Tillman Furniture Co.

National Labor Relations Board - Board Decisions

Nov 16, 1955

114 N.L.R.B. 1006 (N.L.R.B. 1955)

1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
It having been found that the Respondent has engaged in certain unfair labor
practices, it will be recommended that it cease and desist therefrom and that it take
certain affirmative action designed to effectuate the policies of the Act.
It having been found that the Respondent discriminated in regard to the hire and
tenure of employment of Mary Ann Schmidt, Cora Hensley, Paul Crombie, Elmer
Sievers, Alvin Riebold, and Jerome Jennewein by laying off or discharging them on
September 28 or October 1, 1954, the Trial Examiner will recommend that the
Respondent offer each of them immediate and full reinstatement to his former or,
substantially equivalent position, without prejudice to his seniority or other rights
and privileges, and make each of them whole for any loss of pay which he may
have suffered by reason of the discrimination as to him by payment to him of a
sum of money equal to that which he would have earned as wages from the date of
the discrimination against him to the date of the offer of reinstatement less,his net
earnings during such period, in accordance with the formula set forth in F. W.
Woolworth Company, 90 NLRB 289.
In the opinion of the Trial Examiner, the unfair labor practices committed by
the Respondent in the instant case are such as to indicate an attitude of opposition
to the purposes of the Act generally. In order, therefore, to make effective the
interdependent guarantees of Section 7 of the Act, thereby minimizing industrial
strife, which burdens and obstructs commerce, and thus effectuate the policies of the
Act, it will be recommended that the Respondent, cease and desist from infringing in
any manner upon the rights guaranteed' in Section 7 of the Act.
On the basis of the foregoing findings of fact, and upon the entire record, the Trial
Examiner makes the following:
CONCLUSIONS OF LAW
1. The international Brotherhood of Boilermakers, Iron Ship Builders, Black-
smiths, Forgers & Helpers, Lodge 1012, AFL, is a labor organization within the
meaning of Section 2 (5) of the Act.
2. By laying off or discharging Mary Ann Schmidt, Cora Hensley, Paul Crombie,
Elmer Sievers, Alvin Riebold, and Jerome Jennewein on September 28 or October
1, 1954, thus discriminating in regard to the hire and tenure of employment of said
employees and thereby discouraging membership in International Brotherhood of
Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers, Lodge 1012,
AFL, Respondent has engaged in and is engaging-in unfair labor practices within the
meaning of Section 8 (a) (3) and (1) of the Act.
3. By interrogating its employees and applicants for employment regarding their
membership and interest in the Union thereby interfering with, restraining, and
coercing its employees in the exercise of the rights guaranteed in Section 7 of the
Act, the Respondent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
William ° J. Tillman, Katherine Tillman, and William G Tillman,
a Partnership, d/b/a Tillman Furniture Company and Retail
Furniture and Appliance Salesmen's Union, Local No. 981,
Retail Clerks International ,Association, AFL. Case No. 9-CA-
895. November 16, 1955
DECISION AND ORDER
On August 19, 1955, Trial Examiner C. W. Whittemore issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
114 NLRB No. 166.
TILLMAN FURNITURE COMPANY 1007
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. The Trial Examiner also found
that the Respondent had not engaged in certain other alleged unfair
labor practices and recommended dismissal of these allegations of the
complaint. Thereafter, the Union filed exceptions to the Intermediate
Report and a supporting brief.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the Trial Examiner's findings, conclusions,
and recommendations.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent , William J. Tillman,
Katherine Tillman , and William C. Tillman, a Partnership, d/b/a
Tillman Furniture Company, Covington , Kentucky , and its officers,
agents, successors , and assigns, shall :
1. Cease and desist from :
(a) Interrogating its employees concerning their membership in.
or activities on behalf of , Retail Furniture and Appliance Salesmen's
Union , Local No. 981, Retail Clerks International Association, AFL,
or any other labor organization , in a manner constituting interference,
restraint , or coercion in violation of Section 8 (a) (1) of the Act.
