Roy's Carpet Land, Inc.

National Labor Relations Board - Board Decisions

Feb 16, 1977

228 N.L.R.B. 253 (N.L.R.B. 1977)

ROY'S CARPET LAND 253
Roy's Carpet Land , Inc. and Retail Employees Union,
Local 1459, Retail Clerks International Associa-
tion, AFL-CIO. Case 1-CA-11452
February 16, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
WALTHER
On December 9, 1976, Administrative Law Judge
Nancy M. Sherman issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and has
decided to affirm the rulings, findings, and conclu-
sions 1 of the Administrative Law Judge and to adopt
her recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Roy's Carpet
Land, Inc., Springfield, Massachusetts, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
' Contrary to the remedy recommendations of the Administrative Law
Judge, Member Walther would relegate to the compliance procedure the
issue as to the number of salesmen needed by Respondent during the
backpay period or portions thereof.
DECISION
STATEMENT OF THE CASE
NANCY M. SHERMAN, Administrative Law Judge: This
case was heard at Boston, Massachusetts, on July 29 and
30, 1976, pursuant to a charge filed on February 18, 1976,
and amended on March 2 and April 6, 1976; and a
complaint issued on April 9, 1976. The questions presented
are whether Respondent Roy's Carpet Land, Inc., (a)
violated Section 8(a)(1) of the National Labor Relations
Act, as amended (herein called the Act), by threatening and
interrogating about activity on behalf of Retail Employees
Union, Local 1459, Retail Clerks International Association,
AFL-CIO (herein called the Union; (b) violated Section
8(a)(3) and (1) of the Act by laying off employees Peter
Cowles, Fredrick Baxter, Philip Buscemi, and David Kane
to discourage union activity; and (c) violated Section
8(a)(5) and (1) by refusing to bargain with the Union under
circumstances calling for a bargaining order.
228 NLRB No. 43
Upon the entire record, including my obseraation of the
witnesses, and after due consideration of the helpful briefs
filed by Respondent and by counsel for the General
Counsel, I make the following:
FINDINGS OF FACT
1. JURISDICTION
Respondent, a Massachusetts corporation with its princi-
pal office and place of business in Springfield, Massachu-
setts, is engaged in the retail and wholesale sale and
distribution of carpet and related products. Respondent
annually purchases goods valued at more than $50,000
from points outside Massachusetts. I find that, as Respon-
dent admits, it is engaged in commerce within the meaning
of the Act, and that assertion of jurisdiction over its
operations will effectuate the policies of the Act.
The Union is a labor organization within the meaning of
the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Ernest Roy, Jr., who is Respondent's president, originally
ran the business as a sole proprietor. Roy testified that the
business was incorporated about 1972, and Respondent's
answer admits its corporate status, but no articles of
incorporation have ever been filed. Until about June 1974,
the business occupied only a 4,000-square-foot crudely
heated warehouse. The staff then consisted of Company
President Ernest Roy, Jr., his wife and family, and one
employee. Roy testified that business was "good" in 1972
and 1973.
About early 1974, Roy and his wife Jane purchased the
building which Respondent has occupied at all times since
about June 1974. The Roys made this purchase at least in
part because they believed that the building was a good
buy, entirely apart from considerations relating to Respon-
dent's business . In order to obtain a mortgage on the
building, the Roys had to obtain a tenant who would pay
the same rent as the previous tenant. Accordingly, and
because Respondent's first landlord had increased the
monthly rental to $1,000 from $300, Respondent leased
part of the building from the Roys at a monthly rental of
$2,500. After moving into the new building, Respondent
engaged in retail sales, in which Roy had little or no
previous experience, as well as continuing its wholesale
business. At the time of the hearing, in July 1976, the
portion of the building not occupied by Respondent was
still empty. In consequence of the lease, the square footage
occupied by Respondent's business more than quadrupled,
and Respondent needed additional personnel to cover the
premises. After the move to the new building, Respondent's
telephone bill, which had been about $100 a month for one
telephone, increased to $400 a month for six telephones.
When testifying in connection with the mid-1974 move,
Roy testified, "Ms present building had so much space
that my operating costs increased approximately 10 times
that it had been in the other location." He further testified,
"Because of the drop of business and the fact that the
economy was generally poor at that time [in mid-1974] .. .
254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
even though my cost of operation went up to say 10 times,
my gross sales were approximately the same ." Roy also
testified that business "was not too bad" in 1974. Respon-
dent's 1975-76 business is discussed infra.
B. The Hire of Peter Cowles
Most of Respondent's retail sales of floor covering are
"closed" during evening hours or on Saturdays , when both
the husband and the wife are able to come to the store.
Prior to early January 1976 ,1 Respondent's store was open
until 9 p .m. every evening but Wednesday . About early
January, when Respondent had only two salesmen in its
employ, Roy told salesman Buscemi that Roy planned to
hire another salesman so that Respondent could remain
open on Wednesday nights and could handle increased
business , including an increase which Roy anticipated from
a new advertising campaign.
On January 15, Roy hired a third salesman , Peter Cowles,
with whom Roy had had previous contacts when Cowles
was working for other floor covering establishments and
when he operated his own floor covering store. Roy and
Cowles agreed that Cowles was to work on a commission
basis, either 7 or 9 percent , for about 3 weeks, at which
point Roy expected business to improve as people started to
receive their income tax refunds . Thereafter, Cowles was to
make between $ 100 and $150 a week plus 5- to 7-percent
commission. Cowles was to work Monday through Thurs-
day from just before lunchtime until 9 p .m., and on
Saturday from 9 or 10 a.m. until about 5 p.m 2
When Cowles received his first paycheck , he pointed out
to Roy that no taxes had been taken out, and said that
Cowles was going to have to turn the stub in to the
unemployment compensation office to establish his entitle-
ment to partial unemployment compensation .3 Roy replied
that the failure to deduct taxes was "all right." The
following week, Cowles told Roy that a representative of
the unemployment compensation office had told Cowles
that Roy would have to deduct taxes from Cowles'
paycheck . Roy replied that to avoid "hassle with the
I
All dates hereafter are 1976 unless otherwise stated.
2 My findings in this paragraph are based on Cowles' testimony. Roy's
testimony that Cowles was originally hired to work about 12 hours a week
and on a straight 7-percent commission gains some support from the fact that
he was paid a straight 7-percent commission each of the 5 weeks (although 2
were partial weeks) he worked , and the evidence that Cowles covered
Baxter's hours during 5 to 7 days when Baxter was out sick; Baxter's day off
was Tuesday, and his union card avers that he worked the day shift, 48 hours
a week . However, Roy's version gives no explanation for Cowles' action
(testified to by Roy), during Cowles' last week of employment, in submitting
a wage claim based on $ 100 a week plus a 5-percent commission, which claim
Roy rejected (by his own testimony) because the other salesmen were on
salary. Further, Cowles ' demeanor impressed me much more favorably than
did Roy's. Moreover, Cowles' testimony gains some support from (1) the
entries on his union card, which he filled out at a time when he had no
conceivable reason for falsification ; (2) Buscemm 's testimony, partly support-
ed by Cowles' commission statements, that when preparing these statements
Buscenu left the commission rate blank because Cowles "would tell me one
week it was 7 percent. The next week was 9, 1 never knew"; and (3) Cowles'
testimony that after being hired on Wednesday, January 15, he worked 3
days and a total of about 28 hours the first week, 5 days and a total of about
32 hours each of the 2 subsequent weeks , and 4 days and about 42 hours his
last week , on Friday of which he was terminated . The only other record
evidence bearing on Cowles' work schedule is his commission statements,
which credit him with sales on Friday, January 23, and Friday, January 30,
even though he denied working on Fridays. Perhaps Cowles was credited
unemployment office" he would make the check out to
Cowles' wife , and did so. Cowles, who needed the money
badly, accepted this check and left .4
C. The Union Organization and the Bargaining
Demand
With Cowles' hire, Respondent's employee complement
consisted of three salesmen (Cowles, Buscemi, and Baxter)
and a warehouseman, Kane. All but Cowles were salaried .5
They were relatively satisfied with their wages and felt they
were well treated, but were annoyed because they frequent-
ly had no meal breaks, their paydays were unpredictable,
and Respondent had no fixed sick leave policy. The
employees discussed these problems among themselves and
decided that they should call a union. The older employees
asked Cowles to call, and he said, "Okay ... I'm not afraid
to call the union." Cowles suggested a call to the Teamsters
Union, which said it had a long waiting list and referred the
employees to the Retail Clerks, the Union herein.
Thereafter, between January 28 and 30, Cowles tele-
phoned Union Secretary-Treasurer Richard Cutshaw and
arranged for a meeting on February 2. All four employees
attended. Cutshaw passed around authorization cards, read
them aloud, and asked the employees if they had any
questions. So far as the record shows, none of them did.
Cutshaw explained that the Union used the authorization
cards for two purposes; namely, to know where to reach the
employees, and to prove to the Employer that the Union
represented a majority of the employees in order to induce
him to recognize it as their bargaining agent. Cutshaw told
the employees that the Employer was not supposed to know
who signed the cards, and that any card check to determine
the Union's majority status would be made by a disinterest-
ed third party. Cutshaw further said that, if the Union
demanded recognition and Respondent declined, the
Union would then ask the Board for an election, which the
with sales which other salesmen closed with customers initially contacted by
Cowles. In any event, Friday work by Cowles would not shorten his
workweek.
3 Cowles was anxious to "make sure that everything [was ] strictly up and
up" regarding his taxes , because he feared that if he got into further tax
trouble the Internal Revenue Service might attach his house to collect taxes
he already owed.
