Crossroads Furniture

National Labor Relations Board - Board Decisions

Jan 31, 1991

301 N.L.R.B. 520 (N.L.R.B. 1991)

520
301 NLRB No. 74
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 In affirming the judge’s finding that the Respondent discharged Robert
Brock in violation of Sec. 8(a)(1) of the Act, we do not adopt his finding that
the Respondent singled out Rafael Lopez-Cepero because of his exercise of
protected concerted activities. We agree with the judge, however, that the cred-
ited testimony of Craig J. Crowley, concerning remarks made to him by Store
Manager Ken Collier in February or March 1989, tends to show that the Re-
spondent looked with disfavor on employees perceived to be actively involved
in the exercise of protected concerted activities and therefore establishes ani-
mus that we can take into account in determining the motive for Brock’s dis-
charge. Thus, Crowley credibly testified that Collier urged him to reconsider
his employment with the Respondent and criticized Crowley for allegedly in-
fluencing new employees and being a ‘‘leader’’ and ‘‘organizer’’ of employees
having complaints about working conditions.
At the first paragraph of sec. II,E of his decision, the judge inadvertently
found that the complaint pertained to the exercise of union activities. The com-
plaint alleges that Brock was disciplined for the exercise of protected con-
certed activities.
Rhodes Furniture, Inc. d/b/a Crossroads Furniture
and Robert Brock. Case 14–CA–20360
January 31, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND RAUDABAUGH
On July 13, 1990, Administrative Law Judge George
F. McInerny issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order as modi-
fied.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent,
Rhodes Furniture, Inc. d/b/a Crossroads Furniture, St.
Louis, Missouri, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order as
modified.
1. Insert the following as paragraph 2(c) and letter
subsequent paragraphs.
‘‘(c) Remove from its files any reference to the dis-
charge of Robert Brock on October 2, 1989, and ad-
vise him in writing that this has been done and that
no evidence of his unlawful discharge will be used as
a basis for future personnel action against him in any
way.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the NationalLabor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT discharge employees as a result of
their protected concerted activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
rights guaranteed them by Section 7 of the National
Labor Relations Act.
WE WILL offer full reinstatement of Robert Brock to
his former job or, if that job no longer exists, to a sub-
stantially equivalent position, without prejudice to his
seniority or any other rights or privileges, and WE WILL
make him whole for any loss of earnings and other
benefits he may have suffered because of our discrimi-
nation against him, plus interest.
WE WILL remove from our files any references to
the discharge of Robert Brock and notify him in writ-
ing that this has been done and that evidence of his
unlawful discharge will not be used as a basis for fu-
ture personnel action against him in any way.
RHODES FURNITURE, INC. D/B/A CROSS-
ROADS FURNITURE
Tina R. O’Brien, Esq. and Robert Siegel, Esq., for the Gen-
eral Counsel.
Douglas R. Sullenberger, Esq. and Andria T. Lure, Esq.
(Fisher & Phillips), of Atlanta, Georgia, for the Respond-
ent.
Robert Brock, of Florissant, Missouri, appearing pro se.
DECISION
GEORGE F. MCINERNY, Administrative Law Judge. Based
on a charge filed on October 6, 1989, by Robert Brock, an
Individual, the Regional Director for Region 14 of the Na-
tional Labor Relations Board, herein referred to, respectively,
as the Regional Director and the Board issued a complaint
on December 1, 1989, alleging that Rhodes Furniture, Inc.,
doing business as Crossroads Furniture (the Company or Re-
spondent), had violated the provisions of the National Labor
521CROSSROADS FURNITURE
1 Late in 1988 Rhodes was taken over by the Holcomb Green organization.
All of its stock was acquired by Holcomb Green and this company is now
privately held. The takeover does not appear to have influenced the events in
this case other than in increased pressure for sales and profits.
2 I recall that this witness spelled his name ‘‘Welsch,’’ but since the record
refers to Welch, I will use that spelling throughout.
