
THE WITNESS: It was hard to tell, because he
[Waldschmidt ] was reading, and he may have ad libbed
it into the statement . I can't honestly say.
JUDGE BUSH : But you're sure it was made?
THE WITNESS : I am positive . I'm positive the state-
ment was made because I had gotten up and asked if I
could be dismissed from the meeting, at which time, Mr.
Wilson [Respondent 's president ] said, "Yes, nobody
has to sit in who doesn't want to."
Other seemingly conflicting testimony by Proulx appears
to show that he left the meeting, not right after Wald-
schmidt made the alleged statement that Mangurian 's could
close if the Union got in, as shown above, but immediately
after President Wilson, towards the end or at the end of
Waldschmidt's canned speech, accused the Union, either
directly or indirectly, of driving a truck into a company
truck, thereby injuring one of the Company's female
employees.
However, a careful examination of Proulx's testimony as
a whole shows no real conflict in his testimony . A close
scrutiny of his testimony shows that Wilson's alleged
accusation against the Union came immediately after
Waldschmidt (allegedly) told the employees that if the
Union came in Mangurian's could close down and that
thereupon both Proulx and O'Brien , with Wilson's permis-
sion, left the meeting room and that this sequence of events
firmly fixed in Proulx' s mind Waldschmidt's immediately
prior intimation of a possible closure of Mangurian's if the
Union got in.
Waldschmidt directly denied the testimony of O'Brien
and Proulx that he had told the employees that Manguri-
an's would possibly close their doors if the Union got in and
testified that he did not deviate in any way from the text of
his prepared speech and that there were no questions from
the floor after he had read his speech although its
concluding sentences invited inquiries from the floor.
However, when Waldschmidt as a witness for the Company
was asked by counsel for the Company, "Did you say
anything other than what was said in that speech?", his first
response was, "No , I don't recall."
In his direct examination , President Wilson testified that
he was with Waldschmidt at the West Palm Beach store at
the time Waldschmidt read his speech and that while the
speech was being given, he, Wilson, kept a copy of the
speech in front of hun to make sure that Waldschmidt read
it word for word and that there was no variance. However,
on cross-examination , Wilson admitted, "I cannot remem-
ber exactly if I . . . followed him word for word through the
speech." It is also evident from the record that toward the
MANGURIAN'S, INC.
end of Waldschmidt's canned speech and any ad libbing
Waldschmidt may have added that Wilson was to some
extent concentrating on what he planned to tell the
assembled employees about someone's attempt to run one
of the Company's employees off the road.
Respondents fmal witness was Ken Gwaltney, at all
times here material a display designer at the West Palm
Beach store but who prior to the hearing herein had been
transferred at his request to Respondent's store at Atlanta,
Georgia, where he is also employed as a display designer.
He voted in the representation election of June 20, 1975,
and served on that occasion as an observer for Manguri-
an's. He testified that he was present at the employee
meeting at the West Palm Beach store at which Wald-
schmidt gave the speech in question. This was the meeting
which was also attended by the aforementioned salesmen
O'Brien and Proulx. Asked by counsel for Respondent if
anything was said at that meeting about Mangurian's
closing because of union activity, he testified that he "never
heard anything like that at all." He also testified that, after
Waldschmidt finished reading his prepared speech, Presi-
dent Wilson also read a prepared statement. His testimony
that President Wilson at the same-employee meeting also
read a prepared statement to the assembled employees is
completely contrary to fact as there is no evidence or claim
by any of the parties hereto that following Waldschmidt's
reading of his speech that Wilson also made a speech,
canned or otherwise, to the assembled employees. Because
of this complete misstatement of what actually occurred at
the meeting and Gwaltney's unfavorable demeanor evi-
dence, I do not credit his testimony that he "never heard"
Waldschmidt say anything about the possibility of Mangu-
rian's closing down if the Union got in.
At the time Waldschmidt gave his prepared and protect-
ed speech- on the subject of union activity at the Company's
West Palm Beach store and for some years prior thereto,
Mangunan's had an unsatisfactory profit performance.
General Portland, Inc., Mangurian's parent Company,
made the following statements about Mangurian's poor
performance in its 1973 Annual Report to the stockholders
of General Portland: a
DISCONTINUED OPERATIONS
As a result of Mangurian's poor performance over the
last three years, the decision was made in late 1973 to
sell our retail furniture operations . This divestiture will
allow the company to concentrate on its fundamental
business-cement-and should provide in excess of $30
million of previously committed capital funds for
alternative uses.
In October we directed Merrill Lynch, Pierce, Fenner &
Smith to contact potential purchasers of the furniture
retailing business. The Rochester stores were sold in
January 1974, and we anticipate an orderly disposition
of the rest of the business during this year.
Declining volume in the fourth quarter contributed to a
net loss from operations for Mangurian's in 1973 of
$381,000. An additional provision of $5,600,000, net of
taxes, has been made in the fourth quarter of 1973 to
119
cover possible losses relating to the future operation and
disposal of the retail furniture business.
In its 1974 annual report to stockholders, General
Portland, Inc., again reported continuing operating losses
for Mangurian's and also reported that it had been unable
to dispose by sale of Mangurian's retail furniture business.
The report shows that in 1974 that Mangurian's either sold
or closed stores it had in Rochester, Houston, Dallas, and
Denver. President Wilson kept the Florida employees
advised of these out-of-state store closing by postings. Some
of Respondent's Florida furniture salesmen were even sent
to these out-of-state stores to help out on their going-out-of-
business sales. More fully, the parent Company's 1974
report to its stockholders make the following statements on
Mangurian's financial condition and prospects:
MANGURIAN'S. Management made a decision in late
1973 to dispose of the company's retail furniture
business. We have been unsuccessful in selling this
operation to one buyer, however, because of Manguri-
an's unsatisfactory profit performance and the prevail-
ing conditions in the financial markets during 1974. As
an alternative action, we have, during 1974, sold or
closed stores in Rochester, Houston, and Dallas and
Denver-leaving eight stores in Florida and two in
Atlanta, where we have well-established markets.
Mangurian's continued to experience operating losses
during 1974. These losses resulted from a significant
decline in the demand for home furnishings, causing
Mangurian's 1974 sales volume to decrease by 31
percent. As a result, and in anticipation of the continua-
tion of a weak home furnishings market through a
portion of 1975, we increased the reserve for future
losses at Mangurian's by $3,000,000, or $44 per share in
1974.
