Mr. S Liquor Marts, Inc.

National Labor Relations Board - Board Decisions

Jan 31, 1975

216 N.L.R.B. 425 (N.L.R.B. 1975)

MR. S LIQUOR MARTS 425
Mr. S Liquor Marts, Inc. and Retail Clerks Union,
Local 770, Retail Clerks International Association.
Case 21-CA-12563
January 31, 1975
DECISION AND ORDER
BY ACTING CHAIRMAN FANNING AND
MEMBERS JENKINS AND KENNEDY
Pursuant to notice, a hearing was held in Los Angeles,
California, on June 25, 1974, before me duly designated as
Administrative Law Judge. Appearances were entered on
behalf of the General Counsel and Respondent and briefs
were received from said parties on July 29, 1974.
Upon the entire record in this proceeding and my
observation of the witnesses as they testified, I make the
following:
FINDINGS OF FACT
On September 27, 1974, Administrative Law Judge
Stanley Gilbert issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
a brief in answer to Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' 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
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Mr. S Liquor
Marts, Inc., Temple City and Rosemead, California,
its officers, agents, successors , and assigns, shall take
the action set forth in the said recommended Order.2
I The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board 's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
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.
2 Member Kennedy adopts pro forma the Administrative Law Judge's
recommendation that Respondent post the prescribed notice at all four
stores.
DECISION
STATEMENT OF THE CASE
STANLEY GILBERT, Administrative Law Judge: Based
upon a charge filed on April 1, 1974, by Retail Clerks
Union, Local 770, Retail Clerks International Association,
hereinafter referred to as the Union , the complaint herein
was issued on May 14, 1974. The complaint , as amended,
alleges that Mr. S Liquor Marts , Inc., hereinafter referred
to as Respondent , violated Section 8(a)(1) and (3) of the
Act. Respondent , by its answer, as amended , denies that it
engaged in conduct violative of the Act.
216 NLRB No. 78
I. BUSINESS OF RESPONDENT
Respondent, a California corporation, is engaged in the
retail sale of liquors at four stores in southern California,
including stores located in Temple City and Rosemead,
California, the only two of its stores which are directly
involved in this proceeding.
Respondent, in the normal course and conduct of its said
business operations, annually derives gross revenues in
excess of $500,000 and annually purchases and receives
goods,- products, and materials in excess of $50,000 from
suppliers located within the State of California, which
suppliers, in turn, purchase and receive said goods,
products, and materials directly from suppliers located
outside the State of California.
As is admitted by Respondent, it is, and has been at all
times material herein, an employer engaged in commerce
and in business affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
As is admitted by Respondent , the Union is, and has
been at all times material herein , a labor organization
within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The management personnel involved in this proceeding
are Louis Smaldino, Respondent's president; Edward
Rose, manager of Respondent's Temple City store; and
John Piraino, manager of Respondent's Rosemead store.
Respondent admits that the above-mentioned management
personnel are supervisors within the meaning of the Act.
A. The Issues
1. Whether or not Respondent violated Section 8(a)(3)
and (1) of the Act by the admitted discharge of John
Foster, employed at the Temple City store, on March 29,
1974.
2. Whether or not, through the conduct of Rose and
Smaldino on March 29, 1974, Respondent engaged in
various acts violative of Section 8(a)(1) of the Act with
respect to employees in the Temple City store.
3. Whether or not, through the conduct of Piraino, on
March 29 and March 30, 1974, Respondent engaged in
conduct violative of Section 8(a)(1) of the Act with respect
to employees at the Rosemead store.
426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Foster 's Discharge
It appears that Foster was the principal , if not the only,
employee active in the organizing campaign on behalf of
the Union . According to Foster's credited testimony,
during the period between March 25 and 28 , 1974, he
solicited eight or nine employees at three of the stores
personally and another employee at the fourth store
through the mail. It appears that at the time there was a
total of 1 I employees in the four stores . It further appears
from Foster 's credited testimony that among the employees
he solicited on behalf of the Union were Jack Immel and
Tom Anderson . On April 1, 1974, Smaldino received a
request for recognition from the Union.