3 In August and September 1989, there was a petition filed with the Board
on behalf of employees in the warehouse at the Hazelwood store. According
to Brock, there were visits by management people from Atlanta to the store
during this period, but none of these people were specifically identified. The
petition was withdrawn, however, and no election was held. There is no evi-
dence linking this activity with the actions of Brock and his coworkers in the
same time period.
Relations Act (the Act), by discharging employee Robert
Brock because he engaged in activities protected under Sec-
tions 7 and 8(a)(1) of the Act. The Respondent filed a timely
answer in which it denied the commission of any unfair labor
practices.
Pursuant to notice, a hearing was held before me in St.
Louis, Missouri, on March 6, 1990, at which all parties were
represented, and had the opportunity to present testimony and
documentary evidence, to examine and cross-examine wit-
nesses, and to argue orally. Following the conclusion of the
hearing the General Counsel and Respondent submitted
briefs, which have been carefully considered.
Based on the entire record in this case, including my ob-
servations of the witnesses and their demeanor, I make the
following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a corporation with an office and store lo-
cated in Hazelwood, Missouri, where it is engaged in the re-
tail sale of furniture. During the 12-month period ending No-
vember 30, 1989, it derived gross revenues in excess of
$500,000, and received at its Hazelwood location products,
goods, and materials valued at more than $50,000 directly
from points outside the State of Missouri.
The complaint alleges, the answer admits, and I find that
the Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Rhodes Furniture operates approximately 72 stores and 5
warehouses throughout the Southern and Midwestern United
States, from its headquarters in Atlanta, Georgia. There are
four stores in the St. Louis area, the largest being the Hazel-
wood store, the only location involved in this case.
The president and chief executive officer of Rhodes for 13
years has been Irwin Lowenstein.1 Before assuming those ti-
tles Lowenstein had been senior vice president of Rhodes, in
charge of the Crossroads operations.
In the fall of 1988, the Company became concerned with
the pace of sales at the Hazelwood store. A new area man-
ager, James A. Welch, was appointed.2 Welch in turn de-
cided to replace the Hazelwood store manager, Dick Marram,
and transferred him to another location, bringing in a new
manager, Ken Collier. At the same time Welch and Collier
began implementing company programs involving additional
paperwork, additional working time, and a different method
of assignment of salespeople to customers, all of which were
burdensome and annoying to the 18 to 22 salespeople at Ha-
zelwood, and generated murmuring and complaints from the
sale force to management during 1989. The complaints met
with responses from management such as ‘‘it’s company pol-
icy’’ or ‘‘this is the way it is going to be done,’’ naturally
leaving the matters unresolved.
B. Concerted Activities
Robert Brock had worked for the Company in the period
1981 to 1983, then left voluntarily. He returned in August
1988 after being rehired by Dick Marram. Brock, like the
other salespeople, was concerned and upset by the changes
which began with the arrival of Welch and Collier in No-
vember and December 1988. Indeed, Brock spent sometime
beginning in August 1989 preparing a list of 24 grievances,
some derived from his own experience, and others from dis-
cussions with fellow employees. This list, however, was
never given to anyone from management.3 Brock did testify
that he discussed grievances with other employees, and this
testimony was corroborated by another salesman, Rafael
Lopez-Cepero.
Brock and Lopez-Cepero both testified that they wanted to
arrange a meeting between the salespeople and Irwin
Lowenstein. They were put off by evasive and exculpatory
responses to their grievances by local management, and they
liked and trusted Lowenstein because of their long experi-
ence with him. To accomplish this, several employees met
with Corporate Director of Personnel John M. Terre on Au-
gust 30, 1989. The salespeople at this meeting were Gary
Capechni, Rebecca McDonnell, Joannie Zimmel, Lopez-
Cepero, and, arriving about 7 or 8 minutes late, Brock. These
employees advised Terre that they had ‘‘formed together as
a group within the sales department and they would like to
meet with Irwin Lowenstein privately to address some griev-
ances that we had.’’