4 My findings in the last two sentences are based on Cowles' testimony
Roy testified that he made out his check to Mrs. Cowles because Cowles,
without volunteering or being requested to give an explanation, asked him to
Respondent contends in its able brief that Roy should be credited because a
paycheck not made out to Cowles would have enabled him to receive full
rather than merely partial unemployment compensation, whereas Roy would
allegedly have benefited by a check to Cowles in that Roy could have made
tax deductions therefrom and retained them for a while. However, Roy
conceded that Cowles told the unemployment compensation authorities that
the check to Mrs. Cowles represented his earnings. Moreover, once Roy
reported to Federal authorities (as he had not yet done) that deductions of
any sort were being made from Cowles' paycheck, these authorities would
have been put on notice that Respondent itself owed social security taxes
based thereon. On balance, and after considering the witnesses' demeanor, I
credit Cowles.
5 Buscemi credibly testified that, when he was hired, he was guaranteed a
particular salary but was also promised a percentage of gross sales if that
percentage exceeded the guarantee (see infra). So far as the record shows, he
received only his salary.
ROY'S CARPET LAND 255
Union would try to expedite. All four employees signed
union cards at that meeting.6
On February 5, Cutshaw came to the store with Union
President Joseph DiFlumera. Three of the employees
(Cowles, Buscemi, and Baxter) were at their desks. Kane
was in the warehouse.T After Cutshaw introduced DiFlum-
era to the employees , Baxter used the internal telephone
system to call Roy out of his office. Mrs. Roy was there in
the office, where the Roys were having a rather unpleasant
discussion about their family problems and their and
Respondent's financial problems . Upon receiving Baxter's
call, both Roys came into the showroom.
DiFlumera then said that he and Cutshaw were from the
Retail Clerks Union, that the Union represented a majority
of the employees, and that DiFlumera wanted to sit down
and discuss the matter with him. Roy turned to Mrs. Roy
and said, "You'd better shut the door, lock the place up,
we're shutting down." DiFlumera then cautioned Roy to be
careful about what he said, that there were things that were
illegal for him to say at that point, especially in the
employees' presence. DiFlumera advised Roy to get a labor
attorney. DiFlumera stated that the Union was prepared to
prove its majority through an impartial party if manage-
ment desired, reached into his coat, and started to take the
employees' union cards out of his pocket. Roy grabbed
them from DiFlumera's hand and started to read the names
off the cards. When he came to "Peter Cowles," Roy threw
Cowles' card on the floor and said that he was not an
employee. DiFlumera again cautioned Roy to watch what
he was saying because he was violating certain laws, and
again advised him not to say anything else without
representation from a good labor lawyer. At this point, Roy
said that he had nothing against unions, that he himself had
once been a union member , and that he thought something
could be worked out without any problems. DiFlumera and
Cutshaw said that they would return shortly to give him a
6 The cards read , in part:
Retail Employees ' Union Local 1459
s s • s
Authorization for Representation
Desiring to enjoy the rights and benefits of collective bargaining, I
hereby authorize Retail Clerks International Association, AFL-
CIO, or its chartered Local Union to represent me for purposes of
collective bargaining , respecting rates of pay, wages , hours of employ-
ment, or other conditions of employment , in accordance with applicable
law
r My findings in the last two sentences are based on the employees' and
Roy's testimony . Cutshaw 's direct testimony was consistent with theirs. I
believe he was mistaken in testifying on cross-examination that Kane was
there and Cowles was not.
8 My findings in this paragraph are based on the mutually corroborative
testimony of Cutshaw and the three employees . For demeanor reasons, I
credit Roy's version of this visit only to the extent that it is corroborated by
the other witnesses . More specifically , I do not credit Roy 's testimony that he
did not grab the cards from DiFlumera; or that during this visit Roy said he
needed only two men unless the salesmen agreed to go on commission,
DiFlumera said Roy could not lay anyone off, the union representatives met
letter of recognition (whose meaning they explained to him)
for his signature. The union representatives then left the
store.8
The union representatives then returned to the union
office and had a demand for recognition 9 and a recognition
agreement typed up. Approximately 1-1 /2 to 2 hours after
their first visit, they returned to the store. Roy asked them
to come into his office, where he introduced them to his
wife. After saying hello, she stood on the other side of the
room with her back to the others. The union representatives
gave the demand letter and the recognition agreement to
Roy. Roy said that he had family and other problems at the
time, that his wife was not happy about the Union, that she
owned the building where Respondent's operation was
located (without mentioning Roy's coownership), and that
she was going to leave him if he recognized the Union. Mrs.
Roy then "stormed" out of the office. Roy asked the union
representatives if they "couldn't possibly come back in a
year or so." DiFlumera said no, that the Union wanted to
be recognized at once . Roy continued to elaborate on his
personal problems. DiFlumera said that the union repre-
sentatives could not stay there all day, and asked Roy to
telephone the next morning to give his decision. Roy
agreed. As the union representatives left Roy's office,
DiFlumera held his hand against Roy's head, as if DiFlum-
era were holding a gun, and said, "This is like we've got a
gun at your head and we're playing Russian roulette and
you never know when the shot's going to come, we're
pulling the trigger." to Roy and the union representatives
appeared to be in a jovial mood, and everyone there
laughed."
Roy never kept his promise to telephone the Union about
the proposed recognition agreement . Either just before or
just after the union representatives left, Mrs. Roy told
Cowles that she was "very upset" at what he "did to" Roy.
Cowles replied that the employees were trying to get regular
with the Roys in the office and outside the employees' presence , and the
union representatives offered to permit a layoff in a few months if
Respondent would recognize it at once and business continued to be poor.
Nor do I accept Respondent 's contention that initially Roy did not know
why the union organizers were there, and thought they might have had
something to do with the Division of Employment Security and Cowles'
collection of unemployment compensation funds. Roy testified that DiFlum-
era began by saying that "he represented the fellows "
9 The demand for recognition stated:
This is to advise you that we represent a majority of your employees
employed at your State Street , Springfield, Mass. location, for the
purpose of collective bargaining and other conditions of employment.
We hereby request that you meet with us in order to negotiate a
mutually acceptable agreement with respect to all full time and part time
employees as defined under the National Labor Relations Act. We are
prepared to prove our majority status by a show of cards authorizing us
to represent your employees.
io My finding in this sentence is based on Baxter's testimony , to some
extent corroborated by Roy . In view of Baxter's testimony on redirect
examination that DiFlumera made these remarks after leaving Roy 's office,
which on the credited testimony DiFlumera entered during the second visit
but not the first , I do not believe Baxter's testimony on cross-examination or
Roy's testimony that this conversation occurred during the first visit.
ii This finding is based on Baxter 's testimony . In view of such credited
testimony, I do not credit Roy's uncorroborated testimony that he replied,
"My wife's got a gun . I have some tax problems . And my creditors So you've
got four guys with guns to my head I don't give a God damn who pulls the
tugger for it I'm just fed up with the whole damned thing ... can we get
away from my wife and see if we can do something here?" Roy testified that
DiFlumera's remarks were "theatrical" and "I didn't take it as a threat "
256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
paydays, regular lunch periods, and a health program. Mrs.
Roy replied, "I'll never speak to you again as long as I live."
Cowles replied, "Well, that's fine by me."
Thereafter, and at some time before 7:30 a.m. the
following morning, February 6, Roy changed the locks on
the doors. In consequence, employee Kane, who had been
opening up the store with his own key at 7:30 a.m., could
not begin work until 8 a.m. Also on February 6, Roy went
to the office of his then attorney, Samuel Thompson.
Thompson told Roy to refer DiFlumera to him, and said
that he was going to Miami "momentarily ." According to
Roy, Thompson told him not to discuss "labor things with
the people" and (in order to avoid charges of discrimination
against a particular person) not to lay off anyone unless he
laid off everyone and operated the business as a "family
business ." Still according to Roy, Thompson adhered to
this advice even after Roy told him that he had planned on
cutting back to two people unless he could get his
employees to work on a commission basis , and could not
physically operate the store with his family alone unless he
shut half the place down-which Thompson said he could
not do either. That evening, Roy removed from Respon-
dent's premises the daily sales records kept by Buscemi (see
infra), and told Buscemi to stop keeping them.
On February 9, when advised that Mrs. Roy wanted Roy
to telephone her, he told employees Cowles, Buscemi, and
Baxter that Roy had "problems," that if he took the Union
his wife would leave him, that if he did not take the Union
"you guys" would leave him, and that he "should pack it all
up and go to the islands . . . ought to just sell this place and
get out from under it." Cowles said, "If you're going to sell
would you at least give us a shot at buying it?" Roy agreed
to talk about the matter in his office. As the group walked
toward the office, Roy remarked, "You know, you guys
really gave me the shaft when you brought the Union in
here." Baxter asked, "What do you mean ... how did we
give you the shaft? . . . We're not trying to hurt you." Roy
replied that the employees should have come to him, and
they could have worked out their problems without the
Union. Roy further said, "I might as well sell the business
and get out of this thing." During an ensuing discussion, it
quickly transpired that the employees could not meet Roy's
asking price.12
On February 10, 1976, the Union filed a representation
petition with the Board, stating , inter alia, that it had
received no reply to its February 5 bargaining demand. By
letter dated February 9, attorney Thompson, on Respon-
12 My findings in this paragraph are based on the employees' mutually
corroborative and credited testimony . Roy testified that they discussed
selling the business to the employees . He was not asked whether the Union
was mentioned during this conversation.
13 My finding that the Ranch House conversation occurred on Wednes-
day, February 11, is based on Cowles' testimony Roy accepted the
suggestion of Respondent 's counsel that this conversation occurred during
the week of February 2, and testified that it took place about 9 p.m. on
Wednesday, which would have been February 4. Cowles testified that on
February 4, he worked "alone," that Union Representatives DiFlumera and
Cutshaw came in "that night" to see Roy, that they waited an hour or more,
and that Roy did not come in that night. Cutshaw testified that he had told
the employees that DiFlumera (who unexplamedly did not testify) and he
would "hopefully" visit the shop on February 4 "but we didn' t make it."
