Value City Furniture Of Springdale, Inc.

National Labor Relations Board - Board Decisions

Jan 19, 1975

222 N.L.R.B. 455 (N.L.R.B. 1975)

VALUE CITY FURNITURE -
Value City Furniture of Springdale, Inc. and Retail
Store Employees Union, Local, No. 1099, - Retail
Clerks International Association , AFL-CIO. Cases
9-CA-8986 and 9-RC-10848
January 19, 1975
DECISION, ORDER, AND DIRECTION
By CHAIRMAN MURPHY AND MEMBERS JENKINS
AND PENELLO
On September 23, 1975, Administrative Law Judge
Melvin J. Welles issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the Charging Party filed
an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order. -
ORDER
Pursuant' to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Value City Furniture of
Springdale, Inc., Springdale, Ohio, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
DIRECTION
It is hereby directed that, as part of the investiga-
tion to ascertain a representative for the purpose of
collective bargaining among certain employees em-
ployed by Value City Furniture of Springdale, Inc.,
in the unit set forth in the Stipulation for Certifica-
tion Upon Consent Election in Case 9-RC-10848,
the Regional Director for Region 9 shall, pursuant to
the Board's Rules and Regulations , at a time and
place to be set by him, open and count the ballots of
1 The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge It is the' Board's established policy not to over-
rule an Administrative Law Judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect Standard Dry Wall Products, Inc, 91
NLRB 544 (1950), enfd 188 F 2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
455
Doris Taylor, Marcus Estes, Patricia Pacula, Corbin
Pennington, Rex Yasbeck, Pat Canelli, and Ken
McClure and, thereafter, prepare and cause to be
served on the parties a revised tally of ballots, includ-
ing therein the count of said ballots, upon the basis
of which he shall issue the appropriate certification.
DECISION
STATEMENT OF THE CASE
MELVIN J. WELLES, Administrative Law Judge: Case
9-CA-8986 is before me pursuant to charges filed on De-
cember 2, 1974, and amended on January 20 and 27, 1975,
and a complaint issued on January 30, 1975, alleging that
Respondent violated Section 8(a)(1) and (3) of the Nation-
al Labor Relations Act, as amended. In Case 9-RC-10848,
an election was conducted on December 4, 1974, pursuant
to a Stipulation for Certification Upon Consent Election,
which resulted in three votes for the Petitioner and five
against it, with nine challenged ballots,. On February 10,
1975, the Regional Director for Region 9 determined that
the eligibility of seven of the challenged employees was
dependent on whether or not their discharges were in viola-
tion of Section 8(a)(3), and that the eligibility of the other
two employees whose ballots were challenged presented
substantial and material issues of fact best resolved by a
hearing. Accordingly, the Regional Director ordered that
Case 9-RC-10840 be consolidated with Case 9-CA-8986.
A hearing was held before me in Cincinnati, Ohio, on April
1 and 2, 1975. Briefs were thereafter submitted by the Re-
spondent, the General Counsel, and, in Case 9-CA-8986,
the Petitioner.
Upon the entire record in the case,' including my obser-
vation of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT AND THE LABOR
ORGANIZATION INVOLVED
Respondent is an Ohio corporation engaged in the retail
sale and distribution of furniture. Its store located at 100
Kemper Road, Springdale, Ohio, a suburb of Cincinnati, is
the only location involved in this proceeding. During the
12 months prior to the issuance of the complaint,
Respondent's gross sales exceeded $500,000 in value. Dur-
ing the same period, Respondent received products valued
in excess of $50,000 directly from points outside the State
of Ohio. I find, as Respondent admits, that it is an employ-
er engaged in commerce within the meaning of Section 2(6)
and (7) of the Act. The Union is a labor organization with-
in the meaning of Section 2(5) of the Act.