The major grievances involved the Company’s practice in
handling customers, called the ‘‘up’’ system. This required
all the salespeople working on the floor to sign up at the be-
ginning of their shift and be assigned numbers. They were
then required to greet persons coming through the door, in
numerical order. Whatever happened then, whether the per-
sons greeted by a salesperson were buyers, just lookers,
browsers, or whether they came in only to make a payment
on a bill or a layaway, this was the salesperson’s customer,
and after dealing with the person he or she would go to the
bottom of the list. While the ‘‘up’’ system may have been
designed to be fair to all the employees, since all took the
same chances of encountering a bill payer or a browser walk-
ing in and out of the store, the salespeople were upset by it.
The second major problem was the increase in time spent
at daily sales meetings. Meetings had been scheduled for
one-half hour everyday when Brock began in August 1988,
but later that year then had been lengthened to a whole hour.
Since the salespeople worked on commission only, this was
all uncompensated time.
There were other grievances, on scheduling, on the re-
quirement that salespeople wear costumes or peculiar dress
for special sales, as well as numerous others things compiled
522 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 A letter dated August 30, addressed to John Torre and signed by 12 people
was introduced into evidence, but the record shows that this document was
never given to Torre or any other representative of management. Like Brock’s
list of grievances, the letter is evidence of concerted activity by Brock and
others, but cannot be considered as showing company knowledge of those ac-
tivities.
5 Brock had a tendency to exaggerate, and to stray from the issues into his
views and impressions of the facts. I have tried to pare away the excesses in
his testimony, and, confining myself just to the facts, particularly, as here,
where his version was corroborated by Lopez-Cepero, a credible witness, I
find that Brock was generally a credible witness. I, therefore, credit Brock’s
statement that he told Torre that he had contacted the Board about the griev-
ances, and that they had a letter with signatures of more than 50 percent of
the sales force.
6 Two employees, Sullivan and Ford, were involved in this conduct. At the
time of this hearing Sullivan was still employed and Ford had been promoted
to a supervisory position.
7 Brock described this visit as occurring in late September, but I think his
memory may have been faulty on the date. It is more probable that the date
was more accurately recollected by Lowenstein’s reference to his appointment
diary, even though that fact was not adduced on the record.
8 Brock recalled the time as 5 p.m. but on cross-examination agreed that it
could have been as late as 8:30.
on Brock’s list. The ‘‘up’’ system, the long meetings, and
scheduling were, apparently, the most important.
At the August 30 meeting with Torre Brock came in while
Lopez-Cepero and Zimmel were discussing the ‘‘up’’ system.
Brock joined in their assertions that the system was unfair,
adding that the salespeople were concerned about their jobs
because of high turnover and the changes going on in the
store. He testified that he then told Torre that he ‘‘had called
the Labor Board on two occasions, and that we had as a
group forced together and written a letter and had signed the
letter.’’4 He went on to ‘‘advise Mr. Torre that—we had over
50 percent signatures on a letter, and that we wanted to meet
privately with Irwin Lowenstein to express our grievances.’’
Lopez-Cepero’s testimony was consistent with Brock’s on
the calls to the National Labor Relations Board and the re-
quest for the private meeting with Lowenstein. Torre agreed
that they discussed grievances at the meeting, and that the
employees wanted to set up a meeting with Lowenstein, but
he did not recall specifically any reference to the Board. I
found this last response to be equivocal and evasive. It is my
view that Brock did say he had called the Board, but Torre
chose not to remember this at the hearing.5
The meeting was, in the words of Lopez-Cepero, ‘‘cor-
dial’’ and at its conclusion Torre agreed that he would try
to set up a meeting between the employees and Lowenstein.
However, it so happened that on the next day a meeting had
been scheduled to be attended by Corporate Vice President
for Operations Joel Lanham. Torre told Lanham about his
meeting with the salespeople and Lanham told him he would
take care of the matter. Accordingly, after the sales meeting
ended on the next day, August 31, Lanham dismissed the
local management people, and he conducted a grievance
meeting with the salespeople. There was some spirited dis-
cussion by a number of employees, one or two of whom be-
came excited and loud.6 Both Lopez-Cepero and Brock were
unhappy with the way the meeting was conducted, but it
went on, and at the conclusion of the meeting it appeared
that the problems with the ‘‘up’’ system, and with the hour-
long sales meetings, were solved. The ‘‘up’’ system was
changed so that salespeople were not charged with an ‘‘up’’
when they encountered bill payers, and the meetings were re-
duced to one-half an hour.