However, I regard Cowles' recollection as superior to Cutshaw's. According-
ly, I regard Cowles' testimony about the union representatives ' February 4
visit, which testimony was given in a context unrelated to the date of the
dent's behalf, refused to recognize the Union, on the
ground that Respondent questioned the Union's majority
and the appropriateness of the unit and rejected the idea
that authorization cards are a reliable method of determin-
ing whether the employees in fact want a bargaining agent.
D. Cowles' Separation
Cowles was the only employee who worked in the store
on Wednesday evening, February 11. Roy came in about 7
p.m. After the store closed that evening, Roy asked Cowles
to have supper with him. Cowles agreed to "shoot the
breeze," but said he could not stay very long. The two then
proceeded to a nearby restaurant, the Ranch House, where
Roy alone ordered supper.13
Cowles told Roy that the employees had not wanted to
cause him any harm by bringing in a union , that all they
wanted was a health plan and written specifications
regarding their dinner hours, their off days, and their
payday. Roy said, "You know, if you hadn't sided in with
those guys you'd have been the head man over there," that
Roy "could have got rid of the other three employees.
Cowles indicated that he did not want the others to lose
their jobs. Roy said that he had tried to get Buscemi to
agree to a basic salary plus commission, that Roy wished all
the salesmen were being paid on this basis , and that the
salaried salesmen were getting far too much money for the
work they were doing. Roy went on to say, "They're going
to be surprised Friday when I give them a layoff slip." 14
Roy testified that at this time he believed Baxter to be the
leader in the union movement . Roy credibly testified that
during the last 2 weeks in January he had unsuccessfully
tried to induce salesmen Buscemi and Baxter to agree to go
on a straight 8-percent commission . Under the arrangement
then proposed by Roy, these two employees would be
guaranteed to a "draw" equal to their previous salaries, but,
if at the end of 3 months their commission failed to equal
their "draw," Roy would not take anything back from them
but would have the option of laying them off.
On Thursday, February 12, Roy gave the Union's
February 10 representation petition to attorney Thompson.
According to Roy, the following conversation occurred:
Roy said that for financial reasons he wanted to cut back
on his help and work "with family." Thompson told him
that it was "very important" not to change his "count,"
because, if he did so, it would be misunderstood as
discrimination against a particular person because of his
Ranch House conversation , as providing some support for Cowles' credited
testimony regarding the date.
14 My findings as to the substance of the February II Cowles-Roy
conversation are based on Cowles' credited testimony and on credited
portions of Roy's testimony . Roy testified that he told Cowles that, if the
other salesmen agreed to be paid on a commission basis, Cowles' commission
rate would be increased, but that , if the employees did not so agree, Roy
would probably lay off Baxter and/or Buscemi the following Friday. As
indicated in the text, I believe Roy 's testimony that he said that he wished all
the salesmen were being paid partly on a commission basis. Moreover, Roy's
testimony to some extent corroborates Cowles' testimony that , during this
conversation and the February 13 interview discussed infra, Roy first
impliedly and then expressly asked Cowles to try to persuade the other
salesmen to accept a salary-plus-commission basis. For demeanor reasons, I
credit Cowles' testimony about the February II interview in its entirety, and
Roy's only to the extent indicated . However, the result herein would be the
same even if I credited Roy's testimony summarized in this footnote.
ROY'S CARPET LAND
union activities. Thompson said, however, that he could lay
off everybody, or shut down the whole building.
The next day, February 13, which was the regular payday
and Cowles' day off, Cowles came to the store for his
paycheck. Roy asked whether he had asked the other
employees to agree to accept, like Cowles (supra, fn. 2), a
basic salary plus commission . Cowles replied, "That's not
for me to discuss. That's between you and them." Roy
replied, "Well, if you didn't discuss it with them, I'm not
going to pay you unless they take the same thing." Roy then
went out the front door. Cowles told Susan Roy, who is
Roy's daughter and Respondent's treasurer, to tell Roy that
Cowles was going to have his paycheck even if he had to go
to the "Labor Board" to get it (see infra). Cowles said, "He's
got no right to hold up my paycheck because he didn't settle
with the other guys." Cowles then left the store.
About 5 p.m. that same day, Cowles telephoned Roy and
asked whether he could get his check right away. Roy told
him to come on over. When Cowles arrived, Roy said, "The
accountant says my overhead's too high, I've got too many
guys on the payroll . . . I've got to lay off somebody. I'm
coming down to the brass tacks. I just can't keep all this
overhead up." Cowles asked whether he was the one to be
laid off, and Roy replied that he was. Cowles then looked at
his check, which had been all made out when he arrived,
and noticed that 4 weeks' deductions (totaling about $94)
had been taken out, leaving a net pay of about $59. When
he resentfully asked about these deductions, Roy told him
that he was being laid off because of "all the trouble I'm
having with the Labor Board guy," referring to the
unemployment compensation office, "and all this union
stuff." Roy further said, "The lawyer told me I could take it
out once a month at the end of the month and I'd be
covered." Cowles asked, "How am I going to go home and
give this check to my wife? You wiped it out." Roy offered
to lend Cowles $100, but he refused. As Cowles went to the
door, Roy asked, "By the way, seeing as how you're leaving,
who started the Union?" Cowles said, "You did, a long time
ago," and walked out.
My findings as to the February 13 conversation between
Cowles and Roy are based on Cowles' credited testimony.
Roy testified that Cowles quit on the evening of February
13 because he was angry when he saw the 4 weeks'
deductions from his paycheck that day. For reasons
discussed infra, I credit Cowles.
E. The Layoff of Buscemi, Baxter, and Kane
On Saturday , February 14 , the day after Cowles' separa-
tion , the store was open as usual . The store was closed on
Sunday , February 15, as usual , and also on Monday,
February 16 , because of Washington's Birthday . When Roy
came in at 8 a.m. on February 17, he found that Respon-
dent had not yet received certain padding which it needed
before it could install any carpeting that day. Roy drove up
to the Springfield warehouse of Eastco , from which he had
ordered the padding . The Springfield personnel told him
that , because of Respondent's poor credit , it could not
deliver any padding to Respondent on credit without the
257
approval of Eastco's Boston office, which was not yet open.
At 9:30 a.m., Roy returned to the store without the
padding.
Employee Kane and Company Vice President Susan Roy
had gone with Roy to the warehouse in another vehicle.
When the three returned to the store, Buscemi was waiting
in front of the door. Roy unlocked the door and Kane
started to turn on the lights. Roy said that because of the
"hornet's nest" the employees had created by joining the
Union, causing him extensive legal fees from the unioniza-
tion campaign and lack of credit which had prevented him
from obtaining padding that morning, he was laying off all
the employees.15 Buscemi then said that he wanted his
check and his layoff slip. Roy said that he would have them
made out and would send them to the employees . Buscemi
said that he wanted his now. Buscemi also telephoned
employee Baxter that the three employees had been laid off,
and that Buscemi would bring Baxter his check if he would
tell Roy to give it to Buscemi . Baxter did so. Roy then made
out all three checks, gave Kane his check, and gave
Buscemi the remaining checks. Roy said that his accoun-
tant had the layoff slips. The checks to Baxter and Kane,
covered their full salary for the current week.
Kane and Buscemi then went to Baxter's house and gave
him his check. Buscemi told Baxter that Roy had said not to
open up the store because "You guys have stirred up . . . a
hornet's nest with this union thing and you're laid off." The
three employees then went to the office of Roy's accountant
and asked for their layoff slips, but the accountant knew
nothing about them. Then, the employees went to the
unemployment compensation office. Roy kept the shop
open that day, and later that afternoon went back to Eastco
and got some padding.
Cowles had tried to reach Union Representative Cutshaw
on February 14 about Cowles' February 13 separation, but
they were unable to speak with each other until February
17. Cowles told Cutshaw that he had gone into work and
been laid off, and that Roy had given him a "number of
reasons . . . that [Roy] couldn't afford him and that
because of the union this had caused a number of
problems." Also on February 17, Buscemi and Kane
telephoned Cutshaw separately. Each of them said that,
that morning, Roy had told them that they had created
some problems for him and that he was letting them go
because of the Union. Later that day, all three employees
came down to Cutshaw' s office . Cutshaw credibly testified
that one of the three who had been laid off on February 17,
he could not remember which, told him that Roy had said
that Cutshaw created this "hornet's nest" for Roy, that he
had problems with the IRS and with his wife and the
Union, and that Roy was letting the employees go because
of the Union. On the following day, February 18, the Union
filed its initial charge herein, alleging that Respondent had
discharged its employees for their activity on behalf of the
Union and because they had filed a representation petition
with the Board . This charge was not received by Respon-
dent until February 19.
Roy testified that, on February 18, he received a
telephone call from a man who identified himself as Jeffrey
15 My findings about what Roy said on this occasion are based on a
composite of Buscemi's and Kane's testimony. Susan Roy did not testify
Roy's version is discussed infra
258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Jankot, a Board employee who was at one point assigned to
handle the representation case . According to Roy, the
following conversation occurred : His caller asked what
Roy was doing. Roy replied that he was up to his ears in
trouble, his attorney was away, and Roy had laid off
everybody. The caller asked why Roy had laid off every-
body. Roy replied that his attorney had told him, "You
cannot lay off-you cannot change the count." The caller
asked whether Roy could run the place by himself. Roy
replied that he could not, but could "survive" with two
people. The caller then said , "Well, in that case , call back
the two people with the most seniority." The caller asked
about pay. Roy replied that the employees had not yet lost
any pay. The caller said to call the two back right away, and
the result would be in essence the same as if he had laid off
the employees with the least seniority.
On the evening of February 19, Susan Roy asked Kane to
return to work. On the morning of February 20, he did so.
Baxter was not at his home on February 19. On February
20, Roy telephoned him and said, "I would like you and
Dave [Kane] to comeback to work. . . . It doesn't have to
be you and Dave.... My position is that I can't afford to
have the four of you. That I can have any two of you, and
those two could be Phil [Buscemi ] and Pete [Cowles]...."