'Respondent's unopposed motion to correct the transcript is hereby
granted -
222 NLRB No. 75
456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IL THE UNFAIR LABOR PRACTICES
A. The Issues
The questions in the unfair labor practice aspect of the
case are (1) whether Respondent violated Section 8(a)(1) of
the Act by the conduct of Store Manager Mazza in alleged-
ly (a) offering and paying money to employees in connec-
tion with an election among the Company's warehouse em-
ployees to influence their vote, (b) interrogating employees
concerning their union sympathies and activities, (c) stat-
ing to employees that the Company would hire additional
employees to defeat the Union, (d) hiring or transferring
employees into the bargaining unit to defeat the Union, (e)
telling an employee that the Company was aware of the
Union's organizational activity and that the Company did
not need that type of activity, (f) telling an employee that
the Company would have to let employees go because of
the Union's organizational efforts, and (g) soliciting an em-
ployee to engage in surveillance of other employees' union
activities; and (2) whether Respondent violated Section
8(a)(3) and (1) of the Act by discriminatorily discharging
seven employees.
As noted above, the representation case involves the eli-
gibility of nine employees, with the determination of seven
of them wholly dependent on whether or not they are
found to have been discriminatorily discharged, and that
of the other two on whether they are employees in the unit
and eligible to vote on the agreed eligibility date.
B. Facts and Discussion
Respondent in this case, as noted above, is one of a
chain of retail furniture stores, with its headquarters at Co-
lumbus, Ohio, and is located at Springdale, Ohio, a suburb
of Cincinnati. Another Value City retail store is located at
Covington, Kentucky, also a Cincinnati suburb. Starting
sometime early in October, a number of employees in the
Springdale store, Yasbeck, Canelh, Estes, and Doris Tay-
lor, started talking about unionizing the store. One of them,
Canelli, contacted the union, and, on October 23, a meet-
ing was held, attended by most of the Company's sales
personnel. At this meeting, all of the alleged discriminatees
signed union authorization cards. The record is silent as to
whether any other employees signed cards. The next day,
October 24, Mazza interrogated employees Horton, Pacu-
la, Doris Taylor, and McClure about their union activities,
and asked Pacula to report back to him any talk of union
activities she heard on the selling floor. Mazza admitted
having engaged in these interrogations, and having asked
Pacula to report back to him any talk of union activities
she heard, and Respondent in its brief concedes that Re-
spondent thereby violated Section 8(a)(1) of the Act, al-
though having denied any such violations in its answer to
the complaint. I find, accordingly, that Respondent violat-
ed Section 8(a)(1) by the aforesaid conduct of Store Man-
ager Mazza.
The remaining allegations of 8(a)(1) violations cannot be
resolved without determining whether to credit the affir-
mative testimony of various General Counsel witnesses or
the denials of Mazza. Because some of these conflicts are
intertwined with the 8(a)(3) allegations, I will consider
them after discussing the latter.
On or about November 1,2 Respondent discharged or
laid off six salesmen: Patricia Pacula, Rex Yasbeck, Pat
Canelli, Marcus Estes, Doris Taylor, and Corbin Penning-
ton. Pennington was reinstated about November 13, and
Kenneth McClure was laid off a few days later following
the discovery of an error with respect to Pennington that
he pointed out to the Company. Most of the alleged dis-
criminatees were told by Mazza that they were laid off for
economic reasons, according both to their own testimony
and that of Mazza. Thus, Pacula was told that "business
was slow," and that Mazza had to "cut down the payroll."
Mazza also told her that because she was not working full-
time and was not the sole provider in her family, he was
laying her off, but that he would hire her back when busi-
ness picked up. Yasbeck was told "We can no longer carry
you. You have let us down for the last couple of months.
Maybe you can come back and work for us again in the
future." Pennington was told that he was discharged be-
cause Mazza had received a call from Columbus that any-
body behind on their draws had to be dismissed. Canelli
was told that "things were a bit slow," so he was going to
be laid off. According to Canelli, he asked Mazza if it was
"anything pertaining to my draw or maybe doing my work
wrong?" and Mazza said no, that perhaps in a few weeks
he could call Canelli back.
Two of the alleged discriminatees, Doris Taylor and
Marcus Estes, were, according to their testimony, in effect
told by Mazza that their discharges resulted from their
union activities. Estes testified that Mazza told him that he
was being discharged, stating also that he was "`aware of
the Union activities I had been involved in, that the Com-
pany didn't need it." Taylor was told, according to her,
when she asked why she was' being let go, "Well, Doris,
you know with this Union thing coming up I just can't
have it. You know I've got to lay you and a few other
people off." Mazza denied having made any reference
whatsoever to the Union in connection with informing
either Estes or Doris Taylor of their discharges. He testi-
fied that he told Estes he was being let go because of "the
lack of business, lack of work, and of course, he had been
in the hole for two out of the three months, or two months
anyhow." He testified that he told Taylor "about the con-
ditions of the business, which she knew, the rest of them
knew, that business was down, she had been in the hole.
