Gold Standard Enterprises, Inc.

356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Gold Standard Enterprises, Inc.; Gold Standard Liquor Store of Skokie; Gold Standard Liquor Store of Waukegan; Gold Standard Liquor Store and Chalet Wine and Cheese Shops, Ltd. of Highland Park; Chalet Wine and Cheese Shops, Ltd. of Glencoe; Gold Standard Liquor Store and Chalet Wine and Cheese Shops, Ltd. of River Grove; Gold Standard Liquor Store on Broadway Avenue; Chalet Wine and Cheese Shops, Ltd. on Fullerton Avenue; Chalet Wine and Cheese Shops, Ltd. on Armitage Avenue; Chalet Wine and Cheese Shops, Ltd. on 53rd Street; Gold Standard Liquor Store on Ridge Avenue and Local 1550, Chartered by United Food and Commercial Workers International Union, AFL-CIO' and Liquor & Allied Work- ers Union Local No. 3, Retail Liquor Sales- men's Division, affiliated with Distillery, Recti- fying, Wine and Allied Workers' International Union of America, AFL-CIO, Party in Interest and Retail Liquor Salesmen Union Local 162, affiliated with the Distillery, Wine, Rectifying and Allied Workers of America, AFL-CIO, Party in Interest Liquor & Allied Workers Union Local No. 3, Retail Liquor Salesmen's Division, affiliated with Dis- tillery, Rectifying, Wine and Allied Workers' International Union of America, AFL-CIO and Local 1550, Chartered by United Food and Commercial Workers International Union, AFL-CIO and Retail Liquor Salesmen Union Local 162, affiliated with the Distillery, Wine, Rectifying and Allied Workers of America, AFL-CIO, Party in Interest and Gold Standard Enterprises, Inc.; Gold Standard Liquor Store of Skokie; Gold Standard Liquor Store of Wau- kegan; Gold Standard Liquor Store and Chalet Wine and Cheese Shops, Ltd. of Highland Park; Chalet Wine and Cheese Shops, Ltd. of Glencoe; Gold Standard Liquor Store and Chalet Wine and Cheese Shops, Ltd. of River Grove; Gold Standard Liquor Store on Ridge Avenue; Gold Standard Liquor Store on Broadway Avenue; Chalet Wine and Cheese Shops, Ltd. on Fuller- ton Avenue; Chalet Wine and Cheese Shops, Ltd. on Armitage Avenue; Chalet Wine and Cheese Shops, Ltd. on 53rd Street, Party in In- terest. Cases 13-CA-17811 and 13-CB-8021 May 7, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND TRUESDALE On September 7, 1979, Administrative Law Judge Robert Cohn issued the attached Decision in On June 7, 1979, Retail Clerks International Union, AFL-CIO. merged with Amalgamated Meat Cutters and Butcher Workmen of North America, AFL CIO, thereby forming the United Food and Com- mercial Workers International Union, AFL-CIO. The cpption, previously 249 NLRB No. 46 this proceeding. Thereafter, Respondent Employer and the General Counsel filed exceptions and sup- porting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings, and conclusions of the Administrative Law Judge to the extent consistent herewith and to adopt his recommended Order, as modified herein. The Administrative Law Judge found that Re- spondent Employer's recognition of a minority union as representative of its employees was viola- tive of the Act and that the execution, enforce- ment, and maintenance of a collective-bargaining agreement with a minority union was further viola- tive of the Act. We agree with these findings. The Administrative Law Judge did not make a finding as to when the contract in question was ex- ecuted, or as to whether or not there was any con- tract actually in existence at the time Respondents attempted to force compliance with the union-secu- rity clause on the employees of the Employer. The contract in question, which was put in evi- dence by the General Counsel and upon which Re- spondents rely in their attempt to justify their ac- tions, is dated August 1, 1977. However, except for the date appearing on the face of the contract, there is no evidence as to when the contract was executed as neither of the Respondents presented any testimony in this case. Although the activity of Respondents here is unlawful regardless of when the contract was executed, 2 we believe that the evidence justifies an inference that there may not have been any contract at the time Respondents began pressuring the employees to join the Union in July 1978. We note that several of the Employ- er's employees testified without contradiction to the failure and refusal of the Union's representa- tives to let them see a contract at the time they were being told that they were obliged by contract to join the Union in early July. Some were told that the contract had been signed in 1976; others were told that a contract was not yet completed, that one was being printed up, that the parties were trying to hammer out a contract, and that there would be a meeting in 2 or 3 weeks when they could see it. Although some employees agreed to designating the International as Retail Clerks International Association, AFL-CIO, has been amended accordingly. 2 The evidence is clear that neither Local 162 nor Local 3 represented a majority of the employees and that the aggrieved employees were not made aware of the alleged existence of the contract until July 1978. See Hot Bagels and Donuts of Staten Island. Inc., 227 NLRB 1597 (1977). GOLD STANDARD ENTERPRISES, INC. 357 join the Union if only they could see the contract, their request was refused. Management officials also were unable to satisfy the employees' request to see a contract. In addition, some employees tes- tified that they were told by management that there was no union at the Employer's stores. In light of all of this evidence, we find that the date printed on the contract is unconvincing as to the date of its execution and we infer that there might well have been no contract in effect when the em- ployees were being forced to join the Union in early July 1978. The General Counsel excepted to the Adminis- trative Law Judge's failure to find that employee Thomas was transferred from his job as truckdriver in violation of Section 8(a)(3) and (1) of the Act. We find merit in this exception. In dismissing this allegation, the Administrative Law Judge relied in part on his finding that Thomas had on many occa- sions prior to the transfer expressed a desire to work inside rather than drive a truck and that the evidence failed to show that Thomas was active on behalf of the Charging Party. However, after care- ful review of Thomas' testimony, it is clear to us that Thomas did not express a desire to work inside prior to his transfer. Rather, after his trans- fer, he expressed a desire to remain inside rather than be transferred again. We note also that em- ployee Roder testified that he gave Thomas cards on behalf of the Charging Party to take around to the other stores. Further, Respondent Employer advanced no evidence as to the reason why Thomas was transferred from the truckdriving job he had enjoyed for many years. In light of this, and the additional factors that Thomas' transfer came right on the heels of his expressed reluctance to join Local 3, and that his supervisor, Laub, told him he was being transferred because the Employ- er thought he was "mixed up in the Union," we find the evidence sufficient to show that the trans- fer was discriminatory, and in violation of Section 8(a)(3) and (1) of the Act. The General Counsel also excepted to the failure of the Administrative Law Judge to find that Re- spondent Employer's execution, maintenance, and implementation of the unlawful collective-bargain- ing agreement containing a union-security clause violated Section 8(a)(3) of the Act, and that Re- spondent Union's maintenance and execution of that agreement likewise violated Section 8(b)(2) of the Act. We find merit to these exceptions and find that Respondents did violate these sections of the Act. 3 We will also amend the Administrative Law Judge's recommended Order and order the Re- 3 Supreme Equipment & Systems Corporation, 235 NLRB 244 (1978) spondent Union to cease and desist from causing or attempting to cause the discharge of employees who refused to sign the dual-purpose cards. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge as modi- fied below, and hereby orders that Respondent Gold Standard Enterprises, Inc.; Gold Standard Liquor Store of Skokie; Gold Standard Liquor Store of Waukegan; Gold Standard Liquor Store and Chalet Wine and Cheese Shops, Ltd. of High- land Park; Chalet Wine and Cheese Shops, Ltd. of Glencoe; Gold Standard Liquor Store and Chalet Wine and Cheese Shops, Ltd. of River Grove; Gold Standard Liquor Store on Broadway Avenue; Chalet Wine and Cheese Shops, Ltd. on Fullerton Avenue; Chalet Wine and Cheese Shops, Ltd. on Armitage Avenue; Chalet Wine and Cheese Shops, Ltd. on 53rd Street; Gold Standard Liquor Store on Ridge Avenue, Chicago, Illinois, its officers, agents, successors, and assigns, and Respondent Liquor & Allied Workers Union Local No. 3, Retail Liquor Salemen's Division, affiliated with Distillery, Rectifying, Wine and Allied Workers' International Union of America, AFL-CIO, its of- ficers, agents, and representatives, shall take the action set forth in the said recommended Order, as so modified: i. Insert the following as paragraph A,l(e), and reletter the existing paragraph A,l(e), and subse- quent paragraphs accordingly: "(e) Transferring employees from one job to an- other because they engaged in union activities." 2. Insert the following as paragraph A,2(b), and reletter the existing paragraph A,2(b), and subse- quent paragraphs accordingly: "(b) Make Curtis Thomas whole for the loss of pay suffered by him as a result of the diminution of his hours between July 8-9, 1978, and October 5-6, 1978." 3. Insert the following as paragraph B,l(c), and reletter the existing paragraph B,l(c), and subse- quent paragraphs accordingly: "(c) Causing or attempting to cause the dis- charge of employees because the employees refused to sign dual-purpose cards for Respondent Local 3." 4. Substitute the attached notices for those of the Administrative Law Judge. 358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX A NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAl LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. The Act gives employees the following rights: To engage in self-organization To form, join, or assist any union To bargain collectively through repre- sentatives of their own choice To engage in activities together for the purpose of collective bargaining or other mutual aid or protection To refrain from the exercise of any or all such activities. Wi, WILL NOT do anything that interferes with, restrains, or coerces you with respect to those rights. More specifically, WI WIl.l. NOT recognize Liquor & Allied Workers Union Local No. 3, Retail Liquor Salesmen's Division, affiliated with Distillery, Rectifying, Wine and Allied Workers' Interna- tional Union of America, AFL-CIO, as the ex- clusive bargaining representative of our em- ployees, unless and until the said labor organi- zation shall have demonstrated its exclusive majority representative status pursuant to a Board-conducted election among our employ- ees. WE WILL NOT give effect to any collective- bargaining agreement presently existing be- tween us and the above-named Union, nor to any extension, renewal, or modification there- of. WE WILL NOT otherwise unlawfully contrib- ute assistance or support to the above-named Union. WE WILL NOT discharge or otherwise dis- criminate against employees because they failed to join or sign authorization or dues- checkoff cards for the aforesaid Union. WE WILL NOT transfer or otherwise dis- criminate against employees because they engage in union activities. WE WILL NOT threaten employees with dis- charge for engaging in union activities, or be- cause they failed or refused to sign authoriza- tion or dues-checkoff cards for the above- named Union. WE WILL NOT coercively interrogate em- ployees concerning their own or other em- ployees' union activities. WE WILL NOT create an impression of sur- veillance of employees' union activities. WE WILL NOT solicit employees' signatures on authorization or dues-checkoff cards for the above-named Union. WE WILL NOT advise employees that other employees were terminated or discharged and would not be reinstated because those employ- ees refused to sign authorization or dues- checkoff cards for the above-named Union. WE WILL NOT threaten employees with more onerous working conditions because they engage in union activities. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed in Section 7 of the Act. WE WILL make Curtis Thomas whole for any loss of earnings he may have suffered by reason of the discrimination against him, with interest. WE WILL offer Dawn Smyka and Lila Zelkowitz immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights or privileges, and, jointly and severally with the above-named Union, make them and the other employees listed below whole for any loss of earnings they may have suffered by reason of the discrimination against them, with interest. Mary Loftus Jeff Boyell Dave Roder Bill Meany Patricia Peek Susan Nagel Margherita DeMaio Patricia Gulledge WE WILL remove and expunge from the personnel file of Mary Loftus all written warn- ings issued to her since September 12, 1978. GOLD STANDARD ENTERPRISES, INC. 359 GOLD STANDARD ENTERPRISES, INC.; GOLD STANDARD LIQUOR STORE SKOKIE; GOLD STANDARD LIQUOR STORE OF WAUKEGAN; GOLD STAND- ARD LIQUOR STORE AND CHALET WINE AND CHEESE SHOPS, LTD. OF HIGHLAND PARK; CHALET WINE AND CHEESE SHOPS, LTD. OF GLEN- COE; GOLD STANDARD LIQUOR STORE AND CHALET WINE AND CHEESE SHOPS, LTD. OF RIVER GROVE; GOLD STANDARD LIQUOR STORE ON BROADWAY AVENUE; CHALET WINE AND CHEESE SHOPS, LTD. ON FULLERTON AVENUE; CHALET WINE AND CHEESE SHOPS, LTD. ON ARMITAGE AVENUE; CHALET WINE AND CHEESE SHOPS, LTD. ON 53RD STREET; GOLD STANDARD LIQUOR STORE ON RIDGE AVENUE APPENDIX B NOTICE TO MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. The Act gives employees the following rights: To engage in self-organization To form, join, or assist any union To bargain collectively through repre- sentatives of their own choice To engage in activities together for the purpose of collective bargaining or other mutual aid or protection To refrain from the exercise of any or all such activities. WE WILL NOT act as the exclusive bargain- ing representative of any of the employees of Gold Standard Enterprises, Inc.; Gold Stand- ard Liquor Store of Skokie; Gold Standard Liquor Store of Waukegan; Gold Standard Liquor Store and Chalet Wine and Cheese Shops, Ltd. of Highland Park; Chalet Wine and Cheese Shops, Ltd. of Glencoe; Gold Standard Liquor Store and Chalet Wine and Cheese Shops, Ltd. of River Grove; Gold Standard Liquor Store on Broadway Avenue; Chalet Wine and Cheese Shops, Ltd. on Ful- lerton Avenue; Chalet Wine and Cheese Shops, Ltd. of Armitage Avenue; Chalet Wine and Cheese Shops, Ltd. on 53rd Street; Gold Standard Liquor Store on Ridge Avenue, unless and until we shall have demonstrated our exclusive majority representative status pursuant to a Board-conducted election among employees in the above-named Companies. WE WILL NOT give effect to any collective- bargaining agreement between the above- named Companies and ourselves, or to any ex- tension, renewal, or modification thereof. WE WILL NOT cause, or attempt to cause the above-named Companies to discharge, termi- nate, or otherwise discriminate against any em- ployee in regard to his hire, tenure of employ- ment, or any term or condition of employ- ment. WE WILL NOT threaten employees with dis- charge or other reprisals if they fail to sign au- thorization cards or dues-checkoff cards. WE WILL NOT threaten employees with back dues liability should such employees not sign authorization cards or dues-checkoff cards. WE WILL NOT assault or otherwise physical- ly abuse employees for failing to sign authori- zation cards or dues-checkoff cards. WE WILL NOT in any other manner restrain or coerce employees of the above-named Companies in the exercise of the rights guaran- teed in Section 7 of the National Labor Rela- tions Act, as amended. WE WILL, jointly and severally with the above-named Companies, make whole the em- ployees named below, and we will notify those Companies that we have no objection to the employment of those employees. Dawn Smyka Lila Zelkowitz Mary Loftus Jeff Boyell Dave Roder Bill Meany Patricia Peek Susan Nagel Margherita DeMaio Patricia Gulledge LIQUOR & ALLIED WORKERS UNION LOCAL No. 3, RETAIL LIQUOR SALESMEN'S DIVISION, AFFILIATED WITH DISTILLERY, RECTIFYING, WINE AND ALLIED WORKERS' IN- TERNATIONAL UNION OF AMERICA, AFL-CIO DECISION STATEMENT OF THE CASE ROBERT COHN, Administrative Law Judge: The above consolidated proceeding came on for hearing before me 360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in Chicago, Illinois, on various dates commencing March 12, 1979, and continuing through April 10, 1979, based upon charges filed by the Charging Party' on July 7, 1978. The issues to be resolved are whether the Re- spondent Employer 2 violated Section 8(a)(l), (2), and (3) of the Act, and whether the Respondent Union3 violated Section 8(b)(2) and (1) (A) of the Act by engaging in various acts and conduct more particularly described hereinafter. At the hearing, all parties were represented by counsel and were afforded full opportunity to present relevant evidence, to examine and cross-examine witnesses, to argue orally at the close of the hearing, and to file writ- ten briefs. Posthearing briefs were filed by counsel for the General Counsel and by counsel for the Respondent Employer, which have been duly considered. 4 Upon the entire record, including arguments of coun- sel, and my observation of the demeanor of the wit- nesses,5 I make the following: FINDINGS OF FACT 6 I. THE A1.LEGFl) UNFAIR LABOR PRACTICES A. Background The Respondent Employer is engaged in the business of operating liquor stores and wine and cheese shops in Retail Clerks Union, Local 1550, Chartered by Retail Clerks Interna- tional Union, AFL-CIO. The various corporations involved herein, Gold Standard Enter- prises, Inc.; Gold Standard Liquor Store of Skokie; Gold Standard Liquor Store of Waukegan; Gold Standard Liquor Store and Chalet Wine and Cheese Shops, Ltd. of Highland Park; Chalet Wine and Cheese Shops. Ltd. of Glencoe; Gold Standard Liquor Store and Chalet Wine and Cheese Shops, Ltd. of River Grove; Gold Standard Liquor Store of Ridge Avenue; Gold Standard Liquor Store on Broadway Avenue; Chalet Wine and Cheese Shops, Ltd. on Fullerton Avenue; Chalet Wine and Cheese Shops, Ltd. on Armitage Avenue; Chalet Wine and Cheese Shops, Ltd. on 53rd Street, constitute a single employer within the mean- ing of Sec. 2(2) of the National Labor Relations Act, as amended (herein the Act), and will hereinafter be collectively referred to as the Respond- ent Employer or Gold Standard :' Iquor & Allied Workers Union Local No. 3, Retail Liquor Sales- men's Division, affiliated with Distillery, Rectifying, Wine and Allied Workers' International Union of America, AFL-CIO (herein referred to as either Respondent Union or Local 3) 4 An unopposed motion by counsel for the General Counsel to correct the transcript of proceedings in a number of instances is hereby granted. Neither Respondent Employer nor Respondent Union presented an) witnesses in support of their defense in these matters. The record reflects that, concurrent with the instant proceeding, a Federal grand jury was conducting an investigation of the Respondents' activities apparently pur- suant to Sec. 302 of the Act. In view of such investigation, the parties stipulated that several of the named agents of the Respondents, if called as witnesses in tie instant proceeding, would invoke the protection of the f ifth amendment to the Constitution of the United States in response to certain questions posed to them by counsel for the General Counsel re- garding their acts and conduct respecting the issues in the instant pro- ceeding. T here is no issue respecting the jurisdiction of the National Labor Relations Board in this case, or of the status f the labor organizations involved under Sec. 2(5) of the Act. The consolidated complaint alleges sufficient facts respecting the interstate operations of the Respondent Em- ployer, which are admitted by answer. upon which I may, and do hereby, find that the Respondent Employer is an employer engaged in commerce within the meaning of he Act. Moreover, I note that the Board recently asserted jurisdiction over this Employer. See Gold Stand- ard Enterprive. Inc., et l.. 234 NI.RB 618 (1978). the Chicago area, including a liquor store in Waukegan, Illinois. It is the contention of the Respondents in this case that, for many years prior to the events giving rise to the issues in this case, the employees of the Respond- ent Employer (which includes salesmen, cashiers, stock- men, inventory clerks, and the like) have been represent- ed for purposes of collective bargaining by Local 3, and that there had been successive collective-bargaining agreements between Gold Standard and Local 3 during such period.7 The last contract between the parties was assertedly entered into on or about August 1, 1977, to be effective from that date until July 31, 1980 (G.C. Exh. 10). It appears that for some time prior to the summer of 1978, the Charging Party had been engaged in an organi- zational campaign among the employees of the Respond- ent Employer. According to the facts found by the Board in the prior case involving this Employer, the campaign commenced as early as October 1976.8 The record herein reflects that prior to on or about July 5, 1978, 9 a majority of the employees in the unit were not aware that they were represented for purposes of collective bargaining by either Local 162 or Local 3. On or about such date representatives of Local 3 ap- peared at several of the Respondent Employer's stores for the purpose of soliciting employees to sign so-called "dual-purpose cards."" It was in contention with these activities, and particularly with respect to those employ- ees who resisted the signing of such cards, that the issues in this case arose. That is to say, some of the employees who were reluctant to sign such cards without knowing more about the organization (Local 3) and without seeing a copy of the collective-bargaining agreement which purportedly existed between Local 3 and Gold Standard were