The General Counsel contends that it was because of his
activity on behalf of the Union that Foster was discharged
on March 29 . On the other hand , Respondent contends
that his discharge was for his poor work performance and
inordinate use of the telephone . Further, Respondent
contends that its decision to discharge Foster could not
have been discriminatorily motivated because it had no
knowledge of the union organizational activity until shortly
after Foster's discharge had been effected . Essentially a
resolution of the issue as to Foster 's discharge must be
predicated upon the credibility of Foster's testimony as
opposed to that of Rose and Smaldino.
Foster, who had been employed as a clerk by Respond-
ent for a total of 18 months with a break of 1 year and had
been employed continuously from June 1973 until his
termination on March 29 , worked as a night clerk in the
Temple City store during the shift starting at 4 p.m. He
testified that on March 29 he arrived about 10 minutes to
4. According to Foster's testimony , when he came in he
was immediately confronted by a question from Rose.
Foster's testimony is as follows:
A. He said something about, "What's this? Jack
Immel said you were circulating a union petition."
Q. Who is Jack Inunel?
A. At that time he was a night clerk at the Arcadia
store.
Q. Had you previously discussed the union with
Mr. Immel?
A. Yes, I had.
Foster then testified that he said that he "didn't know
anything about it" and proceeded into the stockroom.
Foster further testified as follows:
I came back out. He again started up a conversation
and said that he had told me that I was going to tell
him about this petition or something was going to
happen to me and he also said that Lou Smaldino was
on his way down-
Foster then called the union office, apparently to report his
conversation with Rose, and was informed that a repre-
sentative would come to the store.
Smaldino arrived about 4:30 p.m. and Foster was told to
take over the cash register while Rose and Smaldino went
to the office (which is located outside the store in a
separate building ) where they remained for approximately
30 minutes . Rose then returned to the store and Foster was
told to report to Smaldino at the office . According to
Foster's testimony when he walked into the office
Smaldino told him "John, I think you're a nice guy, but
I'm afraid I am going to terminate you" and he showed
him a statement written by Rose . The statement was as
follows:
For the last several weeks , I have noticed a general
lack of responsibility by John Foster in the fulfillment
of his functions as a night clerk in our store. This
condition has been complicated by the fact that when
confronted with this issue he has failed to improve his
performance . I see no other option at this point than to
dismiss him. After several attempts to resolve the
problems I have come to the conclusion that they
cannot be resolved.
Foster further testified that after showing him Rose's
statement , Smaldino resumed talking to him. His testimony
with respect thereto is as follows:
A. He went on to mention that what he said I had
done wrong , like not picking up the broom at night and
taking it into the back room and I wasn ' t mopping the
spots in the floor , hadn't cleaned his desk at night and I
had left some beer flats in the box and I hadn't cleaned
the parking lot the night before.
Q. Did he say anything further?
A. He later, at the end of the conversation, he
mentioned that he said that Tom [ostensibly referring
to Tom Anderson] had said you were circulating a
union petition.
I'd be glad to sign it, just bring it in . That's what he
told me.
Rose testified that he recommended that Foster be
terminated. Rose testified as follows as to the reasons for
his recommendation:
A. His work performance during, especially during
the month of March had been bordering on totally
incompetent. He had an attitude problem about the
store and about working for our company, which I had
talked to him about on several occasions.
Q. Any other reasons that he was terminated?
A. Specifically, the items I spoke to' Mr. Foster
about were keeping the store neat and orderly, cashing
customers ' checks, cleaning the premises , facing up
shelves, doing the bottles , dumping the trash, day-to-
day work.
Rose then testified in considerable detail as to the
complaints he had with respect to Foster's work perfor-
mance and attitude and as well as incidents in which he
warned Foster about his poor work performance starting
around the first of February. It appears from Foster's
testimony that Rose had on occasion complained to him
about his work performance but denied that he had
threatened him with discharge . From my observation of
the witnesses and a study of their testimony it is my
opinion that Rose engaged in exaggeration in his testimony
and on the other hand Foster attempted to minimize the
MR. S LIQUOR MARTS 427
complaints of management . It is inferred that Rose and
Smaldino were dissatisfied with Foster 's work performance
and attitude but not to the extent to which they testified. It
is noted that in the middle of February Foster received 'a
bonus of $150 predicated in part upon his prior wprk
performance and that the bonus was very large compared
with bonuses received by other employees . Smaldino
testified as follows with respect to giving bonuses:
Q. How often is a bonus given?
A. It is typically quarterly, since I took over the
business.
Q. A bonus is based on length of service with the
company?