(b) Threatening its employees with reprisals for engaging in union
activities.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Post at its store in Covington , Kentucky , copies of the notice
attached hereto marked "Appendix." ' Copies of said notice, to be
furnished by the Regional Director for the Ninth Region, shall, after
being signed by the Respondent 's representative , be, posted by the
Respondent immediately upon receipt thereof and maintained by it
for sixty ( 60) consecutive days thereafter in conspicuous places, in-
cluding all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other material.
(b) Notify the Regional Director for the Ninth Region in writing,
within ten ( 10) days from the date of this Order, what steps the
Respondent has taken to comply therewith.
1In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order," the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
1008 DECISIONS OF NATIONAL LABOR . RELATIONS BOARD
AND IT IS FURTHER ORDERED that the complaint be, and it hereby is,
dismissed, insofar as it alleges that the Respondent violated Section
8 (a) (3) of the Act.
MEMBER MURDOCK took no part in the consideration of the above
Decision and Order.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT interrogate our employees concerning their mem-
bership in, or activities on behalf of, Retail Furniture and Ap-
pliance Salesmen's Union, Local No. 981, Retail Clerks Inter-
national Association, AFL, or any other labor organization, in a
manner constituting interference, restraint, or coercion in viola-
tion of Section 8 (a) (1) of the Act.
WE WILL NOT threaten our employees with reprisals for en-
gaging in union activities.
All our employees are free to become, remain, or to refrain from
becoming or remaining members of the above- named Union, or any
other labor organization , except to the extent that this right may be
affected by an agreement authorized by Section 8 (a) (3) of the Act.
TILLMAN FURNITURE COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding , brought under Section 10 (b) of the National Labor Relations
Act, as amended , 61 Stat. 136, herein called the Act, was heard before a duly
designated Trial Examiner at Cincinnati , Ohio, on July 6 and 7, 1955, pursuant to
due notice to all parties . All parties were represented at the hearing and were
afforded full opportunity to be heard, to examine and cross-examine witnesses, to
introduce evidence relevant and material to the issues , to argue orally upon the record,
and to file briefs and proposed findings. Oral argument was waived. Briefs have
been filed with and considered by the Trial Examiner.
The complaint, issued by the General Counsel of the National Labor Relations
Board, the latter herein called the Board, alleges in substance that the above-named
Respondent Company: ( 1) On October 29, 1954, discriminatorily discharged em-
ployee George Veeneman because of his activities on behalf of the,Charging Union;
(2) interrogated employees in regard to their membership in the Charging Union;
and- (3 ) by such conduct interfered with , restrained, and coerced employees in the
exercise of rights guaranteed by Section 7 of the Act. In its answer the Respondent
denied these allegations.
TILLMAN FURNITURE COMPANY 1009
At the conclusion of the hearing the Trial Examiner reserved ruling upon a motion
by counsel for the Respondent to strike certain testimony of witness George Porcaro.
It is hereby denied . Ruling was also reserved upon a motion by the same counsel
to dismiss the complaint. Said motion is disposed of by the following findings, con-
clusions, and recommendations.
Upon the entire record in the case, and from his observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
William J. Tillman, Katherine Tillman, and William C. Tillman are copartners
of a partnership , doing business under the style and name of Tillman Furniture Com-
pany with office and principal place of business at Covington, Kentucky. The Re-
spondent is primarily engaged in the selling of household furniture and appliances.
During the calendar year 1954 the Respondent purchased and caused to be shipped
from points outside the State of Kentucky , to its place of business in Covington,
goods and materials of substantial value; and sold, shipped, and delivered goods and
materials valued at more than $100,000 from its place of business in Covington, di-
rectly to points outside the State of Kentucky.
The Respondent concedes, and it is found, that it is engaged in commerce within
the meaning of the Act.