There is no question in this record that the complaints
quieted down after this meeting. Store Manager Ken Collier
testified that he also took steps to correct problems in sched-
uling by soliciting the desires of all the salespeople on their
schedules and by adjusting the schedules so that in fact, all
requests were accommodated. Welch testified that, a couple
of days after the meeting he asked Brock how things were
going and Brock assured him that ‘‘everything is great—
We’ve got everything worked out—we like Ken, Ken’s
doing a good job.’’
Soon after the August 31 meeting, Brock did have an op-
portunity to meet with Company President Irwin Lowenstein.
The latter made what he described as a ‘‘regular,’’ ‘‘normal’’
visit to the store on September 6,7 talking to Welch, Collier,
and Lanham, who was there also. As was his custom on
these ‘‘regular’’ visits, after finishing his business with the
managers, and before he had to get his flight back to Atlanta,
Lowenstein made arrangements to talk privately to any em-
ployees who wished to meet with him, and to discuss prob-
lems or anything else they wanted to talk about. Brock, to-
gether with another employee, Dean Manafee, met with
Lowenstein in Welch’s office. According to Brock,
Lowenstein began by saying that the meeting had to be quick
because he had to catch a flight. He then talked about how
great it was to work for this company, and asked what they
thought of Collier. Brock, according to Lowenstein’s version
of the conversation, wanted him to know that they supported
Collier and that things were going pretty well.
Brock did not deny this, but he did say that he told
Lowenstein that ‘‘they were just trying to organize in the
best interests of themselves, as well as the store.’’ At that
point Manafee began to talk about his own capabilities as a
salesman. Lowenstein kept looking at his watch, and finally
said to Brock ‘‘don’t think for a moment that I don’t know
who the five people were in Mr. Torre’s office that day, be-
cause I have their names right here,’’ and he pointed to his
briefcase. Nothing further was said, and Lowenstein left.
Lowenstein admitted that he was aware of the Torre meet-
ing, and that he would have known who the people were
who met with Torre. But when he was asked whether he
made the statement attributed to him by Brock, he first said
that he did not recall making such a statement, then said that
if someone had asked him if he knew who met with Torre,
Torre would have told him at the time. Then he said he did
not make the statement, but in the game breath, said that ‘‘If
that statement was made, it was made in that context.’’
All of this, whatever the last sentence quoted above
means, indicates to me that Lowenstein did say what Brock
said he did. My impression of Lowenstein was that he is an
honorable man, and one to whom lying would come hard.
But I think he was aware that the statement attributed to him
was damaging, and in his shifting and evasive responses to
his own counsel’s questions, he avoided the lie, but im-
planted a doubt in my mind as to his candor in this matter.
Thus, I believe Brock’s version of the incident.
C. The September 29 Incident
On September 29, in the evening8 Brock was in the ‘‘up’’
position near the customers’ entrance to the store. A woman
came in and he moved forward to greet her and ask if there
523CROSSROADS FURNITURE
9 Brock mentioned that this customer was walking ‘‘very fast’’ and seemed
‘‘upset.’’ In view of what occurred, however, I do not believe that the cus-
tomer’s humor is relevant to the issues.
10 The customer was later identified in the record, but she did not testify.
The only other witness to the confrontation, salesperson James R. Noll, testi-
fied in basic agreement with Brock’s version.
11 He had also worked on September 30 and October 1 without there being
any reference to the incident.
12 I note that the Company introduced evidence that they lost a large sale
because of this incident. Such evidence is really irrelevant since Brock was
fired before the Company was aware of the lost sales.