A. No, sir.
Q. Based on position with the company?
A. No, sir . Everybody is-can receive a bonus and
a lot of factors go into it . Basic one is whether the
company made a profit or not.
Q. Is it true , isn't it, that some employees don't
receive bonuses?
A. That's been the case.
Q. And some employees receive as small as $20.00?
A. Which is typically commensurate to their
contribution to the company, yes, sir . During that
period of service.
Thus, it is inferred from the size of the bonus given Foster
in mid-February that for the quarterly period prior to the
quarter in which he was terminated his work performance
must have been especially good.
No purpose would be served in attempting to analyze in
detail the testimony with respect to the complaints of
management about Foster's work performance and atti-
tude during the period from February 1 to the date of his
termination , since (for reasons set forth hereinbelow) it is
concluded that it was Foster's activity on behalf of the
Union which primarily motivated his discharge and that
while there was some truth to the testimony of Rose and
Smaldino with respect to their dissatisfaction with Foster's
work performance and attitude, said dissatisfaction was
not the primary motive for his discharge.
Rose and Smaldino testified at length as to the events of
March 29 which precipitated their decision to discharge
Foster. Foster had worked the night of March 28 and Rose
testified that when he arrived at about 8 in the morning on
March 29 he observed that the store and the parking lot
was a "mess"; that Smaldino arrived about 15 minutes
later and complained to him about the condition of the
store and asked him what he was planning to do about it;
that Smaldino said he would not tolerate it any more; and
that he told Smaldino he would talk to Foster when he
reported at 4 o'clock and, if he did not get an "adequate
response" from him he would call Smaldino. Rose testified
as follows as to what occurred when Foster reported to
work:
A. John walked in and walked to the back room to
get his name badge and his pens . Came back out of the
back room , and I immediately confronted him with the
condition of the store that morning.
Q. What did you say to him exactly?
A. I said to him, "John, is there some reason that
you couldn't get the work done around here last
night?"
He said, "Well, what do you mean?" I responded
with the list that I had written up that morning after
Mr. Smaldino had left and said, "Here. This is what I
mean."
He looked over the list and said, "You know, this is
all just a bunch of piddley shit." I then said, "Are you
going to improve or am I going to have to do something
about this?"
He responded that, "You really don't have a point.
This is all very small stuff and I am not - I am not too
concerned with all of it."
Foster testified that Rose made no mention of his job
performance when he reported to work on March 29.
Rose's testimony continues as follows:
It was almost a dismissal on his part . He then went
to the back room. I called Mr. Smaldino.
Q. About what time was this that you called Mr.
Smaldino?
A. I called Mr. Smaldino about ten minutes after
four.
Q. What did you say to him at that point and what
did he say to you?
A. I asked him if he would please come up to the
store . He said, "Well, why?"
I said, "Because I have talked to John Foster." I
said, "Now, I want to talk to you about this problem,
because I don't think we are going to get it resolved."
Smaldino arrived at the store a short time later and he
and Rose had a conference. Rose's testimony with respect
thereto is as follows:
We left the store and went over to Mr. Smaldino's
office and were no more inside when I said, "Lou,
either you are going to fire him or I am going to quit. I
can't work with him any more. I am doing twice the
work that I would normally have to do."
He responded, "Calm down and let's get specific
about it. Let's talk about it." I told him at that point
what had transpired between Foster and I. The fact
that he was incorrigible as far as I was concerned, and
informed him that I just couldn't work with Mr. Foster.
I wrote a statement out for him and he concurred
with the statement and said, "Okay. Let's go back over
to the store."
Smaldino testified with respect to his conference with
Rose in the morning of March 29 which is substantially in
accord with the testimony of Rose with respect thereto.
Smaldino further testified that about 4:15 he received a call
from Rose saying that he was unable to resolve the
problem with Foster and that he then went to the Temple
City store. His testimony with respect to his conference
with Rose in the office of the Temple City store is
substantially in accord with the testimony of Rose.
428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Smaldino then summoned Foster to his office and
Smaldino's testimony as to his conversation with Foster in
his office is as follows:
A. Well, it was a rather brief conversation. I said
something to the effect, "John , I am terminating you." I
says, "We have tried everything we can to improve
your performance and it just hasn 't transpired."
He says, "Well, what does that mean?" And I
proceeded to itemize the things.