It. THE LABOR ORGANIZATION INVOLVED
Retail Furniture and Appliance Salesmen's Union, Local No. 981, Retail Clerks
International Association, AFL, is a labor organization admitting to membership
employees of the Respondent.
HI. THE UNFAIR LABOR PRACTICES
The Respondent 's dismissal of Salesman George Veeneman on October 29, 1954,
is the major issue . Evidence and opposing contentions relating to it will be discussed
first.
The fact that Veeneman was let go is not disputed . Claims as to the motive or
motives leading to his termination are in sharp controversy . The one man , Tillman
senior, who could have testified as to what was in his mind when he decided to and
did fire Veeneman , was not called as a witness .' All testimony was elicited from
others and, at best, may be considered only as tending to reveal certain objective cir-
cumstances from which the most probable motive may be inferred.
All the evidence, including affidavits of the two partners introduced by General
Counsel, establishes that while Veeneman was discharged in the presence of his son,
William C. Tillman, the elder partner was solely responsible for the decision and the
action.
General Counsel claims that the employee was discharged because of his union
activities. Credible and undisputed testimony supports the finding that Veeneman
did engage in such activities 2 days before his dismissal . He obtained signatures
upon union membership application cards from his fellow salesmen while at work
in the store.
No witness, however, testified as to circumstances warranting a finding that either
Tillman saw, or learned about before the discharge, this card signing, or overheard
any union discussion among the salesmen. To provide ground for an inference,
essential to his case, that the employer had knowledge, belief, or suspicion of such
activities before the discharge, General Counsel relies upon other factors.
These factors include events both before and'after the dismissal. Thus it is undis-
puted that on 3 occasions, ranging from 6 to 2'/2 years before the hearing, Tillman
senior declined to sign a union agreement upon demand of George Porcaro, a union
representative. General Counsel would have the Trial Examiner find, in effect, that
Tillman's refusal establishes hostility toward the Union and, derivatively, toward any
employee trying to organize. The facts require neither conclusion. Porcaro admitted
that his organization, at the times of demand, represented no employee of Tillman.
Had Tillman signed a contract, forcing his employees into a labor organization not of
their choosing, he would have violated the Act. It therefore seems as reasonable,
from the above situation, to infer that Tillman was predisposed to abide by the Act,
'Counsel for the Respondent stated that Tillman was not being called upon advice of
his doctor
10111 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as to conclude that he possessed any deep-seated intent to infringe upon rights guar-
anteed employees by it . Alternate inferences being equally possible, the Trial Ex-
aminer concludes that the refusal to deal with the Union , under the circumstances
described , is insufficient evidence to establish hostility toward the Union or toward
self-organization of the employees.
Another factor bearing upon Tillman 's motive in dismissing Veeneman consisted
of remarks , attributed by the latter to Tillman senior, and claimed to have been made
at various times between 1952 and early 1954 . As the record stands-containing no
specific denial by Tillman as a witness-it would appear that in November 1952, the
employee was told flatly that "if you join the Union you can't work for me." Had
this threat actually been made, it would at least remotely support a finding of con-
tinued hostility toward self-organization in 1954 , and permit an inference of continued
intent to discriminate in violation of the Act. Despite the lack of contradiction in the
record , however , the Trial Examiner is far from convinced that Veeneman 's quotation
is accurate . In the first place, had so simple and direct a threat been made to him, it
is reasonable to believe that during the prehearing investigation of the case the em-
ployee would have revealed it to some Board agent and that General Counsel would
have called for testimony about it during his case-in -chief . Yet on direct examination
no questions were asked him about any such remarks ? On redirect , when the em-
ployee was asked specifically to relate any conversations he had had with Tillman
senior about the Union, his version of this 1952 remark was different from that quoted
above, which finally emerged on recross examination . On redirect, Veeneman said
that in a conversation with Tillman concerning the rumor of union organization the
Employer asked him how he felt about it, and that when he replied that he would do
what the others did, Tillman commented, "Well, you can't work for the Union and
work for me," whereupon he had replied, "Well, as long as I am working for Tillman,
I am for Tillman ." On recross , after substantially repeating his previous testimony
on the point, and although such testimony had contained no direct reference to "join-
ing," he was asked by counsel for the Respondent:
Q. He said if the men joined the Union he would what?
It was not until then that Veeneman testified:
A He said, "If you will join the Union-if you join the Union-you can't
work for me."