assertedly threatened with loss of their I also find that the Respondent Union and the Charging Party, and each of them, are labor organizations within the meaning of Sec. 2(5) of the Act. I The record shows that prior to January 1978 the local union which assertedly represented the employees was Local 162, affiliated with the Distillery, Wine, Rectifying and Allied Workers of America, AFL-CIO However, the record further reflects that at that time Local 162 was merged with Local 3 of that International Union. See 234 NLRB 618, 619. It appears from the Decision in that case that a question arose as to whether the employees of the Respondent Em- ployer were covered by a collective-bargaining agreement between Gold Standard and Local 162; however, apparently no contract was ever pro- duced.All dates hereinafter refer to the calendar year 1978 unless otherwise indicated. io The record is unclear as to the exact number of employees in the unit (which comprised the employees of all the stores of the Respondent Employer) since the Respondent Employer did not respond to a subpena for such information which was issued by the General Counsel; accord- ingly, secondary evidence was received on that issue. The estimates ranged from approximately 125 to 150 employees in the unit. A total of 77 employees testified on behalf of the General Counsel to the effect that, prior to on or about July 5, they were unaware of such representation by either Local 162 or Local 3, had never signed an authorization card or dues-checkoff card for either of such organizations, and had never seen a collective-bargaining agreement between G(old Standard and either of such organizations. However, the record does reflect that many years prior to the events in this case officials and supervisory employees of the Respondent Em- ployer signed authorization and dues-checkoff cards on behalf of Local 162, and paid dues to that organization and to Local 3 as late as August 10, 1978 ' These were applications for membership and authorizations for dues checkoff for Local 3 (see G.C Exh. 14). -S - GOLD STANDARD ENTERPRISES, INC. 361 jobs or other reprisals by agents of both Respondents, if such employees did not sign such dual-purpose cards. Some employees were threatened with bodily harm, and some were discharged, as appears more fully infra. It is the position of the General Counsel and the Charging Party that by the engagement in such acts and conduct by agents of the Respondents, the Respondents committed violations of the sections of the Act herein- above set forth. We now come to an examination of the evidence produced in support of such allegations. B. Alleged Acts of Discrimination, Restraint, and Coercion 1. At the Waukegan store During July and August, Irving Salzman was manager of Gold Standard's Waukegan store. He testified that during July two agents of the Respondent Union came to the store for the purpose of having the employees sign union forms which would allow the Union to "take out funds for the employees."'2 Salzman notified his superi- or, Harold Binstein, president of Gold Standard, who ad- vised Salzman to "make sure the employees sign. This is the Union that we are under contract with, and we want all the employees to sign up. If [Salzman] had a problem [Salzman], should call [Binstein] back." ' 3 Salzman fur- ther testified that some of the employees were reluctant to sign, and he again contacted his superiors for instruc- tions. He was instructed that, if such employees did not sign the union forms, they "might have to be terminat- ed." Salzman so advised the employees, and apparently all of them (with one possible exception) signed the forms, although approximately five to six "signed under duress." 4 Salzman explained that the employees who "signed under duress" were "frightened of losing their job." Salzman further testified, without contradiction, that he observed Champagne holding one employee by his collar and telling employees, "If you don't like it, get the hell out." This undenied testimony is corroborated in its essential respects by that of William Thorsen. Analysis The foregoing solicitations and threats by agents of the Respondents is alleged in the complaint to constitute vio- lations of Sections 8(a)(l) and (2) and 8(b)(2) and ()(A) of the Act. The Respondent Employer defends on the grounds that it was merely assisting the Respondent Union in effectuating compliance with the union-security clause of the aforesaid collective-bargaining agree- ment.' 5 The difficulty with that position is that there is substantial evidence in the record, hereinabove referred to, that at the time of the execution of the contract nei- 12 These were, obviously, the dual-purpose cards previously referred to. One of the union representatives was Carl Champagne, an admitted agent of the Respondent Union. S Testimony of Salzman. Binstein was not called as a witness. 14 Testimony of Salzman. i' The collective-bargaining agreement includes a standard union-secu- rity clause requiring membership in the Union as a condition of employ- ment for all employees following 30 days of employment. The contract also includes a checkoff clause providing for the deduction of dues by the Employer from the employee's wages after the employee has execut- ed a written assignment authorizing such deduction ther Local 162 nor Local 3 represented a majority of the employees in the unit. Indeed, the testimony of a major- ity of the employees indicates that they had never heard of the Respondent Union prior to the appearance of that Union's agents at some of the Respondent Employer's stores in July 1978.16 It necessarily follows that the rec- ognition of a minority union by the Respondent Employ- er was an illegal act,' and the execution and enforce- ment of a collective-bargaining agreement pursuant to such recognition was similarly illegal. Additionally, the attempted enforcement of the union-security provision violated Sections 8(a)(l) and (2) and 8(b)(2) and ()(A) of the Act. Also, the solicitations of employees and the threats of discharge or other reprisals by Salzman and Champagne constituted independent violations of Sec- tions 8(a)(l) and 8(b)(2) and ()(A) of the Act. Finally, Champagne's physical manhandling of an employee in an attempt to require such employee to sign a union author- ization card for the Respondent Union constituted re- straint and coercion in violation of Section 8(b)(1)(A) of the Act. 2. At the Ridge store a. Mary Loftus On or about July 5, Audie Davidson, assistant manager of the Ridge store of Gold Standard, told Mary Loftus, a cashier in the store, that representatives of Local 3 would be over to the store in approximately 45 minutes for the purpose of signing up the employees into the Union. Davidson further advised Loftus that Harold (Binstein) had told Davidson that the employees "are all to sign, and there will be no problem."' s Loftus, who the record reflects was a leading advocate of the Charg- ing Party Union, responded to Davidson that she "wasn't signing anything," and went to lunch. When Loftus returned from lunch at approximately 1:15 p.m., she was advised by the store manager, Ralph Fischer, that there were three gentlemen in the back of the store waiting to speak to her. She proceeded, along with another employee (Jeff Boyell), to the back of the store where there were several other employees with the representatives of Local 3. Loftus testified as follows as to what next occurred: A. When we entered this one gentleman had a pad of paper sheets. He put it down on the coffee table and said, "Sign this." Jeff Boyell said to him, "Can we punch in, first," and he says, "Don't bother not till you sign." I was taking off my coat and putting on my jacket I had just left the area for a moment. When I returned again he slammed his hand on the pads of paper and says, "Sign this." '8 I find that the existence of this credible, unrebutted evidence over- comes the rebuttable presumption of majority status created by the exist- ence of the collective-bargaining agreement hereinabove described. Cf Bartenders. Hotel Motel and Restaurant Employers Bargaining .Association of Pocatello, Idaho, et aL., 213 NLRB 651, 652 (1974). See also American Service Corp., etc., 227 NLRB 13 (1976). " International Ladies' Garment Workers' Union, AFL-CIO Bernhard- Altmann Texas Corp.] v. N.L.R.B., 366 U.S. 731 (1961); American Serv- ices Corp., supra. IR Testimony of Loftus, Davidson was not called as a witness. 362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Dave Roder came over to me and said, "He said we must sign. If we don't sign, we no longer work here." JUDGE COHN: Dave who? THE WITNESS: Dave Roder. He was an employee. I said, "We don't have a union." Mr.-the other gentlemen spoke to me. He says, "We are your union." I asked him for identification. He gave me his card, identified himself as being William Strat- ton, Business Representative, Local 3. Q. (By Mr. Bates.) Now, what happened after he gave you his business card, Mary, if anything? A. I said to him, "I never knew we had a union. Nobody ever said we had a union. " He said, "We are here now. You are costing us a lot of money." He said, "We want you to sign up now." I asked for a contract. He had no contract to show us. I said, "Don't you have anything to show us?" He said, "No." I said to him, "I think it's only fair that we see something," and he said, "You don't get to see anything. You sign now or you no longer have a job here." At the close of the conversation, Loftus advised Local 3's representative, Stratton, that he was in no position to fire the employees since he was not their boss. Stratton left and secured Store Manager Ralph Fischer. Fischer, in turn, telephoned his superior, Harold Binstein, who advised that, if the employees did not sign, they would no longer work for Gold Standard. Nevertheless, the group of employees (Loftus, Boyell, Dave Roder, and Bill Meany) refused to sign the cards for Local 3. The employees punched out immediately afterwards and subsequently left the store. I find that their departures were the direct result of the enforce- ment of the union-security provisions of the illegal con- tract between the Respondents in violation of Sections 8(a)(1), (2), and (3) and 8(b)(1)(A) of the Act. On or about September 12, Loftus, pursuant to an invi- tation from the Respondent Employer, returned to the employ of Gold Standard. Shortly thereafter, in Septem- ber, Loftus received two written warnings. One such warning was for arriving a few minutes late for work; the other was for missing work on a Saturday due to a family member being ill in a hospital. Loftus testified without contradiction that, during the course of her em- ployment, she had been late for work on many occasions and had never received a written warning. I agree with counsel for the General Counsel's contention that, had it not been for Loftus' previous activities on behalf of the Charging Party Union, and her refusal to cooperate with the demands of the Respondent Union and the Respond- ent Employer respecting membership in the Respondent Union, she would not have received the written warn- ings for the relatively