Roy further said that "it could be any combination, but he
thought that he needed Dave because he needed [David] to
run the forklift truck, and he needed one salesman, which
could have been one of the three of [them], and he thought
that since Dave and [Baxter ] had the most seniority, that
unless [they] wanted to be martyrs, [they] should be the
ones that should go back ." Baxter returned to work on
February 21. Buscemi and Cowles had less seniority than
Kane and Baxter. Roy testified that at this time he would
rather have recalled Buscemi instead of Baxter because Roy
believed that Baxter was the "troublemaker" who had
brought in the Union.
About noon on February 25, Cutshaw, Buscemi , Cowles,
and Union Business Agent Scott Macey came to the store
with the hope that they could talk to Roy. Baxter was the
only one present in the store. Cutshaw said that he was
there to see Roy about a "recognition agreement," and, if
Roy refused, Cutshaw was going to set up a picket line in
front of the store . After a few minutes , Kane and Susan
Roy, who had both been out buying lunch for all three shop
personnel, returned to the store with the three lunches.
Kane went out to the union representatives ' car, which was
parked in front of the store, and began to eat his lunch in
the car . 18 Cutshaw walked into the store, where Baxter and
Susan Roy had taken their lunches, and told her that they
were going to begin to picket because of the unfair labor
practices in which Buscemi was let go and not taken back,
and that they wanted to talk to Roy. She said that he was
out of town . Cutshaw then told Baxter, "We're going out to
picket. . . . Are you joining us?" Baxter replied that he was
first going to finish waiting on his customer . Cowles,
Buscemi, and the two union representatives then began to
picket the store with signs saying, "On Strike." After
waiting on his customer , Baxter left the store with his lunch,
and joined Kane in the car. A few minutes later, Susan Roy
16 The weather was unseasonably warm.
i1 This charge , which alleged 8(b)(IXA) violations, was later dismissed.
turned the lights off, locked the door, and, her lunch still in
her hand, went to her car and drove off. After finishing
lunch, Kane and Baxter joined the pickets.
After picketing for an hour or two, the pickets arranged
for periodic checks to see if the store had reopened for
business and, therefore, picketing should be resumed. The
union representatives and the employees then drove off.
On the following day, Cutshaw, Baxter, and probably
others drove up to the store. It was closed, no customers
were there, and the inside of the windows had been covered
with wrapping paper. They nonetheless picketed until early
afternoon. The next day, February 20, the store was still
closed and papered up. They picketed for about 2 hours.
On February 28, Baxter and Kane came to the store for
their paychecks. The windows were still papered over, but
the door was open. Roy told them that he and his father
were going to Israel for a couple of weeks and that he would
like Baxter and Kane to return to work. They replied that
they would like to wait and see what happened at the
"hearing" on the Union's representation petition.
This "hearing" (in fact, a conference) was held on March
2. The petition could not be processed because of a charge
filed that day by Respondent herein against the Union.17 A
day or so later, Roy telephoned Baxter and asked whether
he and Kane had decided to come back to work. They
returned a few days later.18
By letter dated May 4 the Union requested withdrawal of
its representation petition. By letter dated May 7 the
Regional Director advised Respondent that he had ap-
proved the withdrawal without prejudice.
At the time of the July 1976 hearing, Baxter was still
working for Respondent. Kane was laid off on June 25.
Respondent told him that he was being laid off for lack of
work, and the complaint does not allege otherwise. In
March 1976, Respondent rehired Roy's son, who had
previously worked for Respondent, in order to enable him
to get out of jail. He was working 50 hours a week at the
time of the July hearing. At the time of the hearing,
Respondent employed no salesmen on a commission basis,
and the only nights it was open were Thursday and Friday.
F. Analysis and Conclusions
1. The alleged independent 8(a)(1) violations
I fmd, in agreement with the General Counsel, that
Respondent violated Section 8(a)(1) of the Act (1) on
February 5, when Company President Roy said in the
employees' presence, upon being advised that the Union
represented a majority and wanted to discuss the matter,
that Mrs. Roy had "better shut the door, lock the place up,
were shutting down"; (2) on February 13, when Roy told
employee Cowles that he was being laid off partly because
of "all this union stuff'; (3) on February 17, when Roy told
employees Buscemi and Kane, upon laying them and
Baxter off, that he was laying them off because of the
"hornet's nest" the employees had created, as to legal
expenses and lack of credit, by joining the Union; (4) when
Roy asked Cowles, immediately after his February 13
termination, who started the Union; and (5) on February 5,
18 Because of health problems of Roy's mother, at the very last minute
Roy decided not to go to Israel.
ROY'S CARPET LAND
when Roy seized the union authorization cards from Union
Representative DiFlumera and, in the employees ' presence,
read the employee signatures thereon . In fording that Roy's
interrogation of Cowles violated the Act, I note that such
interrogation immediately followed Roy 's unlawful asser-
tion that Cowles was being terminated because of "all this
union stuff," that Respondent had no legitimate reason for
seeking the identity of the employee who started the Union,
and that Cowles gave an evasive reply. In fording that
Respondent violated the Act by seizing and inspecting the
employees ' union cards, I note that Roy grabbed them after
the Union offered to prove its majority through an
impartial third party; that when inspecting them he
deprecatingly singled out the card signed by Cowles and
later selected him as the first employee to be laid off for
union activity ; and that , just before seizing them , Roy had
threatened to close down the shop because the employees
had joined the Union.19
In view of the factual context, I also agree with the
General Counsel that Respondent violated Section 8(a)(l)
when Roy told the employees, on February 9, that they had
given him "the shaft" by going to the Union rather than
talking to him about their problems . I regard this denigra-
tion of their union activity as constituting an implied threat
of retaliation therefor, since Roy made this remark while
discussing the possible sale of Respondent 's business, and a
few days after threatening to shut down the shop because
the Union had organized it.20
2. The alleged unlawful terminations
a. Whether Cowles' separation was a layoff or a
quit
As previously noted, Roy denied Cowles' testimony that
on February 13 Roy laid off Cowles, and testified, instead,
that on that date Cowles quit because of anger at the 4
weeks' deductions from the paycheck received that day. In
contending that I should credit Cowles and discredit Roy,
the General Counsel relies on, inter alia, the following
evidence : (1) Cowles' paycheck , which was admittedly
ready when he came to pick it up on Friday, February 13,
included Cowles' commission on carpeting which had been
delivered and paid for on Thursday, February 12, even
19 Employee Baxter credibly testified that he particularly remembered
Roy's taking the cards from DiFlumera because, when the employees signed
cards, they had been told that the Employer was not supposed to know who
signed the cards; that if the Union 's representative status was challenged the
signatures would be checked by a policeman , a priest, or an arbitrator; and
that the cards were "secretive" and "a confidentiality."
20 See Ram, Inc., 218 NLRB 430, 433 ( 1975); Mademoiselle Shoppe, Inc.,
199 NLRB 983 , 987 (1972).
21 When asked on cross-examination, "But you laid off four men, didn't
you?" Roy replied , "I laid off four men. I laid off three men and Mr. Cowles
quit."
22 Cutshaw 's testimony about Cowles ' picketing is undemed , although the
picketing was observed by Company Treasurer Susan Roy , who is Roy's
daughter.
23 The General Counsel also seeks to make something of Roy's failure to
recall Cowles after learning that Cowles at least thought he had been
terminated . However , such conduct by Roy is not inconsistent with
Respondent 's basic position that by the time Roy consulted attorney
Thompson on February 6 Roy had decided that for economic reasons he
wanted to reduce Respondent's work force.
24 Although Roy admittedly laid off three employees a few days later,
these comprised his entire remaining work force and, according to Roy,
259
though a Friday paycheck usually covered items which the.
customers had paid for during the week ending the
preceding Wednesday ; Roy had seen a preliminary draft of
Cowles' commission statement that week (supra, fn. 2) but
his paychecks were based on commission statements
prepared by Buscemi, not Roy; (2) all the taxes which
should have been taken out previously were deducted from
that paycheck , consequently diminishing it by 60 percent;
however, Cowles had previously asked Roy to deduct
payroll taxes ; (3) Baxter testified without contradiction that
when telling him after the February 17 layoffs that any two
employees could return to work , Roy mentioned Cowles by
name and did not distinguish between him and the three
who were admittedly laid off; 21 (4) Cowles participated
with the other employees in picketing the store on February
25; 22 and (5) Cowles had a family to support , was being
harried by creditors which included the Internal Revenue
Service, and badly needed a job. Some further support for
Cowles' version of the February 13 conversation is provid-
ed by Cutshaw 's testimony that , on February 17, Cowles
said that he had been laid off and impliedly requested the
Union's assistance in getting his job back ; the Union filed
its first charge herein on the following day.23 In urging me
to credit Roy, Respondent relies on ( 1) Roy's undenied
testimony that immediately after the February 13 interview
he told Buscemi that Cowles had quit; (2) Cutshaw's
February 25 statement to Susan Roy that the Union was
picketing "because of [Respondent 's ] unfair labor practices
by letting Phil Buscemi go," without mentioning
Cowles ; (3) Cowles' initial denial (promptly retracted) of a
debt owed Respondent upon the bankruptcy of a corpora-
tion owned by Cowles ; (4) the alleged unlikelihood that
Roy, even though he had been a business acquaintance of
Cowles' for some years, would offer to lend him $100
immediately after laying him off because he had joined the
Union ; (5) Roy's testimony that on February 6 and 10
attorney Thompson advised him that, because of the
Union's presence, he should not lay off any individuals; 24
and (6) Cowles' refusal to authorize Roy to obtain Cowles'
unemployment compensation records from the Massachu-
setts Division of Employment Security , which will not
release them without the employee 's consent.25 From this
last item, Respondent tenders the inference that these
Thompson had told him that he could lay off his entire employee staff.
According to Roy, his later recall of the two senior employees occurred after
a Board agent had told him that he could lay off in order of seniority.