And I had been ordered according to company policy,
which I was carrying out at this time, I had to lay her off."
Other undisputed facts bearing on the discrimination is-
sue are: (1) Rosemary Taylor (Mazza's sister) was hired as
a salesperson on October 30, 1974. She quit her employ-
ment on December 22. (2) David Hall, who had voted in
an election held among the warehouse employees on Octo-
ber 14, 1974, was told by Mazza, in the latter part of Octo-
ber, to spend more time on the sales floor. (3) The Compa-
ny, toward the end of October, 1974, placed an
advertisement in the Cincinnati Post, which ran for 5 days,
2 Doris Taylor was actually laid off on November 3, because she was not
at work on November 1, when Respondent attempted to reach her to inform
her of her layoff.
VALUE CITY FURNITURE
seeking experienced salespeople for its Covington and
Springdale stores. (4) The Company did not hire any new
salespeople at its Springdale store following the layoff or
discharge of the alleged discriminatees. (5) Sometime after
the layoffs, the Company's warehouse department gradu-
ally reduced, by attrition, from about 16 employees to
about 5 employees. Its office clerical staff went from 6 to 4.
(6) The Company's financial statements for the Springdale
store show a loss for its fiscal year ending July 31, 1974, of
some $360,000, and a further loss of $82,000 for the months
of August and September, 1974.
The General Counsel contends that Respondent dis-
charged or laid off 3 the alleged discriminatees in order to
discourage union activity among its employees. Apart from
the statements attributed to Mazza by Estes and Doris
Taylor, which are in dispute, the General Counsel relies
upon the fact that all the laid-off employees had attended a
union meeting and signed cards for the Union; that most
of them were interrogated by Store Manager Mazza shortly
thereafter, on October 24; that Mazza also asked one of
them, Pacula, to inform him concerning the union activi-
ties of other salespeople; and that the layoffs followed hard
on the heels of the union activities and the interrogations
by Mazza. In addition, the General Counsel relies upon the
fact that the discharges were precipitate, with no advance
notice whatsoever, that Respondent's asserted policy-dis-
cussed at length below-of discharging employees who did
not meet their "draw" in two of the three preceding months
had never been disclosed to the employees, and in attack-
ing the asserted economic bases both for laying off any
sales personnel, and for selecting those salespeople who
were laid off.
Respondent, on the other hand, contends that the deter-
mination to lay off was made prior to any union activity in
the store, and therefore necessarily prior to any knowledge
thereof by it, and that both the determination to cut the
sales staff and the selection of employees to be cut were
economically motivated, the former because of the Spring-
dale store's poor earnings record in both the preceding fis-
cal year and the months of August and September just
prior to the decision to lay off, and the latter based on the
aforementioned policy of laying off employees who did not
meet their draw in two of the three preceding months. As I
understand the testimony of Respondent's witnesses, the
latter policy is actually unrelated to the poor economic pic-
ture that existed at the Springdale store at the time, and is
a policy that would normally apply without regard to a
store's earnings , or lack thereof.
The uncontroverted and admitted facts brought out by
the General Counsel's witnesses do present a clear prima
facie case of discrimination with respect to the seven sales-
people laid off. They all did attend the union meeting on
October 23, and sign union authorization cards, almost 'all
were interrogated by Mazza, and Mazza did ask Patricia
3 Respondent at one point in its brief contends that the employees were
laid off rather than discharged, and a number of the employees did testify
that Mazza told them they were laid off. At another point in its brief,
however, Respondent states that it "never intended to recall or rehire any of
those employees who were laid off." In any event, whether the employees
were "laid off" or "discharged" in any technical sense is of no consequence;
the question here is why their employment ended.