Because of the circumstances, above described , and because of his observation of
Veeneman as he testified on this matter, the Trial Examiner is unable to believe that
Tillman uttered any threat, real or implied, to discharge Veeneman or any other em-
ployee, if they joined the Union.3 The only other instance related in detail by Veene-
man, as to conversations with Tillman about the Union-although he said he had had
several-is to the effect that in early 1954, he,'himself , called Tillman 's attention to
a union sign at the store of another dealer across the street and reminded his Employer
that he had said he would "sign up" with the Union if that dealer did. Veeneman
quoted Tillman as replying : "That is Mr . Ostrow's business . What I want to do is my
business And before I go into the Union I will close the door." In view of Porcaro's
testimony that he had sought not to organize employees, but employers, Veeneman's
version of the 1954 incident , even if believed , is open to different interpretations. In
any event it does not soundly establish, in the opinion of the Trial Examiner, hostility
toward self-organization among employees.
Relative to the factor of employer knowledge, the record provides evidence that:
(1) About or shortly after noon on October 27 Veeneman was in a tavern or cafe
drinking with 2 union representatives; (2) that when the 3 came out Veeneman and 1
representative saw Tillman across the street; and (3) that before they came out Till-
man saw Veeneman in the cafe "taking a drink of beer," according to Tillman's affi-
davit to a Board agent and introduced in evidence by General Counsel. Accepting
Tillman 's statement as true, to the effect that he saw the employee inside the tavern,
2It is possible, of course, that failure to query Veeneman on this point during direct
was an inadvertent oversight on General Counsel's part Even in this event the credibility
finding would not be altered The circumstance is noted, but is not determinative.
9 Nor can the Trial Examiner oveilook the fact that 2 of the 3 other salesmen called as
witnesses by General Counsel flatly denied that Tillman senior had had any conversation
with them about the Union in 1952, and the third was not questioned on the subject.
The two denials contradict Veeneman's testimony: "He had talked to the rest of them,
first, and then lie got me on the end, see?" in reference to his claimed conversation
Nor is there any evidence in the record to show that there was any organizing effort in
November 1952 which might have given rise to any such conversation.
TILLMAN FURNITURE COMPANY 1011
it is reasonable to consider Veeneman's testimony as equally true that when he came
out Tillman was looking at him. And the inference is reasonable that if he recognized,
him inside, he also recognized him outside on the street. It does not follow, however,
that even if Tillman also recognized Porcaro, a not infrequent visitor according to his
own testimony in this neighborhood and at Tillman's store, that the Employer con-
strued the occurrence as one indicating organizational activity on the part of the
employee. As described more fully below, Veeneman visited this tavern often during
the day. Had Tillman been particularly disturbed by seeing him in Porcaro's com-
pany, it is reasonable to believe that he-being the highly excitable person all wit-
nesses, including his own son, described him to be-would have wasted no time or
words in confronting the salesman with his thoughts. General Counsel specifically
disclaimed any wish to have it found that Tillman was engaged in illegal surveillance
on this occasion. Under these circumstances the Trial Examiner is unable to conclude
(particularly in view of another event, occurring the next afternoon and just before
the discharge, described below) that Tillman gained either knowledge or suspicion on
October 27, of the employees' union activities, from seeing him in Porcaro's presence.
In summary, the evidence is insufficient to support findings as to any action, or
utterance, by Tillman senior before the discharge of Veeneman from which it must
follow that he knew, or believed, the employee had had cards signed on October 27
or that he intended to discharge any employee engaging in such activities.