25 Ch . 66A, Sec. 2, of the Massachusetts general laws ("Fair Information
Practices," St. 1975 , c.776 , sec. 1), provides, Inter alga
Sec. 2:
Every agency maintaining a personal data system shall:
(c) not allow any ... individual not employed by the holding agency
to have access to personal data unless such access is authorized by
statute or regulation, or is approved by the holding agency and by the
data subject whose personal data is sought . .
(Continued)
260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
records show a change from the "quit" entry admittedly
made by Roy to a "mutual consent" entry which a division
representative suggested to Roy as a means of entitling
Cowles to unemployment benefits . Particularly in view of
Roy's testimony that he did not accede to this proposed
change until after being assured that it would not affect his
unemployment insurance taxes, I cannot perceive how this
proposed inference would tend to show that Cowles quit.26
After weighing these cold record considerations, Roy's
unreliability in connection with his explanation of the
admitted layoffs (infra), and demeanor considerations
(which heavily favor Cowles), I credit Cowles ' version of his
termination interview and related matters , as summarized
supra.
b. Whether the layoffs violated the Act
(1) The General Counsel's prima facie case
Three days after all of Respondent's employees had
signed union cards, the Union advised Roy of its majority
status and asked him to sit down and discuss the matter.
Roy's response was a threat to shut down the shop and,
according to him, the comment, "Oh, shit, I need another
problem like this." When the union representatives offered
to prove its majority status by means of a card check
conducted by an impartial third party, Roy grabbed the
authorization cards from a union representative, read off
the names, and, when reaching Cowles' card, threw it on the
floor and said that he was not an employee. After a union
representative cautioned Roy to watch what he was saying
because he was violating certain laws, Roy said that he
thought something could be worked out without any
problems. However, after receiving the Union's demand
letter and letter of recognition, Roy said that his wife was
threatening to leave him if he recognized the Union, and
asked the union representatives to wait a year. When told
that the Union wanted immediate recognition, Roy prom-
ised that he would give his decision by telephone the next
morning . He did not call, but did change the locks on the
shop doors, remove the sales records kept by Buscemi, and
tell him not to keep any more . Three days later, he told
Respondent's three salesmen that if he took the Union his
wife would leave him, that if he did not take the Union
..you guys" would leave him, and that he "should pack it all
up and go to the islands . . . ought to just sell this place and
get out from under it." After agreeing to give the employees
a chance to buy the business, he remarked that they had
"really" given him "the shaft" when they brought in the
Union, that the employees should have come to him, and
that they could have worked out their problems without the
Union. Roy further said, "I might as well sell the business
and get out of this thing." Respondent's refusal to recognize
the Union without an election was written that same day.
Two days later, Roy, who then mistakenly believed
Baxter to be the union leader, told Cowles (the real one)
(k) maintain procedures to ensure that no personal data are made
available from its personal data systems in response to a demand from
data made by means of compulsory legal process, unless the data subject
has been notified of such demand in reasonable time that he may seek to
have the process quashed.
n Respondent also points to Cowles' testimony that when laying him off
Roy initially gave as a reason that Respondent had too high an overhead and
that if he "hadn't sided with those guys" in seeking union
representation he would have been the "head man." He
asked Cowles to induce the other salesmen to agree to
accept a basic salary plus commission. On the regular
payday 2 days later, and after receiving the Union's
representation petition, Roy initially refused to give Cowles
his paycheck because he had not asked the other employees
to agree to this new arrangement. Cowles said that he was
going to get his paycheck even if he had to go to the
Massachusetts Unemployment Compensation Board to get
it. Later that day, Roy gave Cowles his final paycheck and
told him that he was being laid off because Respondent's
accountant had told Roy that his overhead was too high
and he had too many people on the payroll. When Cowles
resentfully asked why 4 weeks' tax deductions had been
taken from his final check, diminishing it by 60 percent,
Roy told him that he was being laid off because of "all the
trouble I'm having with the Labor Board guy," i.e., the
Unemployment Compensation office, "and all this union
stuff. . . . The lawyer told me I could take it out once a
month at the end of the month and I'd be covered." As
Cowles left, Roy asked, "Seeing as how you're leaving, who
started the Union?" On the second working day thereafter,
Roy laid off the remaining employees, and gave as a reason
the "hornet's nest" the employees had created by joining
the Union, causing him extensive legal fees from the
unionization campaign and lack of credit which had
prevented him from obtaining padding that morning.
Roy testified that, on February 18, he learned that his
attorney had erred in allegedly telling him that, because of
the Union's bargaining demand, he could not effect any
layoffs of fewer than his entire staff. According to Roy, he
was advised on February 18 that he could effect layoffs
based on seniority. Then, Roy called back the two senior
employees (Baxter and Kane), although Roy would admit-
tedly have preferred Buscemi to Baxter because Roy still
believed that Baxter was the "troublemaker" who had
brought in the Union. Thereafter, the shop was open only 2
nights a week, although most of its weekday retail sales are
"closed" during the evening hours, and the shop had
previously been open 5 or 6 nights a week.
The foregoing evidence strongly points to the conclusion,
at least prima facie, that Respondent laid off these four
employees at least partly to discourage union activity.
(2) Respondent's explanations for the February 17
layoffs
While not appearing to contend that the February 17
layoffs were wholly unrelated to the Union's advent,
Respondent contends that the only legally significant
motivations were Roy's alleged belief that Respondent was
in financial difficulties and Roy's emotional problems
related largely, although not entirely, to such alleged
financial difficulties. As shown, infra, there is very little
too many employees on the payroll. However, this was not an explanation
given by Cowles; rather, it was an explanation given by Roy, who is not
always given to logical statements (see, infra). In any event, even when
Cowles was being paid on a straight commission basis, maintaining him on
the payroll imposed on Respondent such expenses as social security and
unemployment compensation taxes , as well as commissions paid to him for
sales that might have been made anyway by the salaried salesmen.
ROY'S CARPET LAND
evidence about what Respondent's financial position really
was. In connection with Respondent's economic defense,
the record shows as follows:
1. About June 1975, Joe Tessier, a relative of Roy's who
had managerial experience in the carpet business, joined
the business. Roy transferred some stock to Tessier in
anticipation of a $50,000 cash payment from Tessier, which
was never made. About October 1975, Tessier agreed to
leave the business and (inferentially) to surrender his stock,
in return for $25,000 worth of carpet and $10,000 in cash. In
connection with the Tessier matter, either Roy or Respon-
dent signed notes to Tessier's attorney for $10,000 in legal
fees.
2. Roy testified about certain loans from members of
his family. At one point he testified that, as of February
1976, "my father-in-law had died a couple years before and
I borrowed about $22,000 from relatives." Elsewhere, he
testified that about January 1976 "I had to borrow $6,000
from my mother-in-law," and that as of early January
$17,000 from his mother-in-law and other family members
had been put into the business. Respondent failed to
produce any records regarding whether such loans totaled
$17,000, $45,000, or somewhere in between; whether any of
them had been repaid at any material time; and whether the
debtor was Respondent or Roy personally.
3. Roy credibly testified that sometime in January, his
insurance company threatened to cancel his workmen's
compensation insurance and his insurance on the contents
of the building because he had failed for several weeks to
comply with his agreement to pay off at $200 a week a
$6,000 debt he had owed it for some time.27
4. Roy credibly testified that on various occasions, the
date of which he did not give, he asked his employees to
deposit their paychecks in their own banks instead of
cashing them in the bank where Respondent kept its
account.
5. Roy credibly testified that as of mid-February he was
slow in paying almost all his creditors. He further testified
that, before Tessier joined the business in June 1975 and
induced Roy to overdraw Respondent's account regularly,
"If I didn't have the money, I wouldn't pay the bills."
6. General Counsel's Exhibit 12 states that Respondent
had about $15,000 in sales between October 20 and 31,
1975; $32,000 in November 1975; $30,000 in December
1975; $27,000 in January; and $7,800 for the first 4 business
days in February. (Assuming that Respondent had oper-
ated throughout February and its sales had continued at the
same level, its February sales would have totaled about
$45,000.) General Counsel's Exhibit 12 consists of sales
records kept on a daily basis by employee Buscemi, whose
duties (according to Roy) included keeping some of
Respondent's records. Buscemi testified, in Roy's presence,
that Buscemi used working hours to prepare these records.
In addition, Buscemi testified that, after checking with Roy,
he supplied these records in November 1975 to a represen-
tative of the Massachusetts sales tax office. Further,
Buscemi, Cowles, and Baxter all testified that they had seen
Roy look at these records. Roy testified that he had never
27 On March 1, the insurance company did cancel his insurance, although
Roy's testimony suggests that this action may have been for reasons not
adverted to in the record. This cancellation was wholly effective for about 3
261
kept or seen any records of his total sales for a particular
month. He testified, however, that he "imagine[d]" Busce-
mi used General Counsel's Exhibit 12 to compute the sales
tax paid by Respondent. For demeanor reasons and in view
of the probabilities of the situation, I discredit Roy's
testimony that he never saw General Counsel's Exhibit 12,
and credit the foregoing testimony by Buscemi, Cowles,
and Baxter. Moreover, Buscemi credibly testified that he
kept such records partly in order to make sure that
Respondent complied with its agreement to pay him a
commission on total sales if they exceeded a certain figure.
Accordingly, I adhere to my hearing action in receiving
General Counsel's Exhibit 12 as a business record. See Rule
803(6) of the Federal Rules of Evidence.
7. Roy credibly testified that as of early February
Respondent owed the Roys, as landlords, back rentals
totaling $18,000. He credibly testified that, instead of
paying the $2,500 monthly rental called for by the lease,
Respondent had been paying, directly to the bank which
held the mortgage on the building, the undisclosed monthly
amounts which the Roys owed that bank in principal,
interest, and taxes. He further credibly testified that the
Roys purchased the building in a "real distressed market";
that the building was being offered at $290,000; that the
Roys paid $125,000 and put in $17,000 in needed improve-
ments ; and that he thought its February 1976 value
exceeded $150,000.