13 The Respondent attempted to put in evidence through John Torre as to
action taken against an employee at another company store. I did not permit
this on the ground that the underlying documentation for such action was not
available. I reaffirm that ruling.
was something to which he could direct her.9 As Brock ex-
plained, it was the salesperson’s obligation to greet the cus-
tomer and to determine ‘‘in those first few seconds’’ the cus-
tomer’s purpose in coming into the store. The ‘‘up’’ proce-
dure is to ask four or five questions to see whether the cus-
tomer is a legitimate prospect or whether she has come in
merely to check on something she had seen in a previous
visit or whether she needs to be referred to the cashier, the
manager, customer service, or to another salesperson. In this
instance, when Brock asked if she wanted to be directed, she
replied that she was working with someone else—that she
knew that that person was not there that day—and that she
had no time.
If, as Brock testified, the woman was walking quickly, ap-
peared upset, and seemed unequivocal that she did not want
his help. Brock would have been wiser to let her go, and
wait for his next turn in the ‘‘up’’ position. He did not, how-
ever, and persisted in asking for the name of the salesperson
with whom the customer had talked. The woman then
stopped, turned, and ‘‘yelled’’10 at Brock, stating that the
salesperson’s name was Pam and that she, the customer, was
in a hurry and that she did not have time for him. Brock then
replied, as he put it ‘‘lightheartedly,’’ ‘‘Madam, if you don’t
have time for me, I don’t have time for you.’’
The customer then walked away, but soon came back with
salesperson Jim Noll. According to Noll, she approached him
and asked who was the salesperson with whom she had just
been speaking. Noll directed her to Brock. She asked Brock
for his name, and he answered that his name was Robert
Brock. She asked how to spell it and he replied that his
name was ‘‘Robert Brock B-R-O-C-K’’ and he held out his
name tag which was pinned to his jacket so she could read
it. Brock insisted that he remained calm in this last conversa-
tion, but Noll described Brock’s tone of voice as ‘‘obnox-
ious.’’ Both of these descriptions could have been correct.
One can be calm but speak nevertheless in a voice heavy
with sarcasm and loathing.
In any event, the customer went to the rear of the store
and asked Ken Collier if she could speak with the manager.
Collier identified himself as the manager. She told her story,
which, according to notes made at the time by Collier and
entered into evidence here, is not substantially different from
the same story related by Noll and by Brock.
After Collier had talked to the customer and attempted to
mollify her, she left and he called Brock into his office. He
told him that they had a ‘‘big problem’’ and that he had a
complaint that he had been rude to a customer. Brock denied
that he was rude, and the matter apparently rested there for
a time.
On September 30, Collier talked to Noll and obtained his
version of the incident. He then conferred with Welch, and
the two of them decided to discharge Brock. On October 2,
at the end of his shift,11 Brock was called in to Collier’s of-
fice and told that Welch and Collier had determined to fire
him. Brock tried to see Welch, but he was not in, then called
Torre in Atlanta. Torre apparently knew nothing about the
situation, but promised that Welch would get back to Brock.
This never happened.12
D. Company Rules and Practice
The position of the Company is clear. Brock was fired be-
cause he was rude to a customer. The General Counsel ar-
gues that despite this the Company’s practice was not only
not to fire salespeople for this sort of thing, but not even to
discipline or warn them against such conduct.
The Company’s formal rules are not much help in deter-
mining its practice in these matters. A copy of a six-page
document entitled ‘‘Sale Floor Rules and Responsibilities’’
was placed in evidence. The rules talk about tardiness, proper
maintenance of timecards, sleeping, fighting, drinking, smok-
ing, eating, reading, false representations, and ‘‘stealing’’ of
customers, but nowhere is rudeness specifically mentioned as
a cause for reprimand, warning, or termination. In section 10,
however, marked ‘‘The Customer comes first!!!,’’ there is an
example of what could be described as rudeness to a cus-
tomer, followed by the statement ‘‘goodbye customer, good-
bye future sales, goodbye salesperson.’’
If this last quoted portion of the rules was intended to
show what happened to salespeople who were rude to cus-
tomers it was not accurate. Brock testified that it was never
the Company’s practice to discharge or discipline employees
for rudeness to customers. He did say that when a complaint
came in, and he said he was not aware of any salesperson
who had not had a complaint of some sort registered against
her or him, the manager handled it, either by offering a dis-
count to the injured party or sending a letter of apology or
having the salesperson call to apologize. He recalled no one
being fired on account of a customer complaint. Brock testi-
fied that after the transfer of Welch and Collier to the store,
and the beginning of more serious efforts to improve sales,
there was no change, nor any bulletins nor rules announcing
changes in the policy respecting rudeness to customers.