minor derelictions when she re- turned to work in September. Moreover, the record re- flects that in October and December the Respondent Employer placed four more warnings in Loftus' person- nel file recording various alleged derelicitions on the part of Loftus without notifying Loftus of such action. I fur- ther find that such conduct was designed to harass Loftus and prepare the way for possible future disciplin- ary action against her, all because of her prior union ac- tivities, and to discourage membership in the Charging Party Union. I will therefere recommend that Loftus be made whole for loss of earnings between July 5 and Sep- tember 12, and that the written warnings be expunged from her personnel file. The record reflects that, on or about December 1, 1978, Loftus, along with fellow employee Judith Linder- holm, requested and received permission from the Re- spondent Employer to go to Washington, D.C., for the purpose of testifying at an arbitration proceeding involv- ing the Charging Party Union and the Respondent Union. Each employee received a letter from Harold Binstein advising them that, while they were free to attend such hearing, it was the Company's position that their absence was unauthorized and that the Company did not intend to pay them for the time off or for any expenses they may have incurred. There was nothing in the letters which may be fairly characterized as a "warn- ing" or that the employees would be the subject of dis- crimination because of their attendance at the hearing. In view of the foregoing, I find a lack of substantial evidence upon which to base a finding of violation of Section 8(a)(3) and (1) of the Act, as urged by the Gen- eral Counsel, and therefore deny the General Counsel's request that the letters be expunged from the employees' personnel files (assuming that such letters were placed there). b. Jeff Boyell In July, Boyell was an employee of Gold Standard at the Ridge store and was active on behalf of the Charging Party Union. As previously noted, Boyell was among the group of employees who, on July 5, were terminated from their employment at Gold Standard because of their refusal to sign dual-purpose cards for Local 3. On or about July 7, Boyell received the following letter from Harold Binstein, president of Gold Standard: Under the terms of the collective-bargaining agreement all employees are required to join the Union after 30 days of employment. If employees fail to give Local 3 the monthly dues and iniation [sic] fees and if the Union requests your termination, we shall have no choice but to terminate you. On July 5, 1978, you left work without permis- sion. We have no choice but to regard your action as voluntary termination. However, if you report back to work by July 10, 1978, you will be reinstat- ed. On July 8, Boyell went to the Ridge store and spoke to Manager Ralph Fischer in the presence of two other employees (Patricia Peek and Susan Nagel). Boyell showed Fischer the above letter and asked if it meant that Boyell had to sign an authorization card for Local 3. Fischer responded that he did not know. Boyell returned to the store on July 10, at which time William Stratton, agent for Local 3, was there. Stratton told Boyell that he ---- GOLD STANDARD ENTERPRISES, INC. 363 could no longer work for Gold Standard unless he signed the authorization card for Local 3. Boyell re- sponded that he had received the above letter from Harold Binstein and was under the impression that he could return to work without signing a form for Local 3, whereupon, Boyell telephoned Binstein and advised him of the situation. Binstein responded that Stratton was Boyell's union representative, and that, if Boyell had any problems, he should take them up with Stratton. Binstein assured Boyell that no personal harm would come to him if he signed the card for Local 3.19 Boyell persisted in his refusal to sign the form for Local 3 even though Fischer requested that Boyell "sign it for 30 days so that [Fischerl could train somebody." 2 0 Finally, Boyell signed the form for Local 3 upon the assurance that Fischer would keep the application in the cashbox in his office. 21 The following day, Boyell had a conversation with William Stratton in the Ridge store. Also present were Local 3 Representative Carl Champagne and Store Man- ager Ralph Fischer. Stratton indicated that the applica- tion could not stay in the store, but had to be taken by Local 3 representatives. When Boyell told Straton of the "deal" that was made whereby the applications were to stay in the store, Stratton responded that Boyell had two choices: either the applications were to be removed to Local 3 representatives, or Boyell would no longer work for Gold Standard. Fischer secured the applications, and Champagne, in the presence of Fischer, ripped up the ap- plications and threw them away. Boyell punched out and left the premises. On or about August 23, Boyell received the following letter from Harold Binstein, president of Gold Standard: If the reason you didn't return to work was be- cause you didn't want to join Local 3, this is to inform you that you can return to work at your former position without being required to join Local 3. Please advise me by 8/28/78 if you wish to return to work. Thereafter, Boyell contacted Binstein by telephone and advised him that Boyell had another full-time job so that he would not be in a position to accept full-time employ- ment from Gold Standard; however, Boyell indicated his desire to come back to work as a part-time employee at the Ridge store. Binstein told him to contact Store Man- ager Fischer. When Boyell talked to Fischer, the latter said he had already hired two part-time employees and did not need any more help. However, according to Boyell's testimony, at the time he visited the Ridge store and had the conversation with Fischer, there was a sign 19 In the consolidated complaint herein, the General Counsel construes such an assurance to constitute a threat of harm to an employee should the employee refuse to sign the card. Although I cannot agree that the converse of an assurance constitutes a threat, I do concur with the Gen- eral Counsel to the extent that such a statement impinges upon-and in- terferes with-the right of the employee under Sec. 7 of the Act in viola- tion of Sec. 8(aXI). I also agree that it constitutes unlawful assistance to the Respondent Union in violation of Sec. 8(aX2) of the Act. 20 Testimony of Boyell. Fischer was not called as a witness. 2 Fischer also put the applications of two female cashiers of the store in the cashbox along with Boyell's application. in the front window which read, "Part time help wanted." Boyell did not testify that he called Fischer's attention to that sign on that occasion or at any other time. It may well be that Fischer simply neglected to remove the sign upon his hiring of the other two part- time employees. Accordingly, I am of the view that there is a lack of substantial evidence that the Respond- ent Employer failed and refused to hire Boyell as a part- time employee because of his activities on behalf of the Charging Party. However, I find and conclude that Boyell was terminated on July 5, and on July 10, because he failed and refused to sign the dual-purpose card for Local 3, and, for the reasons set forth above, find that these terminations constituted violations of Sections 8(a)(l), (2), and (3), and 8(bX2) and (1)(A) of the Act. c. David Roder On or about July 5, Roder was an employee at the Ridge store. When he came in to work that day, Store Manager Fischer advised him that there were some Local 3 representatives in the store who wanted to talk with him. Fischer further advised Roder that he should not worry about anything, and that, "if [Roder] would sign up, he would not be fired."2 2 Roder proceeded to the back of the store where he met fellow employee Bill Meany, and they went over to where the Local 3 repre- sentatives were stationed. The latter showed Roder the dual-purpose card and asked him to sign it. When Roder indicated that he wished to make a telephone call, and asked if he could sign the form the following day, the Local 3 representative said, "No, if you don't sign it now, you don't work here." After that, some other em- ployees, including Mary Loftus, approached, and subse- quent conversation ensued, which has been recited here- inabove. Roder's testimony corroborated that discussion, in essence, including that part which recited that Store Manager Fischer had a telephone conversation with Harold Binstein, following which he returned and told the employees that Local 3 had a contract with Gold Standard, and that, if the employees did not sign the dual-purpose cards, they would be fired. Roder, along with the other employees named above, thereupon left the store without signing the card. On or about July 7, Roder received a letter from Harold Binstein, president of Gold Standard, containing the same language as did the letter Binstein sent to Boyell on or about the same date, quoted above. Roder returned to work at the Ridge store on July 8, and worked there until July 11, when he had a conversation in the store with Local 3 Representatives Champagne and Stratton. Also present was Jeff Boyell. On that occa- sion, Stratton asked him to sign the dual-purpose card again, to which Roder responded that he did not intend to do that. Stratton responded, "Why not? Your friend Jeff did." Boyell explained the special "deal," described above under which Boyell signed the card, whereupon, as described above, Champagne went upstairs and tore up the cards of the employees who had signed them under those circumstances. Thereafter, Roder asked Fischer if they could return to work. Fischer responded, 22 See fn. 18, above. 364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "No, I guess you're fired again." Roder left the premises and has not worked for Gold Standard since that date. 23 For reasons expressed hereinabove, I find and con- clude that Roder was terminated from his employment at Gold Standard on or about July 5 and July 11 because he refused to sign a dual purpose card for the Respond- ent Union, and that such conduct violated Sections 8(a)(1), (2), and (3), and 8(b)(2) and (1)(A) of the Act. d. William Meany On or about July 5, Meany was employed by Gold Standard at the Ridge store as a stockman. Meany testi- fied that on that date he, along with other named em- ployees, including Mary Loftus, Jeff Boyell, and Dave Roder, had a conversation with William Stratton, repre- sentative of Local 3, and Ralph Fischer, manager of the Ridge store. Meany's testimony respecting the contents of that conversation corroborates, in its essential re- spects, the testimony of the other employees described above and will not be reiterated here. Meany, along with the other named employees, refused to sign the dual-pur- pose card for Local 3, and was thereby terminated on July 5. Thereafter, on or about July 7 or 8, Meany received a letter from Harold Binstein containing the same lan- guage, quoted above, as the letter Binstein had sent to Boyell dated July 6. Meany indicated to Store Manager Fischer that he would come back, "but if Local 3 started hassling [him] again, that [he] would quit again." Meany returned to work on July 11. At approximately I p.m. that day, Meany was approached by Assistant Store Manager Audie Davidson, who had the form that Wil- liam Stratton had previously asked the employees to sign. Davidson said that, if Meany did not sign the form, Meany could not work that day. Meany advised David- son that he would sign it, did so, and started to work. On July 14, upon being advised by Store Manager Fischer that the Company could not find the card that Meany signed on July 11, Meany signed another card, and has continued to work for Gold Standard since that time. As in the cases of Loftus, Boyell, and Roder, I find that the acts and conduct of the representatives of the Respondents on July 5 violated Sections 8(a)(1), (2), and (3) and 8(b)(2) and (1)(A) with respect to causing the ter- mination of Meany's employment, and I will recommend an appropriate remedy. 