We are directing our current efforts to improving the
operating performance of Mangurian's and have re-
cruited a new and experienced management team. The
new management has instituted _programs to reduce
inventories and operating costs and to increase sales.
Despite the currently poor demand for home furnish-
ings in Florida and Atlanta we expect improvement in
these operations in 1975.
The record as a whole shows that Mangurian's poor
profit performance continued well into 1975 with rumors
rampant about the possible closing of the Mangurian's
stores in southeastern Florida because of poor business.
Mangurian's president, Wilson, testified that from and after
his appointment as Mangurian's chief executive in August
1974 he considered it part of his job "to suppress the rumors
of going out of business and company closing." He further
testified that at every meeting he had with employees,
"there were questions posed to me about the company
closing, the company closing additional stores, the compa-
ny going out of business or the company being sold."
Approximately seven or eight employees were in atten-
dance at the West Palm Beach, store employee meeting, at
which Waldschmidt delivered his protected address on the
120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union activity at the store. At least four or possibly five of
the employees in attendance were salesmen. The remaining
three or four employees at the meeting were essentially
service employees, such as dock employees, a janitor, and a
display designer, the aforementioned Ken Gwaltney. Of the
four or five salesmen at the meeting, only salesmen O'Brien
and Proulx testified. Respondent did not call any of the
other employees present at the meeting, other than Gwalt-
ney, to refute the testimony of O'Brien and Proulx that
Waldschmidt told the employees at the meeting that
Mangurian's would possibly close their business if the
Union got in. For reasons heretofore stated I have
discredited Gwaltney's denial that Waldschmidt made the
statement attributed to him by O'Brien and Proulx.
As heretofore noted Personnel Director Waldschmidt
delivered the speech in question on April 28, 1975. The
record shows that salesmen O'Brien and Proulx gave sworn
statements on June 19, 1975, 'only some 6 weeks after the
employee meeting, as to what occurred at the meeting. I
infer and find that O'Brien and Proulx in testifying at the
hearing herein in November 1975 had the advantage of
their sworn statements of June 1975 to refresh their
recollections of what Waldschmidt had said to the employ-
ee meeting in April 1975. The record fails to show that
Waldschmidt at the hearing had any such similar-aide to
refresh his recollection of'any ad-lib statements he may
have added to his typewritten speech. As aforenoted,
Waldschmidt's first response was, "No, I don't recall,"
when counsel for Respondent asked him, "Did you say
anything other than what was in that [typewritten] speech."
Discussion and conclusions
From the mosaic of the record as set forth in the above
specific findings, I find and conclude that Personnel
Director Waldschmidt on April 28, 1975, in addressing a
group of the Company's West Palm Beach store's employ-
ees did tell them that because business was bad, if the
Union got in, it could possibly cause the Company to go out
of business. I further find and conclude that this constituted
a threat to the employees that if they voted to be
represented by the Union in the forthcoming election, their
action could cause the Company to close its doors and go
out of business.
I have made the above conclusionary findings in part
because I find both the demeanor evidence and testimony
of O'Brien and Proulx that Waldschmidt did tell the
assembled employees that Respondent could possibly go
under and close its doors if the Union got in is more
convincing than Waldschmidt's denial thereof or President
Wilson's supporting denial. As opposed to Waldschmidt's
uncertainty I find a ring of truth and certainty in the
testimony of O'Brien and Proulx. It was found above that
when I intercepted Proulx's testimony to inquire whether
Waldschmidt's aforenoted remark was part of Wald-
schmidt's prepared speech, Proulx ahswered,"It was hard to
tell because [Waldschmidt] was reading, he may have ad-
libbed it into the statement. I can't honestly say." But when
asked if he was sure that Waldschmidt made the statement,
he replied without hesitation' that, "I'm positive." I also find
that Proulx's refusal to give a categorical answer to the
question of whether the statement was made as part of
Waldschmidt's prepared speech or was ad-libbed is another
indication-of the essential truthfulness and honesty of his
testimony. On the other hand, Waldschmidt's admitted
uncertainty, "I don't recall," about whether at the meeting
he said anything other than what was in his canned speech
is in direct contrast to Proulx's certainty that Waldschmidt
made the statement he and O'Brien attributed to him.
Another factor in my accreditation of the indicated
testimony of O'Brien and Proulx is that although there were
some five or six other employees at the meeting who could
have testified as to whether or not Waldschmidt made the
attributed statement, Respondent did not call any of them
as witnesses except one, the aforementioned Gwaltney, who
no longer resides in southeastern Florida but now lives in
Atlanta where he is employed at Respondent's Atlanta
store. As heretofore shown, his testimony supporting
Waldschmidt's denial that he did not make the statement
attributed to him by O'Brien and Proulx was discredited
because he [Gwaltney] testified to more than what actually
in fact occurred at the meeting and thus established himself
as an unreliable witness.
In addition, other background factors support the con-
clusion and finding here made that the question of whether
the Respondent would remain in business if the Union won
out in the approaching election was virtually certain to have
been brought up at the employee meeting Personnel
Director Waldschmidt addressed because the very subject
of his address was the union activity then going on at the
Palm Beach store. At that time it was well known to
Respondent's Florida employees that the Company's par-
ent company (General Portland, -Inc.), had caused Mangu-
rian stores in other States to be sold or closed because they
were unprofitable and that some of the- -Mangurian's
Florida salesmen had even been sent to such out-of-state
stores as they were being phased out of business to help in
their going-out-of-business sales. At or around the time
Waldschmidt made his speech, rumors that Mangurian's
was going out of business were so rampant that President
Wilson, according to his own testimony as found above,
had to make it his business to deny the rumors and to assure
company employees at all his meetings with them that
Mangurian's was going to keep its doors open in Florida.
These circumstances give additional credence to the testi-
mony of O'Brien and Proulx that Waldschmidt, whether on
his own initiative or in response to a question, told the
assembled employees that Respondent, due to bad busi-
ness, could go out of business if the Union won the election.