The dismissal and later events
Upon reporting for work Friday morning, October 29, the day before his regular
payday, Veeneman was called to the back of the store by Tillman senior and, in the
presence of the younger partner, summarily discharged. In substance details of
the final interview were as follows: 4 The elder Tillman told the employee that
they were going to have to let him go because: (1) they had decided to reduce
the sales force by 1, there not being enough work for 3 full-time salesmen; (2) of
lack of harmony among them; and (3) of the salesmen's complaints of not enough
customers to go around. Veeneman protested that he should not be selected since
he had seniority, and named another with less service who should be chosen for lay-
off. Tillman replied that seniority was not involved, and asserted that it was a
question of sales records and Veeneman's sales records had been lowest all along.
Veeneman then asked about notice and a Christmas bonus. He was told then he
would be given a week's pay in lieu of notice and that if he were not employed there
at Christmas he would not receive a bonus. He was also told he would be given
a recommendation in seeking other work, and might be called back. As the em-
ployee left Tillman added that a customer had complained about liquor on his breath,
and his son agreed.
At the time of the hearing Veeneman had not been recalled and no other person
had been hired in his place.
The foregoing findings as to the discharge interview reveal no statement by either
Tillman indicating knowledge or suspicion on their part that 2 days earlier Veene-
man had distributed union cards. (The Trial Examiner specifically does not believe
Veeneman's testimony to the effect that the elder Tillman remarked, upon firing
him, that there was "something going on around here" he didn't like but would not
tell him what it was. Veeneman's attributing this remark to Tillman was, in the
opinion of the Trial Examiner, a gratuitous effort to color the interview. On
cross-examination the employee admitted having been told that the primary reason
he was being let go was reduction in force and his low sales record-an item which
he had significantly omitted in his direct examination although being specifically
asked by General Counsel if his preceding account was "the extent of the con-
versation.")
After the discharge, however, both partners interviewed the other salesmen,
and their interrogations were of a nature permitting a not unreasonable inference,
in the absence of other explanation, that management had been aware of, or sus-
pected, some union activity before the discharge, which would provide some sup-
port for a further inference that motivation for the act was as General Counsel
claims.
In substance, these material events were as follows:
On October 29, after the discharge, the younger Tillman called Salesman Lauter-
bach to an upper floor of the store and among other questions asked him if he had
signed a union application, stating that he had heard some union talk.
4 The findings as to this interview are based upon what the Trial Examiner considers
to be the credible portions of the testimony of Veeneman and the younger Tillman.
387644-56-vol. 114-65
1012 DECISIONS-,OF', NATIONAL-,LABOR RELATIONS BOARD
On'November 1, the Monday following the discharge ,"during , working hours Tin-
man senior told Part-time Salesman Hartman that he had heard "we were trying
to organize the store ," according to the employee 's testimony , and asked him if he
had joined or intended to join . When the salesman replied that he had not signed„
and did not know whether he would, Tillman said that the Union would not be a
good thing for the type of operation in the store.
Also on November 1, after working hours, while Lauterbach, Hudson, and Hart-
man were at the tavern bar above identified, in company with the union representa-
tive, Porcaro, and Veeneman, Tillman senior came in and asked them to return to
the store. Upon arriving there Tillman told the three salesmen that he "would not
have a union in the store, that he would sell out first," to quote Salesman Hudson.5
He then asked the employees if they had joined: They said they had signed appli-
cations but were not dues paying members.
As suggested above, the interrogation by both Tillmans and the elder partner's
threat to close the store are persuasive indicia that management somehow learned
of Veeneman's union activity before the discharge and dismissed him because of it.
Both Tillmans displayed concern about self-organization among the remaining sales-
men, and with no intervening event otherwise explaining such concern it would be-
reasonable to infer that Veeneman's activity had aroused it, since there is no evi-
dence that any other employee had passed out cards. In the opinion of the Trial
Examiner, however, the record reveals other events which, if not fully explaining
subsequent acts, at least deprive the inference as to illegal motivation of any logical
compulsion.