457
Pacula to report on the union activities of the others, on
the day after the union meeting. And less than a week later,
with no prior notice or warning of any sort, six of the seven
.were laid off. Additionally, the Company hired Rosemary
Taylor as a salesperson on October 30, 2 days before the
mass layoff, and Respondent advertised for "experienced
salespeople" for the Springdale (and Covington) store in
the days surrounding the layoff. The resolution of this
question thus turns on a careful examination of
Respondent's asserted motivation for the layoffs, to de-
termine whether the evidence presented by Respondent
suffices to rebut the General Counsel's prima facie case.
The documentary evidence shows that Respondent lost
about $360,000 at the Springdale store for the fiscal year
ending July 31, 1974, and that it lost an additional $ 80,000
at that store in August and September of that year. Ac-
cording to Respondent's witnesses, Company President
Schottenstein (who did not testify at the hearing) did not
receive the financial statement for the Springdale store un-
til about October 14. According to Vice President Miller,
Schottenstein told Miller that the financial statements were
the worst he had ever seen, that selling costs were too high
and that the sales force would have to be reduced. Schot-
tenstein and Miller then decided, according to Miller, to
reduce the sales force by laying off employees in accor-
dance with company policy of laying off salesmen who had
not met their draw in two of the three preceding months.
The sales personnel work on a 5 percent commission. At
the beginning of each month they receive a "draw," the
amount of which is set by the employee himself (apparent-
ly based on his own expectancy, based on experience, of
the amount he is likely to earn in commissions). At the end
of the month, an employee who did not earn as much as his
draw was considered to be "in the hole."
A list of the employees' sales, draw, and commission fig-
ures for the months of August through October 1974, in-
cluding their dates of hire, and monthly and cumulative
totals, with net totals with respect to their commissions and
draw, follows:
Employee E/0/D Aug. Sept . Oct. Totals
Yasbeck 4 / 10/74 30741 11234 3392 45367
600 750 600 1950
1537 562 170 2269
937 (188) (430) 319
Pacula 7/7/74 4464 3319 5940 13723
300 150 318 768
223 166 297 686
(77) 16 (21) (82)
Pennington 10/10172 20477 12221 16875 49573
600 750 600 1950
1024 611 844 2479
424 (139 ) 244 529
Estes 8/20/74 4758 9199 4166 18123
150 750 600 1500
238 460 208 906
88 (290) (392) (594)
McClure 8/17/74 5924 13162 6827 25913
210 750 600 1560
296 658 341 1295
86 (92) (259) (265)
458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employee
D. Taylor
Canelli
White
Brinkman
Horton
Frost
Braun
E/O/D Aug . _ Sept. Oct. Totals
8 /20/74 3870 4467 4235 12572
80 400 300 780
193 223 211 627
113 (177 ) ( 89) (153)
8/25/74 4019 15028 11564 30611
150 750 600 1500
200 751 578 1529
50 1 (22) 29
2/6/74 23146 10681 12583 46410
600 750 600 1950
1157 534 629 2320
557 (216) 29 370
9/23/74 4218 7619 11837
150 500 650
210 380 590
60 120 (60)
4/ 11/74 27077 13033 14051 54161
450 750 600 1800
1353 652
-
702 2707
9 3 98 1002 907
9/18/73 18149 15480 11069 44698
300 750 600 1650
907 774 553 2234
607 24 47 584
6/5/73 4534 3908 3775 12217
226 195 188
5/10/74 6715 4135 401 11251
335 207 20
5/ 19/74 20294 6333 4268 30895
600
1014 316 213
414
4/25/73 35497 24627 22372 82496
300 750 600 1650
1774 1231 1118 4123
14 44 481 518 2473
pany could not take, or should not have taken, any action
in an attempt to change the situation, to reduce losses and
produce profits. But the discharge, or layoff, of seven sales-
persons seems to me a rather odd way to have accom-
plished the Company's avowed purpose. Virtually all of the
selling salaries figures of 5.6 percent and 6.1 percent are
accounted for by the 5 percent commission paid to them.
Therefore, at most .6 percent and 1.1 percent of this ex-
pense could be saved by cutting all sales personnel, and, of
course, a proportionately lesser amount with respect to
each person kept on the payroll. That is, cutting 40 percent
of the sales personnel (as was ultimately done) could save
only 40 percent of .6 percent or 1.1 percent, or a total of .24
percent or .44 percent. And even these figures assume that
the full amount over the 5 percent commission would be
"savable," that no portion thereof is attributable to built-
in, continuing expenses that would not be saved.