Although the record is convincing that Waldschmidt did
not intend the statement to be a threat but on the contrary
merely as an honest opinion, I reiterate the finding above
that in the minds of the employees in attendance at the
meeting the statement constituted a threat that if they voted
for the Union at the forthcoming election it could cause the
Company to shut down its chain of retail furniture stores in
Florida and thus cause them to lose their jobs.-
Incident of ' Burd's alleged threat of store closings
if the Union got in
In an earlier section of this Decision it was found that
Mangurian's labor relations representative, Robert Poutre,
at a time close to the then approaching representation
MANGURIAN'S, INC.
election of June 20, 1975, warned employee Martin Gorin, a
salesman at the North Miami store, thatChairman Wade of
Mangurian's parent Company (General Portland, Inc.),
could be crazy enough to, close , up Mangurian's retail
furniture stores in Florida if the Union got in.
In this section -we deal with a further allegation of the
complaint that Respondent's comptroller, Jerome Burd, in
May 1975 also threatened employees that Chairman Wade
would close the same North Miami store if the Union got
in. The evidence identifies one of the recipients of Burd's
alleged threat to be the same employee, Martin Gorin, who
had been the recipient of a similar warning or threat from
Labor Relations Representative Poutre.'Gorin, as aforenot-
ed, had signed a union authorization card in March- 1975.
The record shows that in early May 1975 Burd, who as
the Company's comptroller was fully conversant with and
much concerned over Respondent's then adverse financial
condition, visited the North Miami store for the purpose of
installing a new procedure for recording tax-exempt sales.
It is admitted that, while Burd was talking to salesman Nat
Donay at the store, Gorin came over and introduced
himself to Burd whom he had not met before. From that
point on Gorin and Burd are in disagreement as to "what
transpired between the two men at that time. Gorin testified
that he joined Burd and Donay in a conversation that
lasted about 5 minutes. He further testified that somewhere
during the course of that three-cornered conversation Burd
stated that Mangurian's would close down if the Union got
in and that he (Gorin) countered that Burd's prediction was
"ridiculous" because "when a company [the parent Compa-
ny] invests 24 to 26 million dollars . . . they're [not] going
to shut down." Gorin testified that he regarded Burd's
prediction of a Mangurian closedown if the Union won the
election as a threat. Under cross-examination, Gorin
admitted that his,' prehearing affidavit of June 17, 1975,
gives the source of'the prediction or threat as coming from
President Wade of the parent Company, as reported to him
by Burd and not as, he testified, by Burd independently of
Mr. Wade, as is reflected in the following sentences from
Gorin's affidavit:
During a conversation in which Mr. Donay and I were
present, Burd stated that [if] the Union went through
'Mr. Wade, President of General Portland, which owns
Mangurian's . . . threatened to close down. I told Burd
to stop being ridiculous. A Company that paid 24 to 26
million to buy out Mangurian's wouldn't do that.
If credence is to be given to either Gorin's testimony as to
what Burd told him would happen to Mangurian's if the
Union got in or to Gorin's version of what Burd told him as
set forth in Gorin's prehearing affidavit, I would credit the
latter as it was closer to the event.
Burd admits that as he was talking to Donay at the North
Miami store that Gorin came up to him and introduced
himself, but denies that following the introduction that
there was any conversation between Gorin and himself.
Thus, in effect Burd indirectly denies that while he was with
Donay and Gorin he made the statement attributed to him
7 According to Gorin, right after he had introduced himself to Burd in the
presence of Donay; according to Burd, in a later conversation that day at
which Donay was not present
121
by Gorin that Mangurian's would close down if the Union
got in.
Burd, however, admits that somewhat later that day he
had a lengthy conversation with Gorin at the store relating
to the poor financial condition of the Company and the
efforts of its officers to turn the Company around.- Burd
also admits that-in this conversation he had pointed out to
Gorin the options that Mr. Wade as chairman of Manguri-
an's parent Company (General Portland, Inc.), had with
respect to Mangurian's, to wit, to either close or sell
unprofitable Mangurian stores as had been done only
recently. Burd was asked by counsel for Respondent
whether in his long talk with Gorin he had said anything
"about the expense involved with the Union or closing
down if a union came in." Burd's response was, "As part of
the general discussion -we-spoke about any adverse situation
that might arise, regardless of its nature." (Emphasis
supplied.) In his further direct testimony Burd admitted
that any adverse labor relations problem could be an
"adverse factor" which could affect Respondent's future.
Respondent did not call salesman' Donay as a witness to
disprove Gorin's testimony that Burd while in the admitted
presence of Donay and Gorin had in one way or another
stated that Respondent would close down if the Union got
in. -
'Discussion and conclusions
Based on the above evidentiary findings and Gorin's
superior demeanor evidence, I find and conclude that
Respondent's comptroller, Burd, told company salesmen
Gorin and Donay in a conversation he had with them at the
North Miami store in early May 1975 that President Wade
of Respondent's parent Company (General Portland) had
threatened to close Respondent's business if the Union won
the then approaching representation election.
While it is clear that there is a time discrepancy between
Gorin and Burd as to when 7 on'the day of Burd's visit to
the North Miami store they engaged in a conversation
concerning Mangurian's poor financial condition, Burd's
testimony shows that such a conversation did in fact take
place between him and Gorin and that the conversation
was a lengthy one. Burd's own testimony also shows that he
told Gorin that Mr. Wade as president and chairman of the
parent Company had the option of either selling or closing
up unprofitable Mangurian stores as he had recently done
in other States and that a serious labor relations problem at
any of the Mangurian stores could trigger Mr. Wade in
exercising one of these options. These admissions in
themselves lend credence to Gorin's testimony and/or
prehearing affidavit that Burd had told him that President
Wade had threatened to close Respondent's Florida stores
if the Union got in. I also credit Gorin's testimony relative
to the threat because Burd in his testimony did not directly
or indirectly deny that he had relayed such a threat by
Wade to Gorin. Since, according to Gorin, salesman Donay
was also present when Burd related Wades alleged threat, I
find that Respondent's failure to call Donay as a witness to
rebut. Gorin's testimony about the threat is a further factor
122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in my accreditation of Gorin's testimony that Burd in his
three-way conversation with Donay and Gorin did tell
them that Wade had threatened to close up Mangurian's if
the Union got in. Finally, I credit Gorin's testimony about
the relayed Wade threat because" Gorin's demeanor was
more forthright and convincing than Burd's indirect denial
that he had said anything relating to Mangurian's possible
closing if the Union got in.
Summary of findings on threats to close down
Respondent if the Union won the election
It was found above that on three separate occasions three
highly placed supervisors of Respondent made threats or
issued warnings to company employees some weeks prior to
a Board-conducted representation election to the effect that
if the Union won the election the Respondent could close
its stores and go out of business. I find that by each of these
acts Respondent interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed in
Section 7 of the Act, and thereby engaged in unfair labor
practices affecting commerce within the meaning of Section
8(a)(1) and Section 2(6) and (7) of the Act. N.L.R.B. v.