Craig J. Crowley, a former salesman with 14-1/2 years ex-
perience at the store, testified about an incident in February
1988, during which he was not only rude to a customer, but
grossly insulting. Rick Marram, who was the manager at that
time, told Crowley not to worry and ‘‘that was it—no warn-
ing, no letter, no suspension.’’
Rafael Lopez-Cepero agreed with the testimony of Brock
and Crowley, pointing out that very seldom did an employee
even have to explain a situation involving a complaint. The
worst penalty Lopez-Cepero recalled was 3-day suspension
or a verbal warning.
All of this testimony was generally credible, and the Re-
spondent presented no evidence questioning or contradicting
these witnesses.13
If thus appears that the discharge of Brock for his rudeness
to the customer on the evening of September 29 was a new
method of dealing with what the credible testimony of
Brock, Lopez-Cepero, and Crowley shows was a fairly com-
524 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
14 Although this sort of thing was common, I would not characterize it as
‘‘insignificant’’ as the General Counsel so described it in her brief. I am con-
cerned here more with the question of disparate treatment accorded to Brock
because of his concerted activities.
15 He did not get paid for those 3 days, but that matter is not at issue here. 16 See generally Isis Plumbing Co., 138 NLRB 716 (1962).
mon and constant problem.14 Thus, I find that the Respond-
ent’s argument that Brock would have been discharged, even
considering his protected concerted activity, is not substan-
tiated by any evidence in this record.
E. Analysis and Conclusions
The General Counsel argues here that the punishment of
Brock, after the Company learned that he was involved in or-
ganizing employees (at the same time that another union
campaign was in progress in the warehouse), and that he had
contacted the Board, was imposed because of his union ac-
tivities. Two other instances were cited by the General Coun-
sel to show the feelings of the Respondent toward concerted
activities by its employees.
The first of these involved Craig Crowley in February or
March 1989. After a general sales meeting, Crowley was
called in to Ken Collier’s office along with Frank Wentz, a
national sales director for Rhodes Furniture. Collier, after
some ‘‘staring’’ at Crowley, told him he had heard some
‘‘negative things’’ about him and asked if he liked his job.
Collier and Wentz continued in the same vein, alleging that
Crowley was influencing and counseling new people and
channeling complaints from those new people to manage-
ment, rather than influencing the new people to forget their
complaints and become happy and productive employees.
Crowley told them in effect, that what they were asking him
to do was their job, and his job was not to make judgments
for others about what kind of a place this was at which to
work.
After some more of this, Collier and Wentz told Crowley
to go home for 3 days and think about what they had said
to him, and whether he liked his job there and wanted to
continue to work there. Crowley left and returned 3 days
later and resigned.15
The second incident involved Lopez-Cepero, who had 17
years of service with Crossroads Furniture. Lopez-Cepero
testified that on October 8, the Sunday following Brock’s
discharge, an assistant store manager, Jim Crane, case to him
and said he had a customer who was ‘‘very irate’’ about
him. Lopez-Cepero said he did not know what it was all
about, and Crane said that a customer had complained that
Lopez-Cepero had been rude and acted in a ‘‘superior man-
ner’’ to the customer.
About one-half hour later Crane came to Lopez-Cepero
with a letter stating that Lopez-Cepero acknowledged that he
had been rude to the customer and had in a superior manner.
Crane asked Lopez-Cepero to sign the letter, but he refused.
Lopez-Cepero was not disciplined, but, as he said ‘‘I knew
right then that there was a time to leave this Company, that
they were not playing right.’’ He made up his mind to look
for another job. A week later he went to work for another
furniture company.