These maximum savings that could be achieved by cut-
ting any of the sales personnel represent so minuscule an
amount in relation to the Company's losses at the Spring-
dale store that the sales force would appear to be the last
rather than the first place to look in determining how to
reduce "losses," cut operating expenses, and turn the store
around to profitability. Indeed, from the Company's stand-
point, more rather than less sales personnel would seem a
more practical solution to the problem, for more salespeo-
ple would presumably generate more sales, and the 5 per-
cent commission paid on sales would not be any different,
in relation to the volume of sales, whether divided among a
few or a great many salespeople. I recognize the limitations
inherent in this "suggestion," for spreading the potential
sales over many more salesmen might be self-defeating in
that all sales personnel might be reduced to a level of sales
that was too low to keep any of them, and thus represent a
suicidal policy. But not, however, in terms of "sales costs,"
which is Respondent's argument. I recognize also that any
retail company would prefer good salesmen to poor sales-
men even if the latter were not really costing the Company
anything, so long as they were paid on a straight commis-
sion basis, for a staff of poor salesmen might be missing
out on potential customers, or, indeed, driving them away.
It is in this sense that the figures relating to, any particular
salesmen can be significant, and I turn to the Company's
asserted basis for selecting employees for layoff.
In my opinion, the fallacy of using, an employee's draw
as the benchmark against which to determine his worth to
the Company is even more readily apparent than utilizing
cutting the sales force to reduce expenses and cut losses. A
single example will demonstrate this fallacy. Thus, suppose
employee A, with a draw of $1000, sells $19,900 worth of
furniture in a particular month. He earns $995 in commis-
sions, and is "in the hole" to the amount of $5. Employee
B, with a draw of $500, sells $10,500 worth of furniture that
same month. He earns $525 in commissions, $25 more than
his draw, and is not "in the hole." As between the two, the
Company's asserted policy would require A, assuming the
above figures prevailed in 2 out of 3 consecutive months, to
be laid off, and B to be retained. Yet manifestly A has been
not only more productive by a close to ,2 to 1 ratio, but also
has earned more for the Company, in! approximately the
same ratio. Indeed, the Company's asserted policy would
The documentary evidence also shows that selling "sala-
ries" (basically the 5-percent commission, and apparently
including some fringe payments of one sort of another, the
record is not clear) amounted to 5.6 percent of total operat-
mg expenses at the Springdale store for the fiscal year end-
ing July 31, 1974, to 5 percent for August, 1974, and to 6.1
percent for September, 1974.
The foregoing figures, that is, the losses incurred at the
Springdale store in fiscal 1974, and continuing into August
and September of its new fiscal year, the selling cost of 5.6
percent and 6.1 percent in fiscal 1974 and September 1974,
respectively, and the excess of draw over commission in 2
out of 3 months prior to November 1 in the case of all the
alleged discriminatees (except Pennington), are all urged
by Respondent as having justified both the determination
to economize by laying off salespeople, and the determina-
tion of which ones were to be laid off.
I do not take issue with the fact that the losses at the
Springdale store occurred, nor do I suggest that the Com-
VALUE CITY FURNITURE 459
require A to be laid off and B retained if the foregoing
figures prevailed in 2 of the 3 preceding months even if in
the third month A sold $30,000 worth of furniture, and
therefore exceeded his draw by $500 that month, and B
earned`the same amount as in the other 2 months. I cannot
believe that ,such a self-destructive policy could exist, or
did exist at Respondent's stores.
True, it is not my function to determine what sort of
policy a company should have. If it chooses to maintain a
policy that makes no economic sense, it is not for me to say
that it cannot do so. But when, as here, the policy is intrin-
sically unsound; when,- as here, it is a policy that- has never
been communicated to any of the sales personnel;4 and
when, as here, the invocation of the policy was presumably
dictated by the Springdale store's poor earnings, although
the Company was ridding itself of six salesmen, some of
whom were much more productive than others who were
not laid off, I am constrained to conclude that the asserted
policy never existed.