8. Roy credibly testified that on February 5, when the
union representatives came into the shop, he and Mrs. Roy
were in the office discussing his proposal, which she
rejected, to remortgage their jointly owned home to obtain
$30,000 to put into the business.
9. Roy testified that since June 1975, in response to
Tessier's assertion that constant overdrafts were an "ac-
cepted practice," Respondent had regularly been over-
drawn at its bank by $2,000. Roy further testified that the
records kept at the office of Respondent's accountant
showed that as of December 31 Respondent was overdrawn
by $3,000. Respondent's check ledger states that as of
January 2 Respondent was overdrawn by about $1,360. In
addition, Roy testified that during a 4-week period which
began sometime in 1976, and ended on or before Buscemi's
February 17 layoff, Buscemi came in at least once or twice
a week and said that Respondent was overdrawn by $3,000
or $4,000. Respondent's check ledger shows that, on
January 9 and 10, Respondent's account ranged between a
$2,700 positive balance and an $8,300 overdraft. On
January 9, Roy made a personal loan to Respondent in
order to cover Respondent's $8,600 check to him in late
December 1975 to cover his unpaid 1975 salary (see infra,
par. 10). As of January 12, Respondent's account contained
over $6,000. January 9 and 10 aside, Respondent's check
ledger shows that on the approximately 38 business days
between January 2 and February 17, 1976, Respondent was
never overdrawn by as much as $4,000, was overdrawn by
$3,000 or more on 2 days (January 30 and February 10),
days, after which Roy regamed workmen's compensation insurance by
carpeting a building for the insurance company.
262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and after January 9 was overdrawn on 3 days (January 30
and February 10 and 16, by $ 160).28
10. Before mid-1975, Respondent's "book work" had
been performed by an unidentified nonemployee who was
not a certified public accountant . In mid- 1975, Tessier
arranged for the professional services of a certified public
accountant , Jack Smith . Roy credibly testified that, before
retaining Smith , Respondent had been putting its business
records in cardboard boxes which were piled up in three
different offices and in a disorganized fashion . Employee
Buscemi credibly testified that, between early May 1975
(when he began to work for Respondent) and September
1975 (when Tessier left), Buscemi had never seen any sales
records kept by Respondent. Roy credibly testified that
Smith had threatened to withdraw as Respondent's accoun-
tant unless Respondent put its records into better order.
Roy further credibly testified that, at the time of the hearing
in July 1976, Respondent had not yet filed its income tax
return for the calendar year 1975.
Roy testified that, as of the last week in December 1975,
he had failed to collect from Respondent $8,600 which it
owed him in salary as Respondent 's president . He further
testified on direct examination that the last week in
December, his accountant told him "to come into the office
for the purpose of taking this money out of the corporation
for personal income so I wouldn 't have to pay taxes on it
twice . . . the check had to pass before the end of the
[fiscal ] year. That is, I was told if I didn't take my backpay
before the end of the year then I would have to pay
corporation taxes on it. Then I'd have to pay individual
taxes when I took the money." Roy went on to testify on
direct examination that, when he came to Smith 's office,
Smith or an associate accountant told Roy "that as of right
now I was on a disaster path and that right now it was just a
matter of down the road I would be bankrupt if I did not go
ahead and get the cost of my operation in line with my
sales. . . . That if I continued on the path that I was going,
I had another three months in business ." Still on direct
examination , Roy testified that he said he thought "things
were going good ," and the accountant replied , "You better
wake up, because you're going down the drain."
On cross-examination , Roy testified as follows:
Q. [By Mr. Gardiner] But you did take a large
amount of money out of the business in late December
1975, didn't you? Paid to you personally?
A. Right, for the purpose of taking the money out
of the corporation so I would not have to pay corpora-
tion taxes.
Q. I don't understand that. You said not the-not
to have to pay corporation taxes, is that correct?
A. Whatever it was, it is better to take-yes, if there
was a profit, at the end of the year, it certainly would be
28 Respondent's counsel has attached to his brief a purported copy of a
subpena requirin d to roduce, on the first day of the hearing, inter alga, "All
cancelled checksg[and J bank statements of [Respondent I for the period of
January 1, 1975 to present." Under the circumstances , I reject the General
Counsel's efforts to nummize any weight attached to the check ledger in
evidence by pointing out that Respondent failed to offer into evidence its
records of another checking account maintained by it for the purpose of
paying taxes
29 At no point did Roy testify that his accountant referred to tax
better to pay taxes on it once than twice. And I believe
this is a-most people working for a corporation do
take a paycheck.
Q. And you don't want to pay corporate taxes and
then pay personal income taxes if you don't have to,
right?
A. Right.
Q. And you don't pay corporate taxes unless you
make a corporate profit, do you?
A. Correct.
Q. And at the end of December 1975, your accoun-
tant said you'd better take some money out to avoid
double taxation?
A. No, he said that if I did not-they did not know
what the outcome would be, at that particular time, but
if I did not take it out before the end of the year I could
not take it out after the 31st of the year. If all I took was
$10,000 out on December 31st, I'd have no way of
taking out after December 31st, unless I paid taxes on it
first and then paid personal taxes on it second.29
Roy testified that, because Respondent did not in late
December 1975 have enough money in its account to cover
his $8,600 salary balance, "I wrote the checks and took
them personally. Then after the first of the month I moved
the money back to the company." He returned the money
to Respondent by obtaining from the Third National Bank
a $10,000 personal loan for which he used his personal
savings account passbook as security, and lending the
amount he received (about $9,800, because the bank had
prededucted interest) to Respondent. A few weeks later,
Respondent repaid this loan by a check dated February 26,
1976, to Roy and the Third National Bank. Roy explained
that this loan was repaid because he needed to retrieve his
savings passbook from the bank's vault for "another
transaction." After regaining control of his savings pass-
book, he took $6,000 from his savings account and loaned it
to Respondent. On March 1, 1976, Company Vice Presi-
dent Susan Roy, Roy's daughter, obtained a $3,000 loan
from her bank, using her savings passbook as collateral,
and lent that sum to Respondent.
11. Roy further testified that sometime between Janu-
ary 15 and 29 he again met with his accountant, who
reviewed with him "that document there"-referring to
Respondent's Exhibit 1. The last two pages of this exhibit
purport to be Respondent's balance sheet and income
statement for the calendar year 1975, subject to an
accountant's disclaimer dated July 28, 1976, the day before
the hearing.30 Roy testified that he first saw the particular
sheets of paper constituting this exhibit on July 28, 1976,
when he obtained them from his accountant. He testified
that this purported balance sheet showed a "$16,000 plus"
loss "but they told me it would be greater than that before
carryback or carry-forward considerations, or otherwise mention such
considerations
30 "The accompanying balance sheet of Roy's Carpetland, Inc., as of
December 31, 1975 , and the related statement of income for the year then
ended were not audited by us and accordingly we do not express an opinion
on them . These financial statements are incomplete presentations because
they do not include all the disclosures required by generally accepted
accounting principles , including statements of retained earnings and changes
in financial position; they should not be used by anyone who is not a
member of the company's management."
ROY'S CARPET LAND
I'm finished." The document in fact sets forth a loss of
$14,993.31. On voir dire by the General Counsel, Roy
testified that , when he received on July 28 the page of
Respondent 's Exhibit 1 which purports to be a balance
sheet, the accounting firm "said this is a copy of what they
showed me [in January] . . . I have to assume that they,
being CPA's, that they are telling the truth. I have no reason
to feel that they changed it. . . . The CPA tells me this is a
copy of what I saw." He had previously testified, however,
that when he met with his accountant in January the
accountant did not give him a "dollar/cents figure," about
how much he was losing, but merely told him that his rent,
telephone expenses , and salary expenses were dispropor-
tionately high and his "net profit was approximately 32
percent . I was told that it should be near 40 percent... .
That is before expenses ." The document states that "gross
profit" was 32.4 percent. Still on voir dire, when asked
whether he saw in January that the paper contained certain
scratched out numbers with different numbers beside them
(as is true with respect to the purported balance sheet in
Resp . Exh. 1), he replied, "I was not aware of it. I was
informed that it was there by the CPA . . . there was no
scratch-outs on the one that I-on the ones that I saw . . . I
don't even know what those figures mean ." Thereafter, on
further direct examination , he testified that the purported
income statement in Respondent 's Exhibit 1 "is the exact
copy of what I saw in January." When asked whether the
purported balance sheet in Respondent 's Exhibit 1 was the
same as the one in January, while looking at the document,
he described the handwritten changes thereon . The record
then shows as follows:
Q. [By Mr. Costa] But other than that, the sheet
was the same?
A. I would have to assume so, yes.
Q. No, I don't want .. .
A. Yes, yes, this page was exact . This is the one that
I drew my - on number R(l)(c) [the purported income
statement ] is the only paper that really interests me in
January. Was, I was in trouble this-it was supposedly
to show me if I used it properly, to show me how to get
out trouble.
Roy further testified that in late December his accoun-
tant told him that he "should not be paying over 8 percent
in the salary column . I was up in the 20-something
percent." Respondent 's Exhibit I states that "Salaries"
were 11.8 percent of total sales.31
12. Respondent 's records show that Roy did not draw
his salary from Respondent during the first 4 weeks of 1976,
or during 5 of the remaining weeks in the first quarter.32
Thereafter, and until the July 1976 hearing, he drew his
$300 salary every week.
As to his emotional problems, Roy credibly testified that
he was exceedingly upset by the fact that, at an unspecified
31 This document further states that "Officer salary" was 5.2 percent of
total sales, and that "Auto expense ," "Group insurance," and "Commis-
sions" were .7 percent, .3 percent, and .6 percent of total sales, respectively.
32 During 2 of these 5 weeks , the employees were on strike.
33 Sears, Roebuck & Co., 224 NLRB 558 (1976) (ALJD, II, C, 1, (b));
N. L. R. B. v. Fibers International Corporation, 439 F.2d 1311, 1312, 1315 (C.A.
I, 1971); Sweeney & Company, Incorporatedv. N.LR B., 437 F.2d 1127, 1133
(C A. 5).