The younger Tillman's testimony has support in his father's affidavit to the effect
that both partners were first prdmpted to suspect self-organization among the sales-
men by Veeneman's vigorous protest, upon being told he was through, that his senior-
ity should protect him. Realizing that seniority is a provision commonly sought by
unions, young Tillman said, their suspicions were thus aroused and he thereafter in-
terrogated Lauterbach the same day. There can be no question that Veeneman
did raise the seniority point-he emphasized the fact in his testimony. As such it
was an event immediately preceding the first interrogation of employees by Tillman
junior.
And the most immediately preceding events of a union character before the elder
Tillman's interrogation of the three men on Monday, November 1, were: (1) A
telephone call of a union representative to the store earlier that day (young Till-
man's affidavit, introduced by General Counsel, refers to a telephone call from
Porcaro inquiring about Veeneman's discharge); and (2) the elder Tillman's
observation of his employees in the company of union representatives at the nearby
bar before he called them back to the store.
Only by inference, even in subjective confession, may one conclude that a known
effect stems from a certain cause. Here, as the Trial Examiner interprets General
Counsel's argument , he would have it inferred that the known effect-the interroga-
tion of the salesmen-must have been the result , partly at least , of management's
knowledge of Veeneman's union activity before the discharge. It appears that this
would be an unnecessary and arbitrary exercise of speculation. As noted before,
there is no credible evidence of company knowledge before the discharge. There is
substantial evidence of events both during and after the discharge which, in the
opinion of the Trial Examiner, may well have caused management's concern as ex-
pressed in its interrogations.
In short, the Trial Examiner is not convinced that events after the discharge were so
unreasonably explained as to make it logically mandatory to find that another
explanation-company knowledge or suspicion of Veeneman's activity-must have
existed before the discharge. '
In the absence of a finding of company knowledge or suspicion before the event
at issue, the allegation of a discriminatory discharge must fall.
Nor is the record without credible evidence indicating that the facts to support
the reasons given Veeneman at the time of his dismissal actually existed, whether
such reasons were the real motivation or not. Company records were introduced
showing that he was the low man in sales. The sales force was in fact reduced by
one-no one has been hired to take his place. After being pressed on cross-
examination, Veeneman finally admitted having been previously warned about his
mistakes, his forgetfulness, and his frequent visits to the nearby bar. And the
younger Tillman's testimony, while not at all points consistent or in agreement with
5 The quotation is from Hudson's affidavit to a Board agent, which he said at the
hearing set forth the truth. Hudson was a most reluctant witness on this point, obviously
hesitant to testify thus against his Employer. ,
3Y'TILLMAN FURNITURE COMPANY 101
his father's affidavit , nevertheless does agree that for a considerable period before:
October 29 only his intervention had prevented his father from discharging the.
salesman long before that date.
The Trial Examiner does not specifically find; however , that the elder Tillman
actually fired Veeneman , early the morning of October 29, because the long accumu-
lation of derelictions had become unbearable , as the younger Tillman in effect
declared . The timing of the dismissal-the day before regular payday without
previous notice-reasonably requires a more immediately precipitating motive, as.
General Counsel argues. The testimony of young Tillman fails to reveal anything,
convincing . But the elder partner's affidavit contains a significant possibility which
neither counsel touched upon at the hearing , and no witness testified about. Despite
counsel for the Respondent 's objection to its introduction , this document reveals a
point most favorable to his case . The relevant part reads as follows:
As near. as I can recall, on the two days previous to his discharge , I had also
seen him in Greisler's Cafe in the afternoons taking a drink of beer. On one
of these occasions ( the last one ) he looked out at me standing outside looking
in and laughed at me. This made me angry and I decided at that time to let
him go.