The sales, draw, and commission figures set forth above
show that in some of the A and B hypothetical cases set
forth above was not wide of the mark. Yasbeck, with over
$45,000 in total sales for August through October, was laid
off, even though for the 3 months his commission exceeded
his draw by $317. Only three of the salesmen retained
earned more in the 3 month period. Canelli, who did not
start working until August 25, sold more than $30,000
worth of furniture in a little more than 2 months, and was
$29 ahead of his draw (indeed, he was behind his draw in
only I month). Three of the retained employees, two of
whom had been with the Company for-a much longer time,
earned substantially less than Canelli. Pennington, even
though presumably laid off by mistake, had total sales fig-
ures exceeded by only two of the retained employees. Re-
spondent in its brief attributes the losses at Springdale "at
least partly ... to unproductive salespeople ...." As-
suming this to be so, although there is nothing offered to
support it, the relationship between the draw and the com-
mission is by itself wholly unrelated to "productivity."
Aside from the logic, or lack thereof, in Respondent's
basis for reducing expenses and for selecting salespersons
to be laid off, two occurrences that just cannot be,squared
with Respondent's asserted economic basis for its conduct
demonstrate the true picture. First, on October 30, 1 day
before the bulk of the layoffs occurred, and about 2 weeks
after Mazza, according to his testimony and that of other
company officials, was instructed to implement the compa-
ny "policy" of laying off employees behind in their draw
for 2 out 3 months, Mazza hired Rosemary Taylor (his
sister) as a salesperson at Springdale. Second, for about 5
days prior to November 4 (the record does not show
whether these were consecutive days), the Company adver-
tised for experienced' sales personnel for both the Spring-
dale and Covington stores. Placing an advertisement for
new employees and hiring a new employee just prior to a
4 Since the amount of the draw does not determine an employee' s earn-
ings, any employee could, by making his draw quite low, always avoid
layoff or discharge, and only a fool would draw an amount much larger
than his judgment or past experience indicated he was likely to earn in
commissions, with such a policy in effect, and known to be so.
layoff already scheduled, and presumably dictated by eco-
nomic reasons, does not make sense.
Respondent attempts to explain away the placing of the
advertisement, obviously recognizing its damaging nature
to Respondent's position, by testimony ("undisputed") to
the effect that the real purpose of the advertisement was to
secure personnel for Covington, and Springdale was placed
in it because Mazza, who was managing both stores at the
time, was primarily- located at Springdale, and because
Kentucky papers do not permit listing an Ohio address in
the classified section. Mazza claimed that by attracting in-
dividuals with the Cincinnati address, he might he able to
convince them to work at the Covington store. (Respon-
dent makes no attempt to explain the hiring of Rosemary
Taylor on October 30.)
This is but one of a number of instances where
Respondent's witnesses gave testimonial "explanations"-to
contradict or explain away objective facts that militated
against its position. Thus, the fact that. Mazza admittedly
interrogated a number of the discriminatees on October 24,
and sought to have Pacula report to him about the union
activities of the other salespersons, followed by the mass
layoff on November 1, strongly suggests an invidious mo-
tive for the layoff, based on its timing, and on Mazza's
knowledge of the union activities at the time. Respondent
adduced testimony, to blunt the effect of this knowledge
and the timing, that the decision to layoff was made about
a week before October 24. And Mazza "explained" his fail-
ure to act promptly, when President Schottenstein presum=
ably told him to follow the policy of laying off salespersons
behind in their draws immediately, by claiming that he
wanted to see the full month's figures for October before
making the determination. Although, as pointed out above,
the cost of sales , with respect to selling salaries, exceeded
the absolute minimum of the 5 percent commission by only
.6 percent in fiscal 1974, not at all in August 1974, and'by
only 1.1 percent in September, company official Miller ex-
plained that even these figures are "almost unheard of."
And, although armed with documents to support its figures
in various respects, Respondent adduced no d ocuments or
figures to support Miller's assertion that other stores had a
smaller figure than those at Springdale. Nor did Respon-
dent adduce any documentary evidence, or any witnesses
other than its own officials, to attest to the existence of the
policy with respect to layoff of employees "in the hole."
Surely, if such a policy existed; some of the older employ-
ees would have known of it. And, as pointed out before,
since the draw itself is within the control of the employee,
the policy could not have been known to the employee.