263
date prior to February 5, his son had been jailed on a drug
abuse charge. Roy also credibly testified that, when the
union representatives first came to the shop on February 5,
he and his wife were "yelling and screaming" at each other
because of the business losses from Tessier , who was Roy's
relative ; because Roy had not taken his salary from the
business for several weeks ; because of Roy's January loan
to the business ; and because of Roy's request that the Roys'
home be remortgaged so he could put $30 ,000 into the
business . He further testified that, as of that date , he and his
wife were on the verge of divorce. Mrs. Roy's previously
described conduct during and immediately after the union
representatives' second visit to the shop on February 5
shows that she strongly opposed the Union. As previously
found, in attempting on February 5 to put off the Union's
bargaining demand and explaining on February 9 a desire
to sell the shop, Roy said that she would leave him if he
recognized the Union.
(3) Conclusions
The General Counsel has met his burden of proof if he
can show that the four employees would not have been laid
off but for Respondent 's union animus33 As Respondent
does not appear seriously to question it, Cowles' testimony
(if credited, as it has been) effects such a showing as to him.
Among the specific reasons which Roy then tendered for
Cowles' termination was "all this union stuff." While Roy
also referred to the Massachusetts Unemployment Com-
pensation Board's statements to Cowles that Respondent
had to make the legally required tax deductions from his
paycheck, the modesty of the inconvenience and expense
imposed by this requirement leads me to conclude that this
consideration played little part in the termination deci-
sion.34 Moreover, while Roy also gave as a reason his
accountant's alleged statement that Respondent had to cut
down on "overhead," Cowles' employment on a commis-
sion-only basis involved less overhead than the employ-
ment of anyone else on the payroll . I conclude that Cowles
would not have been laid off but for Respondent's union
animus and, therefore, that his layoff violated Section
8(a)(3) and (1) of the Act.
I reach a like conclusion with respect to the February 17
layoffs . Such a conclusion is strongly pointed to , if indeed
not compelled, by Buscemi's and Kane's credited testimony
that, when laying off all three, Roy said that he was laying
them off because of the "hornet's nest" the employees had
created by joining the Union, causing him extensive legal
fees from the unionization campaign and lack of credit
which had prevented him from obtaining padding that
morning . This inference from such testimony is at least
corroborated, if indeed not independently established, by
Roy's testimony. He testified that, when effecting the
layoffs, he told Buscemi and Kane that this problem could
have been worked out without a union , asked them why
34 However, I do not agree with the General Counsel that Cowles was
engaged in "concerted" activity when he raised the deduction question with
the unemployment compensation board . Unlike the safety improvements
requested in Alleluia Cushion Co., Inc., 221 NLRB 999 (1975) (cited by the
General Counsel), the commencement of proper deductions from Cowles'
paycheck would not benefit other employees, who so far as the record shows
were having proper deductions made.
264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they had not come to him , and said, "You bastards gave me
the shaft.... I'm up to my ears in trouble and instead of
trying to help me out, I feel that you guys are working
against me ." Roy then went on to testify that he "was not
speaking in regards to the union situation as such . Although
it was part of it." While Roy's version of the layoff
interview does indicate that his action was motivated partly
by his family problems , such family problems included his
wife's resentment of the Union and, to that extent,
constituted in themselves an unlawful motive for the
layoffs . Moreover, even if accepted uncritically , Respon-
dent's evidence would show that its alleged economic
difficulties had begun months before the layoffs . Further,
Roy testified that on February 5 he told the union
representatives that he thought business was going to pick
up; he testified that in January and February his sales were
going up; 35 he further testified that business usually
improves before Easter in the spring; and in January he
told employee Buscemi that business had started to pick up.
Furthermore , Roy testified that his October 1975 inventory
was $125 ,000 and that in early February, when he was
discussing the sale of the business to the employees , he told
them that the inventory was worth $180,000.36
Furthermore , I conclude that Roy's testimony about
Respondent's financial difficulties is not entitled to uncriti-
cal acceptance. Thus , Roy was clearly untruthful in
testifying that in late December his accountant told him
that he was "going down the drain" and at the same time
advised him to draw his salary before the end of the year so
that Respondent would not have to pay corporate income
taxes on it. His complicated and successful efforts to draw
his salary before the end of 1975 lead me to discredit his
testimony about his accountant's alleged pessimistic reports
in late December , and to infer that Roy believed Respon-
dent's 1975 operations might well show a profit . Further, I
do not believe his testimony that the balance sheet and
income statement which he received from his accountant
the day before the hearing (Resp . Exh. 1) refreshed his
recollection about the contents of similar documents which
his accountant allegedly showed him in the latter part of
January , in view of Roy's previous testimony that during
this January meeting his accountant did not give him a
dollars-and-cents figure about what he was losing, Roy's
admission that he did not understand the figures on the
exhibit , his testimony from time to time that he merely
assumed the two documents were the same, his inaccurate
testimonial description of the loss appearing on Respon-
dent's Exhibit 1, and the difference between his testimonial
description and the exhibit 's description of Respondent's
salary expenses in relation to sales . In addition , Respon-
dent 's own records establish that Roy's testimony grossly
exaggerated the size and frequency of Respondent 's over-
drafts . Furthermore , although Roy testified that most floor
covering sales are "closed" in the evening , and that he hired
Cowles on January 15 to enable Respondent to keep the
store open every evening , after the layoffs he kept the store
open on fewer evenings than before Cowles was hired.
Finally , Roy simply did not act as if his accountant had
as He further testified that his sales were not going up "in proportion to
keep up with [his l added costs" However, when then asked how he knew
what the proportion was, he evaded the question
warned him in December and January that Respondent
had to reduce payroll expenses to stave off ruin within 3
months and he believed this . Instead , he hired a third
salesman on January 15, who was to be paid partly on a
salary basis after a few weeks . His proposal to the
remaining salesmen in the latter part of January to go on a
straight commission basis could not have saved Respon-
dent any money until after the 3-month guarantee period
had elapsed; and, when the salesmen refused , until a few
days after receiving the Union 's February 10 petition, Roy
continued to employ both of them on the same salary basis
as before . Indeed , far from testifying that the layoff
decision was the culmination of financial considerations
allegedly presented to him several weeks previously, Roy
testified that his decision to lay off the entire work force was
made on the very morning of the layoff, when he found that
he had no padding . Respondent 's economic defense is
further undermined by Roy's removal of the sales records
kept by Buscemi , which if available to the accountant might
materially have altered the admittedly incomplete 1975
financial statements prepared by him, and by the rather
free interchange of funds between Respondent, Roy, and
members of the Roy family in the form of loans , repay-
ments , rent, overdue rent , interest, and taxes. I note that
Respondent submitted virtually no evidence to establish
what its financial condition really was (see supra).
For the foregoing reasons , I conclude that Buscemi,
Baxter, and Kane would not have been laid off on February
17 but for Respondent 's union animus and , therefore, that
such layoffs violated Section 8(a)(3) and ( 1) of the Act. The
fact that between February 17 and 20 the layoff encom-
passed all of Respondent's active employees does not affect
its legality . So far as the record shows , the store remained
open at all times until the Union began to picket the store
on February 25, several days after Kane's and Baxter's
recall ; and Roy testified that he was unable to operate the
store with members of his family only. See Textile Workers
Union of America v. Darlington Manufacturing Co., et at 380
U.S. 263 , 271-273 (C.A. 4, 1965). In view of the layoffs
precipitateness and demeanor considerations , I do not
credit Roy's testimony that the layoff extended to the entire
work force because his attorney had told him that the
Union's presence precluded a partial layoff . In any event,
an employer may not lawfully enlarge the size of a layoff
because of the presence of a union . Independent Sprinkler &
Fire Protection Co., 220 NLRB 941 (1975) (ALJD); Amb-
rose Distributing Company, 150 NLRB 1642 , 1646 (1965),
enfd . 358 F .2d 319 (C.A. 9, 1966), cert. denied 385 U .S. 838.
Nor may an employer defend otherwise unlawful action on
the ground that he acted on advice of counsel . Jerstedt
Lumber Company, Incorporated, 209 NLRB 662, fn. 2
(1974); see also N.L.R.B. v. Patrick F. Izzi d/b/a Pat Izzi
Trucking Co., 343 F.2d 753, 755 (C .A. 1, 1965). Further, in
view of Roy's testimony that regular evening hours benefit-
ed the business , I conclude that, after reinstating Baxter
and Kane , Respondent cut back its evening hours in order
to provide a continuing pretext for failing to reinstate
36 Resp . Exh. 1, the unaudited 1975 balance sheet, values inventory at
ROY'S CARPET LAND 265
Buscemi and Cowles rather than for legitimate economic
reasons.
3. The refusal to bargain
a. The appropriate unit
The complaint alleges that "All full-time and regular
part-time employees of Respondent employed at its Spring-
field, Massachusetts location, exclusive of guards and all
supervisors as defined in Section 2(11) of the Act" consti-
tute a unit appropriate for collective-bargaining purposes.
Between January 15 and February 13 (the dates of Cowles'
hire and separation), Respondent had at this location a
total of four active employees-Cowles, Baxter, Buscemi,
and Kane-all of whom were admittedly in the described
unit, and all of whom signed valid union authorization
cards on February 2.
Respondent's operation consists of two retail showrooms
and two warehouses, all of them under one roof. Kane did
mostly warehouse work and the others mostly selling, but at
times they all interchanged work. All four of these employ-
ees worked under Roy's supervision. All four worked under
the same working conditions and work rules, and all four
received the same benefits. All four had a considerable
amount of contact with each other during the workday.
Respondent's answer denies the appropriateness of the unit
described in the complaint, but Respondent has failed to
specify what unit it regards as appropriate. I find that the
single-location, all-employee unit described in the com-
plaint is appropriate for collective-bargaining purposes.
b. The 8(a)(5) allegation and the requested
bargaining order
The principles declared in N.L.R.B. v. Gissel Packing Co.