Q. What did you tell him?
A. Specifically, that the store had been persistently
left in a sloppy condition whenever he had worked the
night before. That he's failed to cash checks for some of
our very best customers and I just couldn't understand
that because we have a very tight check cashing
procedure and these people had cards and they were
very good customers.
That I just couldn ' t tolerate his not getting along
with Rose anymore and that, you know, this was the
end of the line and that's the way it was going to be.
I then asked him for his badge and he also-he had
some pens in his pocket that he threw on the counter
and he says, "These are yours, too," and we walked
back over to the store and -
Q. Did he say anything to you during this
conversation?
A. Oh, yeah. You know, just he says, "I don't
believe all this." He says, something to the effect, "This
is all piddley shit." I said, "John, it's not piddley. I am
terminating you over it."
I said , you know, " It's a shame , but you know, you
are just not doing your job here and I just can't tolerate
the situation in the store anymore."
While Foster was in Smaldino's office conferring with
him, the union representative , Bernard Estes , arrived at the
store . Rose testified that while Foster and Smaldino were
conferring, a man who did not identify himself entered the
store and asked to see Foster and when he was told he was
in a meeting, said he would wait for him (Foster ). In the
courtroom he identified Estes as the man to whom he was
referring . Rose testified , in describing the man, that he
noticed a pin in his lapel but he was not sure but that it
looked like a "retail clerk's pin."
Shortly after Estes arrived Foster and Smaldino returned
to the store . Rose testified that he overheard Estes ask
Foster what was going on and Foster responded that he
had been fired and that they went outside the store to talk.
Smaldino testified that when he entered the store after his
conference with Foster he saw a man in the store (Estes)
wearing a retail clerk's pin ; that he heard Foster say
something to Estes to the effect that he had been
terminated ; that they (Foster and Estes) walked outside the
store into the parking lot; and that he then went to them
and asked them to "please remove themselves from the
premises ." Estes testified that he did not wear a union pin
in his lapel and that when Smaldino approached him when
he was talking to Foster in the parking lot Smaldino said
that he was not too familiar with labor law and questioned
whether he did not need his (Smaldino's) permission to talk
to his employees; that he asked Smaldino if Foster is one of
his office employees; and that Smaldino replied "not any
more."
Both Rose and Smaldino testified that up to this point
they had no knowledge of any union organizational
activity but that they learned of it and Foster's participa-
tion in it a short time thereafter . Smaldino testified that
after he had told Foster and Estes to leave the premises he
went back to his office to obtain a replacement for Foster
and that he called Tom Anderson and asked him if he
could work that evening . Smaldino's testimony as to the
ensuing conversation is as follows:
He asked me , "Gee, how come?" And I said , "Well,
I had terminated an individual in one of the stores,"
and he said, "Gee, who is that?" And I said , "It was
John Foster over at the Temple City store," and that,
you know, could he work for me that evening.
He then asked me something to the effect that,
"Well, gee, how come you fired him?" And I said,
"Well, because [he] and Rose just can 't get along and
the guy is just persistently not doing his job," and he
said, "Well, gee, does it have anything to do with the
union petition?" And I said, "What?"
He says, "Yes . They are circulating a union petition
in the company." I said, "No, I am not aware of that,"
and that was the end of the conversation.
According to Smaldino's testimony this information from
Anderson was the first knowledge he had of the Union's
organizational activity and, in effect , he denied Foster's
testimony that he mentioned Anderson's report to him of
Foster's union activity at the termination interview.
Rose testified that he first learned of the union
organization and Foster 's activity with respect thereto
about 5 : 30 that evening after Smaldino reported to him the
information he had obtained from his conversation with
Anderson. Rose denied Foster's testimony to the effect
that when he first reported to the store at 4 o'clock he
confronted Foster with the statement that he had a report
from Immel that Foster was circulating a petition on behalf
of the Union. Rose further testified that he had never
talked to Immel about the Union.
It is noted at this point that neither Immel nor Anderson
was called as a witness.
C. Concluding Findings Re Foster's Discharge
Foster was the more convincing witness and his
testimony is credited with respect to the conversation he
had with Rose when he reported to work around 4 p.m. on
March 29. It is quite clear that Foster reacted to their
conversation by calling the Union and seeking the aid of a
representative. According to Rose's version of what was
said, Foster had little or no reason to seek union aid. Rose
testified that Foster indicated a lack of concern. On the
other hand, Foster's testimony that Rose confronted him
with a report from Immel that he circulated the union
petition would explain Foster's hasty call to the Union for
assistance . Further, Pollo's credited testimony that when
he reported to work (shortly after the conversation between
Rose and Foster) Foster said to him "they found out about
the Union" tends to corroborate Foster's testimony.