Later in the same affidavit:
In looking back, I have figured that might have been the reason that he was
so fresh with me, the day before he was discharged , [ sic] when he was drinking
openly in the cafe , and just laughed at me.
Anger is an emotion likely to precipitate action of a retaliatory nature, particularly
on the part of a man as excitable as all parties urge the Trial Examiner to believe
he was. His son had been away on a trip for the preceding few days and upon his
return to the store the next morning-it is established that he did not come back
that afternoon-he promptly dismissed Veeneman . Under the circumstances de-
picted by undisputed testimony and by the admissions of Veeneman himself, the
statements in the elder Tillman's affidavit appear to provide the most reasonable
motive suggested by the entire record-for the sudden dismissal . The Trial Ex-
aminer realizes, of course, that had Tillman senior been called as a witness, his
testimony might have varied from affidavit , or might have been broken down by
cross-examination . Reasonable and logical enough as it stands, the motive as ad-
vanced in the affidavit has not withstood the test of such examination and thus lacks
full weight . In the opinion of the Trial Examiner it is unnecessary , however, to
find as a fact that Veeneman , having a long record of unsatisfactory service, was
finally discharged because he laughed at his Employer while in the tavern the day
before the dismissal.
The burden in this case was upon General Counsel to prove a discriminatory
motive. This burden , in the opinion of the Trial Examiner , has not been met by a
preponderance of the evidence . It will therefore be recommended that allegations
in the complaint as to Veeneman be dismissed.
On the other hand , credible and substantial evidence shows that the remaining
salesmen were, shortly after Veeneman 's dismissal , subjected not only to individual
interrogation but also to the threat of economic reprisal . Here the Employer has
no extenuating excuse for such interrogation. The Respondent does not claim that
it sought thereby to ascertain whether or not the Union actually represented a ma-
jority. The facts outlined above show that the purpose of the questioning was to
discourage organization and, accompanied by the threat to close the store, was
coercive . Although an employer may have a legal right to go out of business at any
time, the Act does not permit him to threaten such an expedient in order to dis-
courage the exercise of the employees ' legal rights . The threat was not isolated. It
was uttered to all assembled salesmen. The interrogation was not isolated. It oc-
curred at the same interview as the threat.
The Trial Examiner concludes and finds that the Respondent , by the threat of
economic reprisal and the interrogation of its employees as above described , i nter-
fered with , restrained , and coerced its employees in the exercise of rights guaranteed
by the Act. (Blue Flash Express, Inc., 109 NLRB 591; also Gruber Manufacturing
Company, Inc., 111 NLRB 167.)
IV. 'THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close, intimate, and substantial relation to trade, traffic , and commerce among the
1014, , DECISIONS OF NATIONAL LABOR RELATIONS BOARD
several States , and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices
affecting commerce , the Trial Examiner will recommend that it cease and desist there-
from and take affirmative action designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Retail Furniture and Appliance Salesmen's Union, Local No. 981, Retail Clerks
International Association, AFL, is a labor organization within the meaning of
Section 2 (5) of the Act.
2. By interfering with, restraining , and coercing employees in the exercise of rights
guaranteed by Section 7 of the Act, the Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2 (6) and (7) of the Act.
4. 1 he preponderance of evidence does not sustain the allegations of the complaint
that the Respondent has engaged in unfair labor practices within the meaning of
Section 8 (a) (3) of the Act.
[Recommendations omitted from publication.]
H. H. Erikson and Erik E . Erikson , Co-partners, d/b/a Detroit
Plastic Products Company and Rosella Katulski . Case No.
7-CA-1157. November 16, 1955
DECISION AND ORDER
On April 19, 1955, Trial Examiner James A. Shaw issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. The Trial Examiner further found
that the Respondent had not engaged in certain other unfair labor
practices alleged in the complaint and recommended dismissal of
those allegations. Thereafter, the General Counsel and the Respond-
ent filed exceptions to the Intermediate Report and supporting briefs.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the exceptions and the briefs, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
114 NLRB No. 163.