Inc., 395 U.S. 575, 610-616 (1969), call for a finding of an
8(a)(5) violation and a remedial bargaining order. Respon-
dent laid off all of the Union's supporters to discourage
union activity. Respondent has never offered reinstatement
to two of these employees, including the employee who
initially contacted the Union. Respondent not only told
these employees that they were being laid off because of the
Union's presence, but also threatened to shut the shop
down and effect other reprisals because the Union had
organized the employees, and engaged in coercive interro-
gation in order to find out the identity of the Union's
supporters and which employee had started the union
movement. I conclude that these unfair labor practices are
so serious, pervasive, and extensive as to make a bargaining
order the only effective available remedy therefor. See
Diamond Standard Fuel Corp., 179 NLRB 702 (1969), enfd.
437 F.2d 1163 (C.A. 1, 1971). At the very least, they fall
within the Gissel middle category of "less pervasive practic-
es which nonetheless still have a tendency to undermine
union strength and impede the election process." As unfair
labor practices within that category, they would justify
under Gissel a bargaining order based on the Union's
majority card showing in an appropriate unit and Respon-
dent's failure to honor the Union's bargaining demand if
other relevant considerations confirm "that the possibility
of ensuring a fair election by the use of traditional remedies,
though present, is slight, and that employee sentiment once
expressed through cards would, on balance, be better
protected by a bargaining order." Such confirmation in the
instant case is provided by the inherent lingering tendency
of discriminatory terminations persistently to discourage
continued union activity among its victims even after they
have been offered reinstatement and made whole. W & W
Tool & Die Manufacturing Co., 225 NLRB 1000(1976). An
8(a)(5) fording and a bargaining order are proper even
though, after Roy had grabbed and inspected the employ-
ees' authorization cards, the Union offered to prove its
majority through a card check by a disinterested third
party, filed a representation petition upon Roy's failure to
keep his promise to reply by a definite date, and did not file
a refusal-to-bargain charge until March 2, when Respon-
dent's 8(b)(1XA) charge (later dismissed) held up the
processing of the Union's petition. Gissel, supra, 395 U.S. at
613-615. Because Respondent received the Union's bar-
gaining demand on February 5 and on that same date
commenced its clear course of unlawful conduct, it is found
that Respondent's 8(a)(5) violation began on February 5.
Trading Port, Inc., 219 NLRB 298, 301(1975).
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent has violated Section 8(axl) of the Act by
interrogation regarding employees' union activity, and by
threatening shutdown and other reprisals because of
employees' union activity.
4. Respondent has violated Section 8(a)(3) and (1) of
the Act by laying off employees Peter Cowles, David Kane,
Philip Buscemi, and Fredrick Baxter to discourage union
activity.
5. Respondent has violated Section 8(aX5) of the Act on
and after February 5, 1976, by failing and refusing to
bargain with the Union as the representative under Section
9(a) of the following unit which is appropriate for such
purposes:
All full-time and regular part-time employees employed
by the Respondent at its Springfield, Massachusetts,
location, exclusive of guards and all supervisors as
defined in Section 2(11) of the Act.
6. The foregoing unfair labor practices affect commerce
within the meaning of the Act.
Tim REMEDY
Having found that Respondent has violated the Act in
certain respects, I shall recommend that Respondent be
required to cease and desist therefrom. The record shows
that Respondent laid off its entire work force to discourage
union membership, and evinced an intent to engage in
unfair labor practices in the future by threatening to close
down the shop if it were unionized. Such unfair labor
practices lead me to anticipate that, unless restrained,
Respondent will engage in continuing and varying infringe-
ments of its employees' Section 7 rights. Accordingly, I
266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shall recommend that Respondent be required to cease and
desist from infringing on employees' rights in any other
manner. N. L. R. B. v. Express Publishing Company, 312 U.S.
426, 437-439 (1941); N. L R. B. v. East Texas Pulp & Paper
Company, 346 F.2d 686,689-690 (C.A. 5, 1965); N.LR.B. v.
Southern Transport, Inc., 343 F.2d 558, 560-561 (C.A. 8,
1965); Brom Machine and Foundry Co., 222 NLRB 74
(1976); Highland House Nursing Center, Inc., 222 NLRB
134 (1976).
Further, I shall recommend that Respondent be required
to offer Cowles and Buscemi immediate reinstatement to
the jobs of which they were unlawfully deprived, or, in the
event such jobs no longer exist , substantially equivalent
jobs, without prejudice to their seniority or rights and
privileges, and make each of them whole for any loss of
earnings he may have suffered by reason of his unlawful
layoff, from the date of his layoff to the date of a valid offer
of reinstatement, to be computed in the manner described
in F. W. Woolworth Company, 90 NLRB 289 (1950), with
interest as described in Isis Plumbing & Heating Co., 138
NLRB 716 (1962). (Because Kane and Baxter have been
reinstated without loss of pay, the General Counsel seeks
no similar order as to them.) In view of my finding that
Respondent cut down its evening hours in order to provide
a continuing pretext for failing to reinstate Buscemi and
Cowles, for purposes of computing backpay during such a
cutback in hours, Respondent is to be deemed in need of
three salesmen . In addition, for the reasons previously
indicated, I shall recommend that Respondent be required
to bargain with the Union, on request. Also, I shall
recommend that Respondent be required to post appropri-
ate notices.37
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER38
The Respondent, Roy's Carpet Land, Inc., Springfield,
Massachusetts , its officers , agents , successors , and assigns,
shall:
1. Cease and desist from:
(a) Interrogating about employees' union activity in a
manner constituting interference , restraint, or coercion.
(b) Threatening to shut down its operation or effect other
reprisals because of employees' union activity.
(c) Telling employees that they are being laid off because
of union activities.
(d) Discouraging membership in Retail Employees'
Union, Local 1459, Retail Clerks International Association,
or any other labor organization, by laying off employees, or
otherwise discriminating in any manner in regard to their
hire or tenure of employment or any terms or conditions of
employment.
(e) Refusing to bargain in good faith with Local 1459 as
the exclusive bargaining representative of the following unit
which is appropriate for such purposes:
All full-time and regular part-time employees employed
by the Respondent at its Springfield, Massachusetts,
location , exclusive of guards and all supervisors as
defined in Section 2(11) of the Act.
(f) In any other manner interfering with, restraining, or
coercing its employees in the exercise of rights guaranteed
them in Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Offer Peter Cowles and Philip Buscemi immediate and
full reinstatement to their former jobs or, if their former
jobs no longer exist, to substantially equivalent jobs, and
make them whole for any loss of pay they may have
suffered by reason of their unlawful layoff, in the manner
set forth in the section of this Decision entitled "The
Remedy."
(b) On request, bargain with Local 1459 as the exclusive
bargaining representative of the employees in the appropri-
ate unit with respect to wages, rates of pay, hours of
employment, and other terms and conditions of employ-
ment, and, if an understanding is reached, embody such
understanding in a signed written agreement.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary or useful to the analysis of the amount of
backpay due under the terms of this Order.
(d) Post at its place of business in Springfield, Massachu-
setts, copies of the attached notice marked "Appendix." 39
Copies of the notice on forms provided by the Regional
Director for Region 1, after being duly signed by Respon-
dent's representative, shall be posted by it, in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to ensure that the said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 1, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
37 After the unfair labor practices herein , Respondent hired Roy's son,
who had previously worked for Respondent but needed ajob in order to get
out ofjail. In accordance with the General Counsel 's suggestion, the effect of
this hire on Cowles ' and Buscemi's reinstatement rights, and whether the
younger Roy is part of the bargaining unit, are left to compliance
proceedings . Foam Rubber City #2 of Florida, Inc. d/b/a Scandia, 167 NLRB
623 (1967); Pansoff Drive-In Market, Inc., 201 NLRB 813 (1973).
38 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions , and Order, and all objections thereto shall be deemed
waived for all purposes.
39 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals , the words in the notice reading "Posted by
Order of the National Labor Relations Board " shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had the opportunity to
present their evidence, it has been decided that we violated
the law in certain respects. We have been ordered to post
ROY'S CARPET LAND
this notice . We intend to carry out the Order of the Board
and abide by the following:
WE WILL NOT interrogate about employees' union
activity in a manner constituting interference, restraint,
or coercion.
WE WILL NOT threaten to shut down the shop or
effect other reprisals because of employees' union
activity.
WE WILL NOT tell employees that they are being laid
off because of union activities.
WE WILL NOT lay off or otherwise discriminate
against any employee to discourage membership in
Retail Employees ' Union, Local 1459 , Retail Clerks
International Association, or any other union.
WE WILL NOT refuse to bargain with Local .1459 as
the exclusive representative of the employees in the
following unit:
All full-time and regular part-time employees
employed by us at our Springfield , Massachusetts,
location , exclusive of guards and supervisors as
defined in Section 2(11) of the Act.
WE WILL offer Peter Cowles and Philip Buscemi
reinstatement to their old jobs or, if such jobs no longer
exist, to substantially equivalent jobs, and make them
whole , with interest , for loss of pay resulting from their
layoff.
267
WE WILL, on request , bargain with Local 1459 as the
exclusive representative of the employees in the above
unit, and embody in a signed written agreement any
understanding reached.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of the rights
guaranteed by Section 7 of the Act.
The National Labor Relations Act gives employees the
following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through representatives
of their own choosing
To engage in activities together for the purpose
of collective bargaining or other mutual aid or
protection
To refrain from any such activities.
Our employees are free to exercise any or all of these
rights , including the right to join or assist Local 1459 or any
other union . Our employees are also free to refrain from
any or all such activities , except to the extent that union
membership may be required by a collective -bargaining
agreement as a condition of continued employment as
permitted by the proviso to Section 8(a)(3) of the Act.
Roy's CAIU ET LAND, INc.