MR. S LIQUOR MARTS 429
Also, Foster was a more convincing witness and his
testimony is credited with respect to his termination
interview with Smaldino particularly as to his testimony
that he (Smaldino) had a report from Anderson that he
(Foster) was circulating the union petition . Smaldino
testified that he did not learn about the union activity until
some time after he concluded the termination interview
and called Anderson who then informed him of the
circulation of the union petition. It is unreasonable to
assume that Foster, in his testimony , could have anticipat-
ed that it was Anderson who informed Smaldino of the
union activity had Smaldino not mentioned it to him.
Moreover, it appears unlikely that Smaldino would have
acted as drastically as he did in ordering Estes and Foster
out of the parking lot had he not, contrary to his testimony,
been aware of the Union's activity and Foster's participa-
tion in it . Consequently, it is concluded that Foster's
discharge was primarily motivated by his activities on
behalf of the Union in view of its timing and the finding
that Respondent had acquired knowledge of his union
activity prior thereto. While it appears that there is some
merit to Respondent's contention that Foster's work
performance had deteriorated , it appears unlikely that an
employee who had merited a large bonus of $150 could
have so completely altered his work performance as to
have required the drastic action of discharge . Consequent-
ly, it is concluded that Foster was discriminatorily
discharged on March 29, 1974, in violation of Section
8(aX3) and (1) of the Act.
he overheard between Piraino and DiGuiseppe and,
therefore, must have been on March 29.
E. Concluding Findings of Independent Violations of
Section 8(a)(1)
It is found that Respondent, through the conduct of
Rose - on March 29, violated Section 8(aXi) by unlawfully
interrogating Foster about the report from Immel of the
circulation of a union petition and insisting that he be
informed about it.
It is found that Respondent violated Section 8(aXl) of
the Act on March 29, 1974, by the conduct of Rose in
interrogating Pollo as to whether or not he had signed a
union card.
It is found that Respondent violated Section 8(a)(1) of
the Act on March 29, 1974, by the conduct of Piraino in
unlawfully interrogating Ponzo.
It is found that Respondent violated Section 8(aXl) of
the Act on March 30, 1974, by the conduct of Piraino in
unlawfully interrogating DiGuiseppe and also by his
threatening that if the Union came in Respondent would
close three of the stores and work one with its managers.
There is insufficient evidence to support a finding that
Respondent created the impression that it was engaging in
surveillance of union activities or other protected concert-
ed activities as alleged in the complaint.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
D. Other Findings
Larry Pollo, who was employed at the Temple City store
on March 29, credibly testified that he arrived shortly
before 5 on that day and Foster told him (as indicated
above) that "they found out about the union." This
statement was made by Foster during the period that Rose
and Smaldino were conferring in the office prior to the
termination of Foster. Pollo further testified without
contradiction , and his testimony is credited, that later that
evening Rose asked him if he had signed a union card and
he admitted that he had . This interrogation occurred after
Foster's termination but prior to 7 p.m.
James DiGuiseppe testified without contradiction, and
his testimony is credited, that on March 30, 1974, Piraino,
the manager of the Rosemead store where DiGuiseppe
worked asked him if he had signed a union card; and that
when he replied in the negative, Piraino said that he knew
Larry Pollo had signed one and that if the Union came in
management would close three of the stores and work one
with its managers.
Michael Ponzo , who was also employed at the Rosemead
store, credibly testified that he overheard part of the
abovementioned conversation between Piraino and DiGui-
seppe . Ponzo also testified that Piraino asked him if he had
signed with the Union; that he replied in the affirmative;
that Piraino stated he shouldn't have done it; that he did
not think the Union would get in; that he, Piraino, asked
him if anyone else had signed ; that he said I think so, I saw
Larry Pollo's name. While Ponzo was not too clear as to
dates, it appears that the conversation he had with Piraino
occurred the day before the aforementioned conversation
The unfair labor practices of Respondent set forth in
section III , above, occurring in connection with its
operations set forth in section I, above, have a close,
intimate and substantial relation to trade , traffic, and
commerce among the several States , and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof.