Ken Collier was present throughout this proceeding, and
testified as a witness for the Respondent. He was not asked
and did not testify concerning these two incidents. Nor did
Collier testify about Brock’s assertion that four out of the
five employees who had been in the August 30 meeting with
Torre were no longer with the Company at the time of this
hearing on March 9, 1990. Neither Frank Wentz nor Jim
Crane testified at all.
I find that Crowley and Lopez-Cepero were credible wit-
nesses and I believe their versions of what happened reflect
what actually happened. There is indeed no dispute as to
what they said about their final days with the Company.
As I have noted above, Brock was certainly engaged in
concerted activities together with other employees, Meyers
Industries, 268 NLRB 493 (1984). These activities were
known to the Company through Brock’s participation in the
meeting with Torre, and his credited statements, at that meet-
ing, that the employees were organized, that a majority of the
salespeople had signed a letter about their grievances, and
that Brock himself had had discussions with the Board.
Brock’s discharge was certainly not groundless. Rudeness
in a salesperson is a problem, as we all know, in retail trade.
But the record here shows that there are no specific sanctions
in the Company’s rules for rude or churlish behavior by
salespeople, and the Company’s practice has been to ignore
or downplay such offenses on the part of its people. The
statements by the General Counsel’s witnesses that the prior
practice was not altered by the Collier—Welch regime stand
undenied.
Added to this, the evidence shows through the experience
of Crowley and Lopez-Cepero that this Company did not
look with favor on Crowley’s leadership position among
newer employees, nor Lopez-Cepero’s participation in the
Torre meeting along with Brock. No one from the Company
came forward to contest these witnesses and I infer that both
Crowley and Lopez-Cepero were singled out, one for a 3-day
suspension and the other for some kind of a warning letter,
because they, too, had engaged in concerted activities with
other employees concerning conditions of employment.
The General Counsel here has established a prima facie
case under the Board’s decision in Wright Line, 251 NLRB
1083 (1980). The Respondent, as I have noted here, has not
met its burden of refuting the General Counsel’s case. I,
therefore, find that in discharging Robert Brock the Respond-
ent has violated Section 8(a)(1) of the Act.
IV. THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1) of the Act, I
shall order that it cease and desist therefrom and that it shall
take certain affirmative action designed to effectuate the poli-
cies of the Act.
Having further found that the Respondent discriminatorily
discharged employee Robert Brock on October 2, 1989, I
shall order that the Respondent offer Robert Brock imme-
diate and full reinstatement to his former position or, if that
position no longer exists, to a substantially equivalent posi-
tion, without prejudice to his seniority or any other rights
and privileges. Respondent shall also make Robert Brock
whole for any loss of earnings and other benefits he may
have suffered as a result of the discrimination against him.
Backpay shall be computed in the manner set forth in F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest com-
puted in the manner prescribed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).16
525CROSSROADS FURNITURE
17 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
18 If this Order is enforced by a judgment of a United States court of ap-
peals, 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.’’
CONCLUSIONS OF LAW
1. Respondent Rhodes Furniture, Inc. d/b/a Crossroads
Furniture is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. By discharging its employee, Robert Brock, on October
2, 1989, the Respondent has violated Section 8(a)(1) of the
Act.
3. This unfair labor practice affects commerce within the
meaning of Section 2(6) and (7) of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended17
ORDER
The Respondent, Rhodes Furniture, Inc. d/b/a Crossroads
Furniture, St. Louis, Missouri, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Discharging its employees for engaging in activities
protected by Section 7 of the Act.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer employee Robert Brock immediate and full rein-
statement to his former job or, if that job no longer exists,
to a substantially equivalent position, without prejudice to his
seniority or any other rights and privileges previously en-
joyed.
(b) Make Robert Brock whole, in the manner set forth in
section IV of this decision, entitled ‘‘The Remedy,’’ for any
loss of earnings and other benefits suffered as a result of the
discrimination against him.
(c) Preserve and, on 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 to analyze the
amount of backpay due under the terms of this Order.
(d) Post at its St. Louis, Missouri facility copies of the at-
tached notice marked ‘‘Appendix.’’18 Copies of the notice,
on forms provided by the Regional Director for Region 14,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.