Exchange Parts Company, 375 U.S. 405, 409-410 (1964).
I further find and conclude that the findings in each of
these three incidents of threats or warnings constitute
circumstantial evidence in support of the findings of similar
threats and warnings in all three of the incidents.8
B. Issue as to Whether Respondent Promulgated a
Discriminatory "No-Solicitation" Rule
There is no evidence that the Respondent prior to the
advent of the union activity at its West Palm Beach store in
early 1975 had or enforced any rules at that store regarding
solicitations and in fact certain types of solicitation were
undertaken at that store for the Red Cross, the Community
Fund, and the Sunshine Fund for sick employees.
But on or about March 1, 1975, or about 9 or 10 days
prior to the filing of the Union's aforenoted election
petition with respect to Respondent's West Palm Beach
store, the Company posted a notice at that store addressed
"To ALL Employees," the opening paragraph of which
reads, "Since the Union has been putting on a campaign to
get in here , some of you may have been asking questions in
regard to the following matters. We have decided to state
the Company's position on these subjects as clearly as we
can for everybody alike." Following this preamble, the
following paragraphs as numbered in the notice, as here
pertinent, read as follows:
(2) It is ... our positive intention to oppose Unions
by every proper means to prevent it from getting in
here.
8 A further incident of an alleged warning of a store closing by an alleged
supervisor to an employee if the Union came in, is alleged in par 5(c) of the
complaint No findings on that alleged incident are made herein because, if
found as alleged, they would be merely cumulative of identical violations
already found above. A still further incident of an alleged threat of a store
closing by a store manager to an employee if the Union got in is alleged in
par 5(d) of the complaint. (I determine this to be the heart of the allegation
of par 5(d) and not the alleged evidentiary circumstances therein about the
employee's inquiry about the return of her $250 escrow deposit which led up
(4) If anybody causes you any trouble at your work
or puts you under any sort of pressure to join the Union,
you should let the company know, and we will under-
take to see that this is stopped.
(5) Everyone should also know that, as in all matters-
which are unrelated to work, no person will be allowed
to carry on Union organizing activities on the job.
Anybody who does so and who thereby neglects his
own work or interferes with the work of others will be
subject to serious disciplinary action.
By stipulation it is established that after the above notice
was posted on or about March 1, 1975, it remained posted
from that time on through March 9, 1975, but not after
March 9, 1975. I find no creditable testimony of record that
the above notice remained posted at the West Palm Beach
store after March 9, 1975, or that the same notice was
posted at any other of Respondent's stores.
I find that the union activities noted in the preamble of
the above-described posted notices at the West Palm Beach
store continued on at that store at least up to the Board-
conducted election held on June 20, 1975. As heretofore
noted, Respondent's personnel director, Waldschmidt,
delivered a prepared speech to the employees at the West
Palm Beach store on April 28, 1975, in which he took
cognizance of the union activities at the store and sought to
persuade the employees that it would not be in their best
interest to vote for the Union in the then approaching
election.
Discussion and conclusions
In view of the fact that Respondent prior to the advent of
the union activity at its West Palm Beach store in early 1975
had no "no-solicitation" rule with respect to solicitations
for the Red Cross, the Community Fund and its Sunshine
Fund for sick employees, I find and conclude that the
promulgation of Respondent's briefly posted "no-solicita-
tion" rule with respect to union activities at a time when
there was considerable union activity at the store was
discriminatory and, therefore, in violation of Section 8(a)(1)
of the Act. Cf. Logan Manufacturing Company, 162 NLRB
1586 (1967); Pepsi Cola Bottlers of Miami, Inc., 155 NLRB
527 (1965); Walton Manufacturing Company, 126 NLRB
697 (1960).
Respondent's sole defense in its brief to the charged
discriminatory promulgation of its above-described "no-
solicitation" rule is that there has been a technical failure by
counsel for General Counsel to prove that part of the
allegation of paragraph 5(b) of the complaint that alleges
that the rule was promulgated "after the Union had filed
election petitions..... (Emphasis supplied.) This conten-
tion is correct because the record does show that the
Union's election petition for the West Palm Beach store
to the threat of the store closure if the Union got in. Counsel appears to agree
with this view of par. 5(d) of the complaint because in her bnef at p. 18 she
states that par. 5(d), called issue 3(d) in the bnef, relates "to Respondent's
threats to close its doors if the Union got in ") Similarly, no findings are
made on the alleged threat in par. 5(d) because if the threat is found as
alleged it would be merely cumulative of similar threats already found above
to be violations of Sec. 8(a)(1) of the Act.
9 Posted on or about March 1 but removed after March 9, 1975.
MANGURIAN 'S, INC.
was filed on March 10, 1975, or a day after (March 9, 1975),
Respondent's "no-solicitation" rule had disappeared from
the place where it had been posted in Respondent's West
Palm Beach store.
However , I fmd that this factual variance between the
evidence of record , and_ the involved allegation of the
complaint is immaterial and legally inconsequential for the
reasons stated below and accordingly find that the failure
of General Counsel to prove that the promulgation of
Respondent's "no-solicitation" rule took place after the
Union filed its election petitions does not constitute a valid
defense to the alleged violation.
I find first that since the record does not show any motion
by Respondent fora dismissal of the allegation of the
complaint here under consideration because of General
Counsel's failure to prove that the Company's "no-solicita-
tion" rule was promulgated and posted , as alleged, after the
Union had filed election petitions , Respondent is deemed
to have waived that defect and the complaint is deemed and
found to have been amended to conform to the evidence
which shows that Respondent's "no-solicitation" rule was
posted at or about the time the election petitions were filed.
With the complaint thus amended , I reaffirm my finding
that Respondent is in violation of the Act by its promulga-
tion and posting of a discriminatory "no-solicitation" rule.