In sum, Respondent's asserted ground for determining
to cut the sales force by some 40 percent as well as its
asserted basis for selecting the personnel to be cut, does
not stand up under scrutiny, and bolster, rather than re-
fute, the General Counsel's prima facie case of discrimina-
tion. For the many reasons set forth above, I do not credit
the testimony of Mazza, or other company officials, to the
effect that the decision to cut the sales force was, made
about October 17. Although the finding of a discriminatory
motivation here is largely based on circumstantial, rather
than direct, evidence, that is true of most cases of this na-
ture. Given the objective facts that Mazza interrogated
460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
four of the employees on October 24, and on that same
date asked one of them to report on the union activities of
the others (in itself a strange thing to do if Mazza had
really already been instructed to lay off many of the sales-
persons); that thereafter a new employee was hired and
new employees were explicitly sought in a newspaper ad-
vertisement, and considering that cutting down on the
number of salesmen , particularly with the selection method
ostensibly utilized, would seem counterproductive with re-
spect to the bleak economic situation at the Springdale
store, the only explanation left is the contemporaneous
union activities of the sales personnel. Unlike Sherlock
Holmes, I am not basing this conclusion on the bromide
that where all likely explanations fail, look for the most
unlikely one, for it must be the true explanation. For, as
noted extensively above, the General Counsel has estab-
lished a clear prima facie case of discrimination, which re-
mains (rather than emerges) as the only explanation for the
discharges once Respondent's explanations have failed to
pass muster.
Although I am finding a violation here, I do not rely
upon the testimony of Doris Taylor and Estes to the effect
that they were told their union activities caused their dis-
charges. First of all, it is hardly likely that Mazza would
have told two of the employees this while telling all the
others that their layoffs were economic in nature, caused
by the poor earnings picture at Springdale, and by their
failure to meet their draw. And since the entire picture
evidences a Respondent seeking to hide its discriminatory
motivation under the cloak of legitimate business reasons,
that Mazza would stray from the litany of economic rea-
sons would be even less likely. I do not rely at all on any
testimony of James Oppenheimer concerning various con-
versations he had with Mazza. Oppenheimer was clearly
shown, as is now admitted by the General Counsel, to have
been a supervisor, and nothing in his testimony adds any-
thing to the violations found herein. I do find, crediting the
testimony of employee Horton, confirmed by that of em-
ployee Pennington, and discrediting Mazza's denial, that
Mazza threatened to "flood' the store with salespeople in
order to defeat the Union. I have taken cognizance, in dis-
crediting 'Mazza in most respects, of Respondent's argu-
ment that Mazza, having subsequently been discharged by
the Company, would not be likely to falsify his testimony.
The many objective facts adverted to above, however, as
well as the demeanor of the witnesses involved, impel me
to conclude that Mazza was not a credible witness.
The cases of Pennington and McClure do not present
any special problem. Having concluded that the layoff it-
self was discriminatorily motivated, the fact that Penning-
ton was originally laid off "by mistake," not having been
"in the hole" for 2 or the 3 preceding months, does not
make his layoff any the less discriminatory. And McClure,
of course, who was then substituted for Pennington for
layoff, is in precisely the same posture as the other discrim-
inatees. I find, accordingly, that Respondent violated Sec-
tion 8(a)(1) and (3) by laying off the seven salesmen in-
volved.
C. The Representation Case
Having found that Respondent discriminatorily laid off
employees Doris Taylor, Marcus Estes, Patricia Pacula,
Corbin Pennington, Rex Yasbeck, Pat Canelli, and Ken
McClure, I shall recommend that the challenges to their
ballots be overruled. With respect to Rosemary Taylor, I
am satisfied, considering the credited testimony of Horton
about Mazza's threat to "flood" the store, as well as the
advertisement for new employees, and considering also
that she was hired on October 30, 1 day before the mass
layoff, and was Mazza's sister, that she was not a bona fide
employee, but was hired as part of Mazza's antiunion cam-
paign. I shall recommend that the challenge to her ballot
be sustained.