23 Thereafter, on or about August 22, Binstein wrote a letter to Roder containing the same language as the letter written to Boyell on that date, recited hereinabove. Roder did not respond to that letter. (The letter was originally identified as G.C. Exh. 52 and offered into evidence; however, upon objection of the Respondents, the record reflects that the letter was withdrawn by counsel for the General Counsel. Nevertheless, it appears in the record as G.C. Exh. 52.) In any event, in his brief, General Coun- sel contends that the backpay due Roder should encompass the dates from July 5 to July 8; and from July II to August 22 1 construe this to mean that General Counsel's position is that the August 22 letter written by Harold Binstein to some of the discriminatees constitutes a valid offer of reinstatement. I note my concurrence with the General Counsel's posi- tion in these circumstances. e. Patricia Peek Patricia Peek was an employee at Gold Standard's Ridge store in July. On or about July 6, she had a tele- phone call, while at the store, from Mary Loftus (who, it will be recalled was terminated on July 5). During that conversation she was told by Assistant Store Manager Audie Davidson that, if it was Mary Loftus with whom she was speaking, "you are not allowed to speak to her during working hours, and to hang up." Peek further tes- tified that she was told by Davidson not to speak with Jeff Boyell who was also terminated on July 5. This oc- curred in spite of the fact that prior to July 5 Davidson had never objected to Peek's speaking with Mary Loftus on the telephone. On or about Monday, July 10, Peek had a conversa- tion with Store Manager Fischer, who advised Peek that some of the employees who had "walked out on him on Wednesday would be receiving a letter from Harold Bin- stein to come back to work on Monday." Peek advised Fischer that everyone got a letter to return to work except Mary Loftus. Fischer responded that "Mary is not going to receive a letter to come back to work, be- cause she is the ring leader." During June Peek had been active on behalf of the Charging Party Union, attending union meetings and signing a card for that Union. On or about July 7, Peek had a conversation with Store Manager Fischer at the Ridge store as follows: Ralph said to me, "Did you go to the meeting on June 25th for Retail Clerks Union?" And I said, "Yes." And he said, "Did everybody go?" And I said, "Yes." He says, "What did you do there?" I said, "Signed a card." He said, "Did you sign a card for Retail Clerks Union?" I said, "Yes." He said, "Did you see a contract?" I said, "Yes, Ralph." He said "How come Mary picked that union?" I said, "I didn't know Mary had anything to do with it." So he asked me what employees were at the meeting, and I told him that we all were. Peek further testified that on that occasion Fischer asked her if she intended to sign a union card for the Re- spondent Union, to which Peek responded, "No." How- ever, later in the day, Fischer advised Peek that he had spoken with President Harold Binstein, and that, if Peek signed the union card for Local 3, Binstein would "per- sonally make sure that nothing would happen to [Peek]." 24 When Peek asked Fischer what would happen if she did not sign the union card for Local 3, Fischer walked away. I find the foregoing interrogation by Fischer concern- ing Peek's union activities, and that of other employees, to be coercive within the meaning of Section 8(a)(1) of the Act. On or about July 12, Peek was at home when she re- ceived a message to call Fischer at work, which she did. The following telephone conversation ensued: 24 See fn. 19, supra, GOLD STANDARD ENTERPRISES, INC. 365 And he asked me if I was going to sign a union card for Local 3, and I said, "No." And he asked me why. And I said, "If you can show me a con- tract I would then be-I would sign a card, but," I said, "Seeing you can't show me a contract I am not going to sign a card." I said, "My father is in a union and he told me not to sign anything unless I saw a contract." So he said, "Well, I guess you are fired." And then he said, "Why don't you think this over and come in tomorrow and give me your answer." And I said "Okay." The following day, Peek went to work and, when she arrived, Assistant Manager Abe Grossman asked Peek if she intended to sign the union card for Local 3, and Peek responded that she would not. Grossman called Fischer at home and Peek had the following telephone conversation with Fischer: Ralph-I spoke to Ralph on the phone, and he said to me, "Why aren't you going to sign the union card?" And I told him, "Ralph, I told you this before. I am not going to sign anything until I see a contract." He said, "You really know how to screw me, don't you?" I said, "Ralph, I am sorry." He said, "Can't you stay for 30 days? After 30 days you can leave. This way you can train people for me. You are leaving me short-handed." I said, "No, Ralph. I am sorry. Goodby." And I walked out. As in the cases of Loftus, Boyell, and the others here- inabove described, I find that the separation of Peek from her employment at Gold Standard on or about July 12 was a direct consequence of the enforcement by the Respondents of a union-security clause contained in an il- legal collective-bargaining agreement, and therefore vio- lative of Section 8(aX)1), (2), and (3) and Section 8(b)(2) and (I)(A) of the Act. Peek testified that during the first week in September she received a letter from Harold Binstein inviting her to return to work. However, Peek telephoned Ralph Fisch- er and advised him that she would not be returning to work because she had, in the meantime, secured a full- time job. Accordingly, I find that Peek effectively waived reinstatement on or about September 5, but that she is entitled to backpay from the date of her discharge (July 12) until September 5. f. Susan Nagel Susan Nagel was a part-time cashier at the Ridge store in July. When she came to work on the afternoon of July 11, two fellow employees, Frank Hamma and Jimmy Cohnen, were engaged in a telephone conversa- tion with Store Manager Fischer, who was at his home. Nagel testified as follows with respect to that telephone conversation: Frank and Jimmy were already in the process of talking with Ralph, and Ralph requested that we sign the Local 3 union paper joining the union and that he told us his job was on the line. Jimmy asked Ralph to see a contract, and Ralph said he did not have one to show us, and again asked us to sign. All three of us told him that we would not sign without seeing a contract, and excuse me, Ralph said that there was nothing he could do. Either he had to have our signature or we were no longer employed. 25 The following day, Nagel had a telephone conversa- tion with Fischer, Nagel being at work at the time and Fischer being at home, as follows: A. I asked Ralph how I stood, and he said he had to have my signature, otherwise I was no longer employed. I told him I still felt the same way I did the previous day and that I would not sign. He said fine, that there was nothing he could do. I asked him if there were any hard feelings. He said no. I asked him if I still had a good reference and he said yes, and that's how it ended. Q. Have you worked at Gold Standard since the 1 Ith of July? A. No. On or about September 5, Nagel received a letter from Respondent Employer inviting her to return to work. However, she declined. For reasons stated above respecting Mary Loftus, Jeff Boyell, and some other employees of the Ridge store, I find that the termination of Nagel's employment with Gold Standard was a direct consequence of the imple- mentation of the union-security clause in the invalid agreement which existed between the Respondents, and was therefore violative of Sections 8(a)(l), (2), and (3), and 8(b)(2) and ()(A) of the Act. It will be recommend- ed that Nagel be reimbursed for any loss of earnings from July 12 to September 5. 3. At the River Grove store a. Margherita DeMaio Margherita DeMaio was an employee at Gold Stand- ard's River Grove store in July. The store manager at that time was Sam Manpearl. DeMaio testified that around the end of June she attended a union meeting which was conducted by the Charging Party. While at work the next day, in Manpearl's office, he asked if she attended the union meeting the previous evening. DeMaio asked Manpearl, "Why? What was said today?"2 6 Manpearl responded, "Nothing, but we all know about it." He reiterated his question and DeMaio 2s Nagel's testimony with respect to this conversation is fully corrobo- rated in its essential respects by the testimony of Frank Hamma. Hamma stated that Fischer also stated that the other employees who had been fired the previous week were terminated because they had not signed the dual-purpose cards for Local 3, and that Hamma and Cohnen also had to sign the cards if they wanted to work there-that Fischer had "called the office, and the office informed him whomever didn't sign the card, could not punch in." I find the foregoing statements of Fischer to constitute further evidence of interference, restraint, and coercion of employee rights, and f illegal assistance and support of Local 3, in violation of Sec 8(a)( I) ad (2) of the Act en DeMaio meant, by nmaking that inquiry, what was said at the meet ing of the store managers which was apparently held hat dy 366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD said, "Yes." Manpearl wanted to know "Who else went?" and DeMaio responded "No one." 2 7 Approximately a week later, DeMaio had another con- versation with Manpearl while at work. At that time, Manpearl interrogated her as to the number of the Local Union of the Charging Party, and who were the employ- ees who were organizing. He also wanted to know what was said at the union meetings. DeMaio responded that she did not know the names of the people and could not remember the number of the Local, and that the princi- pal grievance of the employees was that they wanted more pay. On July 5, when DeMaio returned from lunch with fellow employee Patricia Gulledge, the following oc- curred, which can perhaps be best expressed by the testi- mony of DeMaio: A. Patricia Gulledge and I came back