I also find that the phrase at the end of the charged
allegation in paragraph 5(b) of the complaint reading,
"after the Union had filed election petitions for several of
Respondent's stores," is an unnecessary and redundant
part of the charged violation as it adds nothing essential to
the legal essence of the charge that, "During March 1975,
the exact date being presently unknown , Respondent
discriminatorily promulgated a `no-solicitation ' rule." I
accordingly find that the failure of counsel for General
Counsel to prove that the "no-solicitation" rule here
involved was promulgated after the Union had filed its
election petitions is immaterial and has no direct bearing on
the question of whether the Respondent promulgated a
discriminatory "no-solicitation" rule. If the intent of the
phrase, "after the Union had filed election petitions" was
merely to point up Respondent 's discriminatory motivation
in promulgating its "no-solicitation" rule by tying it up with
the Union's election petitions; the preamble of the rule does
it even better because in it the Company acknowledges that
"the Union has been putting on a campaign to get in here."
In summary I reiterate my finding and conclusion ' that
Respondent's promulgation of its "no-solicitation" rule was
in violation of the Act as alleged in the complaint.
C. Issue as to Whether Respondent Reprimanded an
Employee for Distributing Union Leaflets and
Warned the Employee that more Serious Action
Would Be Taken if he Continued Engaging in Union
Activity
The record shows - that a union meeting of Respondent's
employees was held on Sunday , March 16, 1975, at a
Holiday Inn in Tamarac , Florida, to which all Mangurian's
employees were invited.
To advertise the meeting, two of Respondent's employees
123
and the wife of one of them , passed out union leaflets a few
days before the scheduled meeting at a complex known as
Respondent 's distribution center on Powerline Road in
Fort Lauderdale which consists of two separate buildings
and parking lots. As heretofore shown , one of the buildings,
called the distribution center , serves both as a warehouse
for all of Respondent's Florida retail furniture stores and as
the Company's administrative headquarters . The distribu-
tion center,which faces Powerline Road, straddles the rear of
the land complex ; it is about 400 feet from Powerline Road,
and has a fence in front of it. A private road leads from
about the middle of the distribution center to Powerline
Road. Viewed from the front of the distribution center
facing Powerline Road , there is a large parking lot to the
left of the center . To the right of the center , there is a
smaller parking lot and then a-building known as Respon-
dent's Big "M" store which is a retail clearance or outlet
store for the sale offurniture which is being phased out. The
Big "M '-'" store is also close to and faces Powerline Road and
it also has a customer parking area in front of it. The only
access to 'the entire complex is from a street opening on
Powerline Road adjacent to the front of the Big "M." All
employees at the distribution center must enter and leave
by this exit.
The leaflets were distributed by Rene Proulx„ the sales-
man from Respondent's West , Palm Beach store heretofore
referred to in connection with another issue, and Kenneth
F. Elsie, a salesman from Respondent 's Fort Lauderdale
store on U.S. Highway No. 1, and his wife . Of these three
persons who passed out the union leaflets, only Proulx
testified in connection therewith.
The following is a description of the union leaflet. The
top of the leaflet has a caricature of a business executive at
his desk shouting out over his intercom , "Send me in
someone to fire." Above the head of the caricatured figure
are the printed words, "Wilson , Inc." The evidence shows
that the original of the caricature was drawn by a cartoonist
by the name of Tom Wilson for reproduction in a Sunday
comic strip in one of the local newspapers and that the
caricature was reproduced from the comic strip on the
union leaflet with the added words, "Wilson , Inc.," which
was not on the comic strip. By coincidence the surname,
Wilson, of the cartoonist , is also the surname of Roy
Wilson, Respondent's president. A cutout of the caricature
from the comic strip had been on display in the employees'
lounge room of Respondent's South Miami store for several
months prior to its reproduction in the union leaflet. It had
been put on display by one of the employees at the South
Miami store. At the time Proulx was distributing the union
leaflet some days prior to March 16, 1975 , he had no idea
who had put the caricatured figure at the top of the leaflet.
Beneath the caricatured figure there was the following
invitation to attend Respondent's employees' meeting of
March 16, 1975:
124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
JOIN MANGURIAN'S EMPLOYEE'S, HEAR THE ^ REAL
TRUTH
SUN. MARCH 16TH HOLIDAY INN 8 PM STATE RT. 7
(441)
AND COMMERCIAL BLVD. [At Tamarac, Florida.]10
On May 9, 1975, approximately- 2 months after the
leaflets were distributed at the distribution center, Mangu-
rian's president, Wilson, sent Proulx the following repri-
mand and warning, "Re: Union Meeting Pass-Out Leaf-
let," with copies to various officers of Respondent and the
manager of the West Palm Beach store where Proulx
worked:
I am sure you are aware that it has come to my
attention that you were seen handing out copies of the
attached pass-out to our Distribution Center associates
several weeks ago. Not only did you pass these out to
our Distribution Center associates, but to some of our
Budget Store/Clearance Center customers, as well. I
hope you recognize that some of these customers may
not ever return to our store, and that you very well
could have dramatically effected not only the present
but the future earnings of our associates in the Budget
Store/Clearance Center.
I want you to know that I have no, objections to your
passing out leaflets. However, if you should engage in
such conduct which demeans either Mangurian's or its
management in the eyes of our customers in the future,
more serious action than this reprimand will be taken.
Let's discuss this in the near future.
There is no evidence of record that President Wilson sent
a similar reprimand to Kenneth Elsie for his part in
distributing the union leaflet.
The record is undisputed that all warehouse employees
and all visitors to the distribution center (i.e., the combined
warehouse and administrative office building) must exit
from the center through a guard's gate to get to their cars.
Proulx testified that he distributed the described union
leaflets to some 30 to 40 warehouse employees and only to
such employees after they had walked through the guard's
gate and gotten into their cars. His precise testimony in this
connection is, "I know the employees who came out of the
... distribution center, had to go past the guard's gate to
get into their cars. They were carefully watched as they got
into their cars, and those were the only ones that were
approached." His testimony further shows that if he was
not certain that the persons he saw passing through the
guard's gates and then getting into their cars were ware-
house employees, he personally asked -each person in the
car, "Are you an employee of Mangurian's?" He testified
that unless such persons misrepresented themselves he
passed out the leaflets only to Respondent's employees at
its distribution center. The record shows that the actual
distribution of the leaflets by Proulx and Elsie and his wife
took place near the only exit from the complex onto
10 G.C. Exh. 4(b) is a copy of the ninon leaflet; although the exhibit does
not clearly show the name, "Wilson, Inc," above the caricature, counsel
Powerlme Road which as aforenoted is adjacent to the Big
"M" store.