As to David Hall, he voted in an election conducted
among Respondent's warehouse employees on October 16,
he was told by Mazza in the latter part of October to do
more selling on the sales floor, and, according to the testi-
mony of employee Horton, "he kind of came and went as
he pleased also. As far as having regular hours like the rest
of us had he didn't." Having just voted in another unit
does not in and of itself mean that Hall could not subse-
quently have become part of the unit of salesmen, but tak-
ing that fact into account, as well as Mazza's hiring of
Taylor about the same time, I am convinced that Hall, too,
was part of Mazza's attempt to defeat the Union by flood-
ing the sales floor, and that he did not have the status of a
"full-time" or "regular part-time" selling employee, the sti-
pulated unit description. I shall, therefore, also recommend
that the challenge to his ballot be sustained.
CONCLUSIONS OF LAW
Respondent, by interrogating employees about their
union activities, by soliciting an employee to report on the
union activities of other employees, by threatening to
"flood" the sales floor in order to defeat the Union, and by
discriminatorily discharging or laying off employees Doris
Taylor, Marcus Estes, Patricia Pacula, Corbin Pennington,
Rex Yasbeck, Pat Canelli, and Ken McClure, engaged in
unfair labor practices affecting commerce within the mean-
ing of Section 8(a)(1) and (3) and Section 2(6) and (7) of
the Act.
THE REMEDY
I shall recommend that Respondent cease and desist
from its unfair labor practices, and post appropriate no-
tices. Having found that Respondent discriminatorily laid
off the employees set forth above, I shall recommend that
Respondent make each of them whole for any loss they
may have suffered by reason of the discrimination against
them to the date Respondent offered to reinstate them, in
the case of Pennington, to the date he was reinstated. Back-
pay will be computed in accordance with the formula set
forth in F. W. Woolworth Company, 90 NLRB 289 (1950),
VALUE CITY FURNITURE 461
and Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
Upon the foregoing findings of fact, conclusions of law,
and the entire record in the case, and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
ORDERS
Respondent, Value City Furniture of Springdale, Inc.,
Springdale, Ohio, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Interrogating its employees concerning their union
activities.
(b) Soliciting its employees to report on the union activi-
ties of other employees.
(c) Threatening its employees with "flooding" the store
for the purpose of defeating the Union.
(d) Discouraging membership in Retail Store Employees
Union, Local No. 1099, Retail Clerks International Associ-
ation, AFL-CIO, or in any other labor organization, by
discriminating against employees in regard to hire, or ten-
ure of employment or any term or condition of employ-
ment.
(e) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights guar-
anteed by Section 7 of the Act, except to the extent that
such right is affected by the proviso to Section 8(a)(3) of
the Act.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Make whole Doris Taylor, Marcus Estes, Patricia
Pacula, Corbin Pennington, Rex Yasbeck, Pat Canelli, and
Ken McClure in the manner set forth in the section of this
Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary to analyze the amount of backpay due under the terms
of this recommended Order.
(c) Post at its Springdale, Ohio, plant copies of the at-
5 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.
tached notice marked "Appendix." 6 Copies of said notice,
on forms provided by the Regional Director for Region 9,
after being duly signed by Respondent's representative,
shall be posted by it immediately upon receipt thereof, and
by maintianed by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by the Respondent to ensure that said notices are
not altered, defaced, or covered by any other material.
(d) Notify said Regional Director, in writing, within 20
days from the date of this Order, what steps the Respon-
dent has taken to comply herewith.
IT IS FURTHER ORDERED that Case 9-RC-10848 be remand-
ed to the Regional Director to open and count the ballots
of Doris Taylor, Marcus Estes, Patricia Pacula, Corbin
Pennington, Rex Yasbeck, Pat Canelli, and Ken McClure
to issue a revised tally of ballots, and to take such further
action as then becomes appropriate.
6 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
WE WILL NOT lay off or discharge any employee for
engaging in union activities.
WE WILL NOT interrogate employees about their
union activities.
WE WILL NOT solicit any employee to report on the
union activities of other employees.
WE WILL NOT threaten to hire employees for the pur-
pose of defeating a union.
WE WILL NOT in any other manner interfere with,
restrain , or coerce our employees in the exercise of
rights under Section 7 of the Act.
WE WILL make whole employees Doris Taylor, Mar-
cus Estes , Patricia Pacula, Corbin Pennington, Rex
Yasbeck, Pan Canelli, and Ken McClure by giving
them backpay for the period between their layoff and
the date they were either reinstated or received offer,;
of reinstatement from the Company.
VALUE CITY FURNITURE OF SPRINGDALE, INC.