from lunch. And about 15 minutes later two men came into the store, and Sam went to talk to them down the beer aisle. Sam came back up front and told me they wanted to talk to me. I went down there, and there was an older man and younger man. The older man told me to sign this paper because there is a union in the store, and you can't work in the store if you don't belong to the union, and he was pressing charges against Harold Binstein because he wasn't keeping up the union rules, and that the union has been in the store for 20 years. I asked him how come we never heard of it before? He said, "That is not my problem they didn't tell you." I said, "Can I see a contract?" He said he didn't carry them with him. I told him I wouldn't sign until I saw a contract. He got mad and said, "If you don't sign this you will have to leave the store. I can get someone to take your place with one phone call." He walked back and forth. He got aggravated and said, "I don't have time for this." And he left me with the younger union man, and I went back up front. Q. What happened when you got up to the front of the store? A. He just started talking to Patricia Gulledge. JUDGE COHN: Who is he? THE WITNESS: He never said his name. He told Manpearl he had just finished talking to Patricia Gulledge. She asked me if I signed. I told her no. She said she wouldn't. So he left the store. He came back and he said he couldn't get anybody to work our hours that day, so would we work until six? Would we work until this evening? Sam pulled out employee forms, and we filled them out. I asked him, "Are you firing us?" He said, "No. You are quitting." I said, "I never said I was quitting." He said, "Well, punch out and leave." So we did. Several days later, DeMaio received a letter from Bin- stein inviting her to return to work. She telephoned Manpearl to advise that she would be in the following 27 Credited testimony of DeMaio. Manpearl was not called as a wit- ness. Wednesday. He responded that DeMaio would be re- quired to sign a card for Local 3, to which DeMaio indi- cated her acquiescence. Accordingly, DeMaio returned to work for the Respondent Employer on July 12, and signed the card for Local 3. For reasons hereinabove expressed, I find that the forced termination of DeMaio from her employment with the Respondent Employer on July 5 was a direct consequence of her refusal to sign the dual-purpose card for Local 328 in violation of Sections 8(a)(l), (2), and (3), and 8(b)(2) and ()(A) of the Act. I further find that the interrogations of DeMaio by Manpearl were coercive and in violation of Section 8(a)(1) of the Act, and that, by indicating that management knew what occurred at the union meetings, Manpearl created an impression of surveillance of the employees' union activities in further violation of Section 8(a)(1) of the Act. b. Patricia Gulledge Patricia Gulledge was a cashier at the River Grove store during the spring and summer of 1978. She testified that on or about June 26 Store Manager Sam Manpearl came up to her and asked if she knew about the union meeting that had taken place the previous Sunday, and that if she knew that two other named employees had gone to it. Gulledge said, "No." On July 5, Gulledge and fellow employee Margherita DeMaio went to lunch together. Shortly after they re- turned, the representatives of Local 3 came into the store, and one of them came up to Gulledge's cash regis- ter, threw a pad of paper down on the counter, and asked her to sign it. When Gulledge started to read the paper, the agent said he was in a hurry and for Gulledge "just to sign it." At or about that time, DeMaio came up and Gulledge asked her if she had signed. When DeMaio indicated that she had not, Gulledge also declined. The agent for Local 3 said that, if they did not sign the papers, he could replace them-that all he had to do was to make a telephone call because there were people in the Union that needed jobs. The agent asked the women again if they intended to sign, and Gulledge responded, "No." The agent then left the women, and Sam Man- pearl came over and asked if they intended to sign the form. When they responded in the negative, Manpearl said, "If you're not going to sign, I want you to leave." He then told them to punch out, and they complied.20 On or about July 8, Gulledge received a letter inviting her to return to work, which she did the following Monday. After she reported for work, Manpearl advised that she would have to sign the dual-purpose card for Local 3, but that she could add the words, "under threat of losing my job." Gulledge signed the card utilizing that language. Later the same day, Local 3 Representative Carl Champagne came into the store and advised Gul- ledge that he could not accept her application with the added words. After some additional conversation, Gul- 8 Although the union personnel in the store on July 5 were not identi- fied by name by DeMaio, I believe it to be a reasonable inference, in the context of the entire record (particularly the testimony of Patricia Gul- ledge) that these were the same men previously identified as representa- tives of Local 3 29 Testimony of Gulledge. --- ---- GOLD STANDARD ENTERPRISES, INC. 367 ledge agreed to scratch out the additional language on the card and proceeded to do so. For reasons hereinabove set forth, I find that the fore- going statement and interrogation by Manpearl in June constituted coercion and created an impression of sur- veillance in violation of Section 8(a)(1) of the Act, and that her separation from employment on uly 5 to July 10 violated Sections 8(a)(1), (2), and (3), and 8(b)(2) and (I)(A) of the Act. 30 c. Dawn Smyka On July 6, Dawn Smyka, an employee at the River Grove store of the Respondent Employer, had a conver- sation with Store Manager Sam Manpearl as follows: Sam came up to me and said, "Have you heard what is going on?" And I said, "Yes," that the girls had told me about it. And he said that I would have to sign a union form in order to stay working at the store, and he said other people had already signed. And I said, I said, "Sam, I have been working here almost a year, and I have never once heard mention of a union. Isn't it odd once we try to get our own union in that Gold Standard union would step in?" He said, "I knew about the union." I said, "How long have you known about it?" He said he had known for months. Then we looked at each other, and he walked away. Shortly thereafter, Smyka telephoned Local 3 Repre- sentative Carl Champagne and had the following tele- phone conversation with him: Okay. I said, "Is it true I have to sign this form in order to stay working?" And he said, "Yes." I said, "You mean to tell me I have two options: I can either sign the form or I have to leave?" And he said, "Yes." I said, "If I sign the form can I see the contract?" He said, "It's against the law for you-" He says, "It's against"-first I said, "I think 30 Gulledge worked continuously for the Respondent Employer from July 10 to September 5 with the exception of taking a short vacation in August to the State of Texas. Prior to the taking of such vacation, Gul- ledge advised Manpearl that she was planning to relocate and find a job in Texas, that such move had nothing to do with her previous experience with joining the Union, described above, and that she would advise Man- pearl in time for him to train a new employee. When she returned from vacation, Manpearl had not "put her on the schedule" and gave her a different job, pricing wine. She thereafter resigned, and, as the record in- dicates, moved to Texas. I find that there is insubstantial evidence upon which to base a finding that the Respondent Employer caused Gulledge's resignation in Septem- ber. As the record indicates, Gulledge worked for the Respondent Em- ployer for approximately 2 months after July 10 with nothing to indicate that it was seeking an opportunity for recriminations because of her fail- ure to sign the card for Local 3. There is nothing in the record to indi- cate that Gulledge was particularly active on behalf of the Charging Party, or that, if she was, the Respondent Employer knew about it. Final- ly, although there is some evidence in the record that Gulledge assured Manpearl that she would be back to work for "a couple of months" when she returned from vacation, and he assured her that her job would be available when she returned, one cannot fault an employer from assur- ing itself of employee services in the light of Gulledge's indication that she intended to remain permanently in Texas. In view of all of the foregoing, I find, as indicated, that there is a lack of substantial evidence upon which to base a finding that the resignation of Gulledge in September was causally related to her union activities. it's against the law for me to sign the form without reading the contract first." He said, "It is against the law for you to read the contract until you have signed the form." I said, "If I sign this form can I then see the contract?" He said, "No, it hasn't been completed yet." I said, "You mean to tell me you have been our union since this store opened and there isn't a contract I can read?" He said there would be a meeting in two or three weeks. There will be a meeting for the employees and I can see the contract then. I said, "I am not going to sign the form. I guess that means I have to leave." He said, "Yes." Thereafter, Smyka advised a fellow employee to tell her supervisor, Bonnie Berger, that Smyka had deter- mined that she would not sign the form for Local 3, and that she was leaving; that the supervisor knew where Smyka lived; and that she could "get in touch with [Smyka] if she wants to."31 The following day, Supervisor Berger telephoned Smyka and asked if she would return to work. Smyka re- sponded that she was unable to sign the form and in- quired whether she could wait 2 or 3 weeks until the collective-bargaining agreement between the Respondent Employer and Local 3 was ready.32 Berger responded that she was sorry but for business reasons she could not wait 2 or 3 weeks for Smyka, and that she would have to find someone to replace her. Accordingly, Smyka has never returned to work for Gold Standard. On the basis of the foregoing, I find and conclude that the termination of Dawn Smyka was a direct conse- quence of her refusal to sign the dual-purpose card for Local 3, and therefore, for reasons hereinabove cited, find that such conduct on behalf of the Respondents was in violation of Sections 8(a)(1), (2), and (3), and 8(b)(2) and (1)(A) of the Act. 4. At the Skokie store Lila Zelkowitz On or about July 6, Leo Ostrow, manager of the Re- spondent Employer's Skokie, Illinois, store, told Lila Zelkowitz, a cashier, to go talk to a representative of Local 3, who was in the store at the time. The Local 3 representative asked her if she would sign a form, and she declined. That was the end of the conversation that day. However, the following Monday, July 10, Local 3 rep- resentatives were in the store again, and spoke to some of the employees, including Zelkowitz. She testified as follows as to what occurred on that occasion: He asked us to sign this form to join the union, and I said, "What are the benefits, what are the wages?" He said, "Just sign the form." I said, "No," and he said, "You are fired." 