The only other eyewitness to 'testify herein about the
union leaflets Proulx and Elsie and his wife were passing
out some days before March 16, 1975, at the distribution
center complex was Respondent's operations manager,
John Verille, who has his office in the administrative
section of the center. Upon receipt of word in midafternoon
of the day here involved from one of his supervisors that
leaflets were being distributed on the complex, Verille and
Respondent Vice President Burgujian immediately got into
Verille's car parked inside of the fence alongside the center
and drove up the private road which intersects the complex
towards Powerline Road. Verille testified, that towards the
front of the complex he saw Proulx and Elsie, then
unknown to him, and a lady passing out literature but that
they made no attempt to pass out the literature to him.
Proulx and Elsie were stationed where they could be seen
from the center but the lady behind the Big "M" store near
the exit was where she could not be seen from the center.
Returning from the front part of the complex to the
center, Verille, who in only recent months had- been
promoted to operations manager, reported what he had
seen to President Wilson and then stationed himself at the
front glass doors of the center and for a period of about 2
hours watched Proulx and Elsie passing out the leaflets, one
of which was later brought to him by a.company furniture
driver that afternoon. He testified that he saw the leaflets
"being handed" out by Proulx whom he had previously met
and by Elsie, "to every vehicle leaving the complex." From
this testimony by Verille Respondent seeks a finding by
inference that Proulx and Elsie were passing out the union
leaflets to customers as well as to Respondent's warehouse
employees. This is in direct conflict with Proulx's above-
stated testimony that he gave the leaflets out only to
persons whom he saw coming through the guard's gate at
the center whom he recognized as company employees or
who identified themselves upon inquiry as employees if he
(Proulx) was uncertain of their identity as they passed
through the guard's gate.
Verille admits that he did not receive any' complaints
from any of Respondent's customers concerning the
distribution of the union leaflets to them. The record
contains no testimony by any of Respondent's customers
that they were the recipients of the leaflet.
Discussion and Conclusion
The allegation of the complaint (par. 5(e)), here involved
under the, above findings, reads as follows: "On or about
May 9, 1975, Respondent by its president R. O. Wilson,
issued a written reprimand to an employee for distributing
union leaflets at Respondent's distribution center and
warned him that more serious action would be taken if he
continued engaging in union activity."
In its brief Respondent summarizes its defense to the
above allegation as follows: "It is the Employer's conten-
tion that the reprimand issued in this matter was directed
have stipulated that it had those words printed above caricatured figure in
the leaflet.
MANGURIAN'S, INC. 125
solely to the distribution of demeaning literature to the
respondent's customers. "
As to Respondent's defense that the union leaflets here
under discussion were distributed by employee Proulx to
Respondent's customers, I credit Proulx's testimony that he
distributed the union leaflets exclusively to the employees
he personally saw leaving the warehouse through the
guard's gate in front of the warehouse as against the
inference Respondent seeks from the testimony of its
operations manager, Verille, that some of such leaflets must
have been distributed to customers based on his claim that
he saw Proulx distribute the leaflets to every car exiting
from the complex. Respondent in its brief at a footnote
admits that, "It is, of course, possible that Verille was
mistaken in stating that the leaflets were handed to every
car." The footnote then goes on to state that Verille
"certainly saw Proulx approach the car and talk to the
driver" and that, "Proulx admits stopping the cars and
asking if the occupant was a Mangurian employee." Thus,
Respondent's own statement of the evidence admits ' and
demonstrates the care Proulx took to make sure, as far as
humanly possible, that he was passing out the leaflets only
to Respondent's warehouse employees. Although the leaflet
does not refer to the advertised March 16 meeting of
Mangurian's employees as a union meeting, other indepen-
dent and undisputed testimony by a number of witnesses
shows that the meeting in question was a union organiza-
tion meeting of. Respondent's employees. As the attendance
of Respondent's customers at a union meeting of its
employees would serve no useful purpose in helping the
Company's employees to organize, I find this to be another
reason for crediting Proulx's testimony that he distributed
the leaflet exclusively to Respondent's employees employed
at its distribution center.
In summary I Enid that the leaflets Proulx distributed
were union leaflets, that they were distributed solely to
employees who worked for the Company at its distribution
center and not to any of Respondent's customers.
With the above findiiig, Respondent's other defense that
the leaflet was "demeaning literature to Respondent's
customers" also fails because as shown above the leaflets
were passed out only to Respondent's employees. Actually
the claim that' the leaflet was demeaning literature to
Respondent's customers refers not to_ the printed-notice of
the union meeting, but to the caricature of the business
executive at the top of the leaflet, shouting into his
intercom, "Send me in someone to fire!" and the printed
letters above the figure, reading, "Wilson, Inc.," which in
part contains the surname of Respondent's aforenoted
president. It is again rioted that while Proulx, of course,
distributed the leaflet, he had nothing to do - with the
placement of the caricature on the -leaflet and had no
knowledge of who did it.
But regardless of the - source of the caricature and the
inscription above it, the allegedly demeaning caricature in
this case does not fall into the character of the "literature"
the Board in Respondent's cited case of Thompson Products,
as In Maryland Drydot'l, a union newspaper attacked an association of
supervisors as a "scab" association as defined in Jack London 's'abusive
definition of that term , another part of the same newspaper issue stated that
the Company's president, a Mr French, was "popularly knbwn'as Gooiie",
Inc., Thompson Aircraft Products Company, 57 NLRB ' 925
(1944), found to be impermissible and therefore subject to
an effective defense against an alleged 8(a)(1) violation
because in the Thompson case the involved employee's
speeches "were of an inflammatory character, severely
critical of management" and "transcended an employee's
undoubted freedom to engage in discussions of his own
liking on his own time .... " (See footnote in cited case at
970.) Similarly, the caricature here involved does not
likewise remotely resemble the union "literature" in Re-
spondent's other cited case of Maryland Drydock Company
v. N.L.RB., 183 F.2d 538 (C.A. 4, 1950), which the court
found to be "scurrilous and defamatory because it "holds
its [the company's] officers and supervising officials up to
ridicule and contempt"" and accordingly found the
employer therein not guilty of an unfair labor practice
because it had forbidden the distribution of such literature
on its premises.,
By contrast the caricature here involved, while not in
good taste, merely in protected truth depicted the right of
an unorganized employer to fire an employee for any or no
reason as against an organized employer who under a
collective-bargaining agreement can only ordinarily fire for
just cause.