V. THE REMEDY
It will be recommended that the Respondent be ordered
to cease and desist from engaging in the unfair labor
practices found herein and take certain affirmative action,
as provided in the recommended Order below, designed to
effectuate the policies of the Act.
It having been found that John Foster was unlawfully
discharged on March 29, 1974, it will be recommended that
Respondent be ordered to offer him immediate and full
reinstatement to his former job, or, if his job no longer
exists, to a substantially equivalent position without
prejudice to his seniority or other rights and privileges. It
will be further recommended that Respondent be ordered
to reimburse him for any loss of pay he may have suffered
as a result of its discriminatory action against him in the
manner set forth in F. W. Woolworth Company, 90 NLRB
289, 291-293 (1950), together with 6-percent interest
thereon in accordance with Isis Plumbing & Heating Co.,
138 NLRB 716 (1962).
It will be further recommended that Respondent be
required to post the notice referred to in the Order
hereinbelow in all four of its stores since the Union's
organizational activity extended to all of them.
430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the foregoing findings of fact and
upon the entire record in this proceeding, I make the
following:
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commer-
ce within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. Respondent discriminatorily discharged John Foster
on March 29, 1974, in violation of Section 8(aX3) and (1)
of the Act.
4. Respondent violated Section 8(a)(l) of the Act on
March 29 and March 30, 1974, by unlawfully interrogating
employees as to their union activities and union activities
of their fellow employees and by threatening economic
reprisal should the Union be successful in becoming their
bargaining representative.
5. General Counsel has failed to prove by a preponder-
ance of the evidence the allegation that Respondent
unlawfully created the impression it was engaging in
surveillance of the Union or other protected concerted
activities.
Upon the foregoing findings of fact, conclusions of law,
and upon the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER I
(c) Post at its four stores in southern California copies of
the attached notice marked "Appendix." 2 Copies of said
notice on forms provided by the Regional Director for
Region 21 , after being duly signed by an authorized
representative of Respondent, shall be posted by Respond-
ent immediately upon receipt thereof and maintained 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
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 21, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
The allegation in the complaint that Respondent
unlawfully created the impression that it has engaged in
surveillance of the Union or other protected concerted
activities should be, and is hereby, dismissed.
I 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.
2 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."
Respondent, Mr. S Liquor Marts, Inc., its officers,
agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Unlawfully interrogating employees regarding their
union activities or the union activities of their fellow
employees.
(b) Threatening employees with loss of their jobs if they
select Retail Clerks Union, Local 770, Retail Clerks
International Association, or any other labor organization,
as their bargaining representative.
(c) Discouraging membership in the aforesaid Union, or
any other labor organization , by discriminating against
employees in regard to hire or tenure of employment or
any term or condition thereof.
(d) In any other manner interfering with, restraining, or
coercing employees in the exercise of rights under Section 7
of the Act.
2. Take the following affirmative action which is
deimed necessary to effectuate the policies of the Act:
(a) Offer John Foster immediate and full reinstatement
to his former job or, if his job no longer exists, to a
substantially equivalent position , without prejudice to his
seniority or other rights and privileges, and make him
whole for any loss of pay suffered by him by reason of his
discriminatory discharge in the manner set forth in the
section hereinabove entitled "The Remedy."
(b) Upon request, make available to the Board or its
agents, for examination and copying, all payroll and other
records containing information concerning its backpay
obligation under this recommended Order.
APPENDIX
NOTICE To EMPLOYBBs
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT unlawfully interrogate employees
regarding their union activities or the union activities of
their fellow employees.
WE WILL NOT threaten employees with loss of their
jobs if they select Retail Clerks Union, Local 770,
Retail Clerks International Association, or any other
labor organization, as their bargaining representative.
WE WILL NOT discourage membership in the afore-
said Union or any other labor organization by
discriminating against employees in regard to hire or
tenure of employment or term of conditions thereof.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in their exercise of rights
under Section 7 of the Act.
WE wu.L offer John Foster immediate and full
reinstatement to his former job or, if his job no longer
exists, to a substantially equivalent position , without
prejudice to his seniority or other rights and privileges,
and make him whole for any loss of pay suffered by
him by reason of his discriminatory discharge.
MR. S LIQUOR MARTS,
INC.