3 Testimony of Smyka. 32 In her telephone conversation of July 7, with Local 3 Representa- tive Champagne, Smyka asked if she could see the contract between Gold Standard and Local 3. Champagne responded that it had not been completed yet, but there would be a meeting for employees in 2 or 3 weeks, and she could see the contract at that time. 368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Shortly thereafter, Zelkowitz spoke with Manager Ostrow on the telephone. He asked if she had signed the union form. When she said that she had not, he advised her that she was fired. Zelkowitz never received an invitation from Gold Standard to return to work. I find, for the reasons set forth above, that the termi- nation of Zelkowitz was a direct result of the implemen- tation by the Respondents of the union-security clause in their illegal contract. Accordingly, I find that such ter- mination was violative of Sections 8(A)(1), (2), and (3), and 8(b)(2) and ()(A) of the Act. 5. At the Highland Park store Curtis Thomas Prior to July 1978 Curtis Thomas had been employed continuously by Gold Standard since 1969 as a truck- driver. His duties in that regard were to deliver mer- chandise from store to store and to assist the receiving men and stockmen in loading and unloading the truck. During the last week in June, Thomas, apparently being aware of the organizational drive of the Charging Party, went to the office of Harold Binstein, president of Gold Standard, and advised Binstein that "[t]hey were trying to get a union in the place." He further advised Binstein that he wanted Binstein to know that he was not in- volved. Binstein replied, "Yes, I know that. Thanks very much." The following week, Thomas observed union repre- sentatives at the various Gold Standard stores he visited, soliciting employees to sign union cards. The first con- versation he had with such union representatives oc- curred at the Skokie store where he was standing in the company of Store Manager Ostrow and two other em- ployees. The union representatives who were soliciting cards on behalf of Local 3 stated to Thomas, "You sign this card or else you're fired." When Thomas asked if he had a choice, the union representative replied, "Yes. You either sign this card or you don't move that truck." Thomas walked away, but, upon thinking of his family responsibilities, came back and signed the card. A couple of days later, on or about July 8 or 9, Thomas was in the shipping department at the Highland Park store where he had a conversation with Receiving Supervisor Nick Laub. Laub told Thomas that "They were taking him off of the truck." When Thomas asked, "Why?" Laub responded, "Well, they think you are mixed up in the Union." Thereafter, until on or about October 5, Thomas worked at Gold Standard's Highland Park store at the same rate of pay he received previous- ly. However, he worked 40 hours per week rather than the 44 hours per week he worked as a truckdriver. It is the contention of counsel for the General Counsel that the transfer and diminution of hours was discriminatory conduct on the part of the Respondents. I cannot agree that there is substantial evidence in the record to support the contention of counsel for the Gen- eral Counsel. On cross-examination, Thomas readily ad- mitted that on many occasions prior to July he had ex- pressed a desire to work inside the store rather than drive a truck. The evidence further shows that, although Thomas claimed he was employed in the Highland Park store as a stockman, he admitted that he waited on cus- tomers as did the salesmen. Furthermore, on cross-exami- nation, Thomas conceded that after July, when he was taken off the truck, he stated that he wanted to stay off the truck, and that he wanted to work in the store as a salesman. Finally, it does not appear that Thomas took an active part in the organizational campaign of the Charging Party Union. Indeed, as the evidence shows, he indicated to President Harold Binstcin that he was not involved in such campaign. Under these circumstances, a statement of a lower-level supervisor such as Nich Laub is not compelling evidence of the Respondent Employ- er's motivation. Accordingly, as previously indicated, I find that there is a lack of substantial evidence to sustain the complaint with respect to the alleged discrimination toward Curtis Thomas, and I will recommend that the complaint be dismissed to that extent.3 3 C. Additional Instances of Interference, Restraint, and Coercion In the above discussion of the evidence respecting the discriminatory terminations of some employees who re- fused to sign dual-purpose cards for Local 3, the evi- dence discloses that in most instances there were threats made by agents of the Respondents to the effect that, if the employees failed to sign such cards for the Respond- ent Union, such employees would be terminated. It is elemental, of course, that such threats, uttered under the circumstances of this case, i.e., where there is no valid union-security clause, constitute restraint and coercion in violation of Sections 8(a)(l) and 8(b)(1)(A) of the Act. Other instances of restraint and coercion have also been pointed out, such as coercive interrogation, creating an impression of surveillance, etc. The complaint herein al- leges instances of similar violative conduct on the part of agents of the Respondents in cases where the employees signed the dual-purpose cards and therefore were not terminated. Of course, the threats of discharge or retali- ation which were uttered on those occasions were no less violative of Section 8(a)(1) and 8(b)(1)(A) than in those cases where the employees were terminated. How- ever, I believe it would unduly prolong and burden this Decision to discuss each and every such instance of these similar threats in this section of the Decision since they were, as in the previous section, uncontradicted (and therefore no credibility issue is involved) and would not enlarge the remedy to be ordered in the case. I will, however, in this section of this Decision, set forth evi- dence of some different kinds of conduct which should be noted and remedied as follows: In the conversation with employees in the Waukegan store on or about July 8, Local 3 Representative Cham- a'1 I find, based upon the credited and undenied testimony of Thomas, that the statement of Harold Binstein to Thomas on or about June 26, to the effect that Binstein knew that Thomas was not involved in the Union, constituted an impression of surveillance; and that the statement of Laub to Thomas on or about July 14. to the effect that Thomas was being transferred because he had engaged in union activities, and the threat of the representative of ocal 3 to Thomas that Thomas either sign the card for Local 3 or be fired, constituted independent violations of Sec. 8(aXl) with respect to the Respondent Employer and a violation of Sec. 8(b)(I)(A) with respect to the Respondent Union. GOLD STANDARD ENTERPRISES, INC. 369 pagne threatened that Local 3 could assess the employ- ees with back dues from the time they were employed by the Company unless the employees cooperated with Local 3. Such threat constitutes restraint and coercion in violation of Section 8(b)(l)(A). 4 On or about February 10, 1979, at the Waukegan store of Gold Standard, Robert Viau received a subpena to appear at the hearing, and told Store Manager Gary Welch about it. Welch responded that, if he received a subpena, he would not appear at the hearing, and the au- thorities would have to find him. Welch further said that, if he lost his job because of the turmoil brought about by the union proceeding, "heads would roll." I construe the foregoing to constitute a threat against em- ployees for exercising their Section 7 rights in violation of Section 8(a)(1) of the Act. Subsequently, according to Viau's undenied testimony, Welch had other conversa- tions in the store about the Union and threatened that, if the Union came in to the store, he would make it very hard on employees who worked there, and that the em- ployees' privileges would be taken away. I further find this threat to be violative of Section 8(a)(1) of the Act. II. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents as set forth above, which have been found to constitute unfair labor prac- tices occurring in connection with the operations of the Respondent Employer, have a close, intimate, and sub- stantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes bur- dening and obstructing commerce and the free flow thereof. CONCLUSIONS OF LAW 1. The Respondent Employer is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Charging Party Union and the Respondent Union are labor organizations within the meaning of Sec- tion 2(5) of the Act. 3. By discharging or otherwise discriminating against its employees, in the manner set forth above, because they either engaged in activities on behalf of the Charg- ing Party Union, or because they failed and refused to sign dual-purpose cards for the Respondent Union, as de- scribed above, and by thereafter failing and refusing to reinstate them, the Respondent Employer has violated Section 8(a)(l), (2), and (3) of the Act. 4. By recognizing the Respondent Union Local 3 as the sole collective-bargaining representative of its em- ployees, and by executing, maintaining, and implement- ing a collective-bargaining agreement with it at a time when said Respondent Union did not enjoy majority status among its employees, the Respondent Employer has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(2) and (1) of the Act. 5. By executing, maintaining, and implementing a col- lective-bargaining agreement with the Respondent Em- 3 A similar threat was made at the Ridge store on or about July 5 by Local 3 Representative William Stratton to Mary Loftus. ployer at a time when the Respondent Union did not enjoy majority status among the employees of the Re- spondent Employer, the Respondent Union has re- strained and coerced, and is restraining and coercing, the employees of the Respondent Employer in the exercise of the rights guaranteed them in Section 7 of the Act in violation of Section 8(b)(l)(A) of the Act. 6. By causing or attempting to cause the Respondent Employer to discriminate against its employees in viola- tion of Section 8(a)(3) of the Act, the Respondent Union has engaged in conduct violative of Section 8(b)(2) and (I)(A) of the Act. 7. By threatening employees with discharge or other reprisals for failing to sign dual-purpose cards for Re- spondent Local 3, and by physically assaulting an em- ployee for failure or refusal to sign a dual-purpose card for Respondent Local 3, the Respondent Union has re- strained and coerced, and is restraining and coercing, employees in the exercise of the rights guaranteed them in Section 7 of the Act in violation of Section 8(b)(1)(A) of the Act. 8. By threatening employees with discharge or other reprisals for refusing to sign a dual-purpose card for Re- spondent Local 3, by coercively interrogating employees concerning their