From the record as a whole I find and conclude that
Respondent President Wilson used his unproven specula-
tion that Proulx had been distributing demeanatory litera-
ture to the Company's customers as a pretext for issuing to
him his written reprimand approximately 2 months after
the event for engaging in union activity by distributing
union leaflets at the Company's distribution center and for
warning him therein that more serious action would be
taken if he engaged in union activity. I further find and
conclude that this act and conduct-by Respondent through
its president is an unfair labor practice in violation of
Section 8(a)(1) of the Act.
D. Issues as to Alleged Surveillance of Union
Activities on March 9 and 16, 1975
In the complaint, Shop Supervisor Antonio Pagliuco, Jr.,
commonly known and hereinafter referred to as Tony Pagg,
is accused of engaging in surveillance of the union activities
of Respondent's employees on March 9, 1975, at a Holiday
Inn in Fort Lauderdale located within about three blocks of
Respondent's distribution center, and again on March 16,
1975, at a second Holiday Inn, located at the nearby city of
Tamarac, some 3 miles from Respondent's distribution
center.
The record is undisputed that a union meeting of
Respondent's employees was held on Sunday, March 9,
1975, at the Holiday Inn in Fort Lauderdale near the
Company's distribution center and that a second union
meeting of the Company's employees was held on Sunday,
March 16, 1975, at the Holiday Inn at the neighboring town
of Tamarac. ,
- - The record is likewise undisputed that Pagg saw and/or
was seen in the parking areas of the two motels by some of
a later issue of the paper stated that French should not be called a "Goosie"
as he was more like a vulture; a still later issue of the paper lampooned
French and held him up to ridicule in doggerel verse as a goose and vulture
126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's employees on the two Sundays here involved
as they were entering or leaving one or the other of the two
Holiday Inns. Pagg, a lower echelon supervisor, according
to his credited and undisputed testimony, was under prior
group instruction to-all supervisors by the aforementioned
Personnel Director Waldschmidt, "not to interfere with any
type of union meetings, whether to ask who are there or
where they were at, just to stay clear of them and let them
do their thing."
Pagg, however, testified that on the Sundays of the two
union meetings here involved he was not at either of the two
motels for the purpose of surveillance but was at the
parking areas of the two motels solely for the purpose of
meeting and having his usual and customary Sunday
rendezvous with his girl friend, Barbara Haynes, a hairdres-
ser, who testified herein in corroboration of Pagg's testimo-
ny. Their joint testimony shows that they are both divorced
parents, that Pagg lives with his three minor children at a
residence near Fort Lauderdale Holiday Inn, that Barbara
lives with her two children -at a residence not far from
Pagg's residence, that because of their children the only
place they can meet at with any privacy is the Holiday Inn
in Fort Lauderdale near Pagg's home and that they have
had a rendezvous at the Holiday Inn on virtually -every
Sunday in the past 2 years, including the Sundays of March
9 and- 16, 1975, here involved.
Their testimony also shows that before having their usual
Sunday evening trysts at the Holiday Inn near Pagg's home
they spend their Sunday afternoons taking in social
functions sponsored by an organization known as Parents
Without Partners (PWP). When the PWP meeting ends
about 5 p.m., Pagg and Barbara would go to their respective
homes, presumably to feed their families, and then meet
again at the Holiday Inn near Pagg's home around 8 p_m.
Their testimony shows that after a drink at the Inn and
perhaps a car ride they would spend the night or a portion
thereof together at the Inn. Pagg testified that it was their
custom to stay at the Holiday Inn near his home "because
Mangurian has an account with Holiday Inn, and we get a
discount rate year around, where the rates don't go up
during season time."
Following the union meeting that took place on Sunday,
March 9, 1975, at the Holiday Inn near his home, Pagg
heard that another union meeting of Respondent's employ-
ees was scheduled for the following Sunday, March 16, but
as he did not have a printed notice of the meeting he
assumed it would, like the previous meeting, take place at
the Holiday Inn near his home. For this reason and to avoid
12 Respondent 's salesman, Robert Blackwell, is one of General Counsel's
two witnesses who saw Pagg on the parking lot of the Fort Lauderdale
Holiday Inn on the evening of Sunday, March 9, 1975, where a union
meeting of Respondent's employees was being held. Blackwell testified that
he saw Pagg standing in the parking lot of the Inn between two cars that
night with, "A piece of paper [in his hand]. Whether it was an envelope, a
pad, but there was something white papensh in his hand " Blackwell was
about 30 feet from Pagg when he made this observation about 8 p.m. At the
time he made the observation he did not see a pencil or pen in Pagg's hand.
Heretofore mentioned salesman Proulx, the only other General Counsel
witness who saw Pagg at the parking lot of the Inn about the same time of the
evening as Blackwell saw Pagg, testified that he did not notice or see Pagg
holding anything in his hand. Although Pagg was not questioned by counsel
for Respondent as to whether he, as Blackwell testified, had "a piece of paper
. . an envelope , or a pad in his hand" when Blackwell saw Pagg on the
evening of March 9 at the Fort Lauderdale Holiday Inn and accordingly did
even giving the impression of surveillance, Pagg and
Barbara forewent their usual meeting place at the Holiday
Inn in Fort Lauderdale and instead started their Sunday
rendezvous of March 16 at the Holiday Inn at Tamarac,
some 3 miles away. There on the parking lot of the Tamarac
Holiday Inn, Pagg saw one of Respondent's salesmen,
George Limbers, pull in with his car. Pagg's impression was
that Limbers had mistakenly come to the Tamarac Inn for
the union meeting, but nevertheless he and Barbara
immediately drove to a restaurant across the street "just in
case" as Pagg put it he turned out to be wrong in his belief
that the union meeting for that night was to take place at
the Fort Lauderdale Holiday Inn. After they had been at
the restaurant across the street from the Tamarac Holiday
Inn for a few minutes, Pagg believed that he saw Limbers'
car leave the parking lot of the Holiday Inn. Pagg and
Barbara then drove back to the Tamarac Holiday Inn but
upon finding what they believed was Limbers' car was still
on the Inn's parking lot, they decided that the union
meeting was after all taking place at the Tamarac Holiday
Inn. They thereupon pulled out and drove to the Fort
Lauderdale Inn where they usually stayed and spent the
night there.
The record further shows that Pagg, mindful of Personnel
Director Waldschmidt's instructions to Respondent's su-
pervisors to keep away from any union activities of the
Company's employees, made a special effort to avoid a
rendezvous with his girl friend Barbara Haynes at their
usual place of meeting on March 16, 1975, at the Fort
Lauderdale Holiday Inn where the previous union meeting
of March 9 had been held and where he believed the March
16 meeting would be held, by going to the Holiday Inn in
Tamarac only to find that the union meeting was after all to
take place there that evening contrary to his expectation.
They thus, as noted, fled from the Tamarac Holiday Inn
and drove back to the Fort Lauderdale Holiday Inn for
their rendezvous.12
Discussion and conclusions
Based primarily on Pagg's demeanor and also on the
uncontradicted testimony of both Pagg and his girl friend,
Barbara Haynes, that it has been their custom for the past 2
years to meet quite regularly at the Holiday Inn in Fort
Lauderdale near Pagg's home on Sunday nights and more
particularly upon their uncontradicted testimony about
their rendezvous on Sunday, March 9, 1975, at the Fort
Lauderdale Holiday Inn and about their aborted rendez-
not deny Blackwell's testimony, I find Blackwell's testimony does not justify
for a number of reasons an inference that on the evening in question Pagg
was engaged in making a written list of Respondent's employees as he saw
them that evening entering the Fort Lauderdale Holiday Inn. One reason for
the refusal to make such an inference is that Blaackwell was obviously
uncertain as to what he saw in Pagg's hand as he well could be as he was
observing Pagg from a distance of 30 feet about 8 p m;, in early March when
night was beginning to set in. Another reason for refusing the inference is
that Blackwell did not see a pencil or pen in Blackwell's hand. A third reason
for refusing the inference is that Proulx, who saw Pagg at the parking lot of
the Inn about the same time that Blackwell did, testified that he did not see
any writing material in Pagg's possession. Finally, the whole tenor of Pagg's
testimony as to his customary Sunday night rendezvous with his girl friend at
the Fort Lauderdale Inn and Pagg's demeanor shows that he was not at the
Inn for purposes of surveillance of union activities and that the presence of a
union meeting at the Inn was a fortuitous coincidence
MANGURIAN'S, INC. 127
vous on Sunday, March 16, 1975, at the Holiday Inn in
Tamarac, I fmd and conclude that Pagg's presence at the
above dates and places was fortuitous and wholly unrelated
to the union meetings then being held at the two motels and
that accordingly there has been a failure of proof that Pagg
by his mere presence at said times and places was engaged
in surveillance of the union activities of Respondent's
employees as alleged in the complaint.
The above finding is in accord with the intimation, based
primarily on demeanor, I made to counsel for General
Counsel at the conclusion of the testimony upon inquiry as
to my views on the surveillance issue.
Thus the demeanor evidence and the record is pervasive
that Pagg's presence in the vicinity of the two Holiday Inns
while union meetings were held or were about to be held at
the two Inns were merely fortuitous coincidences.
General Counsel urges, in the event of an adverse fmding
on the surveillance issue as made above, that a violation of
Section 8(a)(1) should "nonetheless be found, since, in the
circumstances presented herein, Pagg's conduct unques-
tionably created an impression of surveillance," if not
actual surveillance, "yet the Respondent took no action to
disabuse the minds of the employees of the impression they
might well have gained, to wit, that Pagg was present for the
purpose of spying upon employees' union activities so that
he might transmit knowledge of same to the Employer."
Counsel for General Counsel as her only authority for that
proposition cites a 1949 case by the Board in International
Union, United Automobile, Aircraft & Agricultural Implement
Workers ofAmerica, (CIO); (The North Electric Manufactur-
ing Company), 84 NLRB 136, which merely adopts a Trial
Examiner's decision on the proposition without any discus-
sion thereon. I find that the facts and circumstances in the
cited case are so wholly different than the facts in the within
case that the present case is not controlled thereby.
Additionally I fmd that General Counsel is not entitled to
the alternate finding it seeks that Respondent "created an
impression of surveillance" because there is no allegation to
that effect in the complaint.
Upon the basis of the foregoing findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent Mangurian's, Inc., is an employer en-
gaged in commerce within the meaning of Section 2(6) of
the Act.
2. The above-named Union is a labor organization
within the meaning of Section 2(5) of the Act. -
3., By interfering with, restraining, and coercing its
employees in the exercise of rights guaranteed in Section 7
of the Act, Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
13 In the event no exceptions are filed as provided by Sec. 102 46 of the
Rules and Regulations of the National Labor Relations Board the findings,
conclusions, and recommended Order herein shall, as provided in Sec 102 48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that Respondent engaged in certain unfair
labor practices, I shall recommend that it cease and desist
therefrom and take certain affirmative action of the type
which is conventionally ordered in such cases as provided
in the recommended Order below , which I find necessary to
remedy and to remove the effects of the unfair labor
practices and to effectuate the policies of the Act . Because
of the character and scope of the unfair labor practices
found, I shall recommend a broad cease-and-desist order.
Upon the foregoing findings of fact and the entire record
in this proceeding , I make the following recommended:
ORDER13
Respondent, Mangurian's, Inc., its officers, agents, suc-
cessors, and assigns, shall:
1. Cease and desist from:
(a) Discriminatorily promulgating a no-solicitation rule,
(b) Issuing written reprimands and threatening employ-
ees with reprisals for engaging in union activities.
(c) Threatening to close its retail furniture stores if the
Retail, Wholesale and Department Store Union, AFL-
CIO, or any other labor organization, became the represen-
tative of its employees for the purpose of collective
bargaining.
(d) In any other manner interfering with, restraining, or
coercing its employees in the exercise of rights guaranteed
to them by Section 7 of the Act.
2. Take the following affirmative action which will
effectuate the policies of the Act:
(a) Post at its distribution center in Fort Lauderdale,
Florida, and at its various retail furniture stores in Fort
Lauderdale, West Palm Beach, North Miami, and South
Miami, copies of the attached notice marked "Appen-
dix." 14 Copies of said notice, on forms provided by the
Regional Director for Region 12, after being duly signed by
Respondent's representative, shall be posted by Respon-
dent Immediately upon receipt thereof at the locations
noted above and be maintained at such locations by it for
60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are custom-
arily posted.' Reasonable steps shall be taken to ensure that
said notices are not altered, defaced, or covered by any
other material.
(b) Notify the Regional Director for Region 12, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken herein.
IT IS ALSO ORDERED that paragraph 5(a) of the complaint
be dismissed for failure of proof.
14 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted
by Order of the National Labor Relations Board" shall read "Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."