own or other employees' union activi- ties, by creating an impression of surveillance of employ- ees' union activities, by soliciting employees to sign dual- purpose cards for Respondent Local 3, by advising em- ployees that other employees had been terminated and would not be reinstated because they had failed and re- fused to sign dual-purpose cards for Respondent Local 3, and by threatening employees with more onerous work- ing conditions if they engaged in union activities, the Re- spondent Employer has interfered with, restrained, and coerced employees in the exercise of the rights guaran- teed them in Section 7 of the Act in violation of Section 8(a)(l) of the Act. THE REMEDY Having found that the Respondents have engaged in unfair labor practices, I shall recommend that they be or- dered to cease and desist therefrom and take certain af- firmative action designed to effectuate the policies of the Act. It will be recommended that the Respondent Employ- er be ordered to withdraw all recognition from the Re- spondent Union as the representative of any of its em- ployees for the purpose of collective bargaining respect- ing wages, rates of pay, hours of employment, or other terms and conditions of employment, unless and until the Respondent Union shall have demonstrated its majority representative status pursuant to a Board-conducted elec- tion among the Respondent Employer's employees. It will also be recommended that the Respondent Employ- er be order to cease and desist from giving any force and effect to the current collective-bargaining agreement ex- ecuted and maintained by the Respondents. It will be recommended that the Respondent Union be ordered to cease and desist from acting as the collective- bargaining representative of any of the Respondent Em- ployer's employees, unless and until the Respondent Union shall have demonstrated its majority representa- 370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tive status pursuant to a Board-conducted election among the Respondent Employer's employees. It will also be recommended that the Respondent Union be or- dered to refrain from seeking to enforce the current col- lective-bargaining agreement executed and maintained by the Respondents. It having been found that the Respondents unlawfully discriminated against certain employees by causing their termination of employment through the enforcement of an illegal collective-bargaining agreement, it will be rec- ommended that, to the extent that the Respondent Em- ployer has not already done so, such employees be of- fered immediate and full reinstatement to their former positions or, if such positions no longer exist, to substan- tially equivalent positions, without prejudice to their se- niority or other rights and privileges, and that the Re- spondent Employer, jointly and severally with the Re- spondent Union, make them whole for any loss of earn- ings that they may have suffered as a result of the dis- crimination against them. Any backpay found to be due shall be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977).35 It will be further recommended that, for the reasons set forth above, the written warning notices placed in the personnel file of employee Mary Loftus since September 12, 1978, shall be removed and expunged. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER3 6 A. The Respondent Employer, Gold Standard Enter- prises, Inc., Gold Standard Liquor Store of Skokie, Gold Standard Liquor Store of Waukegan, Gold Standard Liquor Store and Chalet Wine and Cheese Shops, Ltd. of Highland Park, Chalet Wine and Cheese Shops, Ltd. of Glencoe, Gold Standard Liquor Store and Chalet Wine and Cheese Shops, Ltd. of River Grove, Gold Standard Liquor Store on Broadway Avenue, Chalet Wine and Cheese Shops, Ltd. on Fullerton Avenue, Chalet Wine and Cheese Shops, Ltd. on Armitage Avenue, Chalet Wine and Cheese Shops, Ltd. on 53rd Street, Gold Standard Liquor Store on Ridge Avenue, Chicago, Illinois, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from: (a) Recognizing Liquor & Allied Workers Union Local No. 3, Retail Liquor Salesmen's Division, affiliated 36 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). The General Counsel has requested that interest be ordered at the rate of 9 percent rather than the rate prescribed in Florida Steel Corporation, supra, on the ground that recent rises in the interest rate result in employ- ees being made less than whole under that formula. While I may be per- sonally sympathetic to the argument of the General Counsel, the Board has recently reversed an Administrative Law Judge for granting the Gen- eral Counsel's motion in this respect. See Southern California Edison Company, 243 NLRB No. 62, fn. 1 (1979). a3 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. with Distillery, Rectifying, Wine and Allied Workers' International Union of America, AFL-CIO, as the repre- sentative of any of its employees for the purpose of col- lective bargaining with the Respondent Employer con- cerning wages, rates of pay, hours of employment, or any other term or condition of employment, unless and until said labcr organization shall have demonstrated its exclusive majority representative status pursuant to a Board-conducted election among the Respondent Em- ployer's employees. (b) Giving effect to any collective-bargaining agree- ment entered into between the Respondent Employer and the Respondent Union, or to any extension, renewal, or modification thereof. (c) Unlawfully assisting or supporting Respondent Local 3. (d) Discharging or otherwise discriminating against employees because they failed to join or sign dual-pur- pose cards for Respondent Local 3. (e) Coercively interrogating employees concerning their own or other employees' union activities. (f) Creating an impression of surveillance of employ- ees' union activities. (g) Soliciting employees' signatures on dual-purpose cards for Respondent Local 3. (h) Advising employees that other employees were ter- minated or discharged and would not be reinstated be- cause such employees refused to sign dual-purpose cards for Respondent Local 3. (i) Threatening employees with more onerous working conditions because they had engaged in union activities. 0) Threatening employees with discharge for engaging in union activities, or because they failed or refused to sign dual-purpose cards for Respondent Local 3. (k) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form, join, or assist Retail Clerks Union, Local 1550, chartered by Retail Clerks Interna- tional Union, AFL-CIO, or any other labor organiza- tion, to bargain collectively through representatives of their own choosing, to engage in other concerted activi- ties for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Offer Dawn Smyka and Lila Zelkowitz immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights or privileges, and, jointly and severally with Respondent Union, make them and the following employees whole for any loss of earnings they may have suffered by reason of the discrimination against them in the manner set forth in the section of this Decision entitled "The GOLD STANDARD ENTERPRISES, INC. 371 Remedy": 7 Mary Loftus from 7/5/78 to 9/12/78;38 Jeff Boyell from 7/5/78 to 7/11/78 and from 7/11/78 to 8/ 22/78; Dave Roder from 7/5/78 to 7/8/78 and from 7/ 11/78 to 8/22/78; Bill Meany from 7/5/78 to 7/11/78; Patricia Peek from 7/12/78 to 9/5/78; Susan Nagel from 7/12/78 to 9/5/78; Margherita Demaio from 7/5/78 to 7/12/78; and Patricia Gulledge from 7/5/78 to 7/10/78. (b) Remove and expunge from the personnel file of Mary Loftus all written warnings issued to her since September 12, 1978. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other rec- ords necessary to analyze the amount of backpay due under the terms of this recommended Order. (d) Post at its stores in the Chicago, Illinois, area, in- cluding its store in Waukegan, Illinois, copies of the at- tached notice marked "Appendix A."3 9 Copies of said notice, on forms provided by the Regional Director for Region 13, after being duly signed by the Respondent Employer's authorized representative, shall be posted by it immediately upon receipt thereof, and be 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 the Respondent Employer to insure that said notices are not altered, defaced, or covered by any other materi- al. (e) Post at the same places and under the same condi- tions set forth in subparagraph (d) above, and as soon as they are forwarded by the Regional Director, copies of the Respondent Union's notice herein marked "Appendix B." (f) Notify the Regional Director for Region 13, in writing, within 20 days from the date of this Order, what steps the Respondent Employer has taken to comply herewith. B. The Respondent Union, Liquor & Allied Workers Union Local No. 3, Retail Liquor Salesmen's Division, affiliated with Distillery, Rectifying, Wine and Allied Workers' International Union of America, AFL-CIO, 37 All discriminatees other than Smyka and Zelkowitz either returned to work for the Respondent Employer or failed to do so pursuant to a valid offer of reinstatement from the Respondent Employer. I agree with counsel for the General Counsel that the letter dated on or about July 6 (see first letter quoted in Boyell's testimony, supra) did not constitute a valid offer of reinstatement because it was not unconditional; i.e., it con- ditioned continued employment upon membership in and payment of dues to Respondent Local 3, which lacked majority support. However, a subsequent letter sent to such discriminatees on or about August 22 (see second letter sent to Boyell by Binstein, supra) eradicated that condition. Accordingly, discriminatees who failed and refused to return to work fol- lowing receipt of that letter waived reinstatement. 38 Loftus never received a letter containing the offer to return to work. However, she returned to work on September 12 pursuant to an oral offer. S9 In the event that this 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 Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." Chicago, Illinois, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Acting as the exclusive bargaining representative of any of the employees of the Respondent Employer for the purpose of collective bargaining with said Employer concerning wages, rates of pay, hours of employment, or other terms and conditions of employment, unless said Respondent Union shall have demonstrated its exclusive majority representative status pursuant to a Board-con- ducted election among the Respondent Employer's em- ployees. (b) Giving effect to any collective-bargaining agree- ment between the Respondent Employer and the Re- spondent Union, or to any extension, renewal, or modifi- cation thereof. (c) Threatening employees with discharge or other re- prisals should they fail to sign a dual-purpose card for Respondent Local 3. (d) Threatening employees with back dues liability unless such employees sign a dual-purpose card for Re- spondent Local 3. (e) Assaulting or otherwise physically abusing employ- ees for failing to sign a dual-purpose card for Respond- ent Local 3. (f) In any other manner restraining or coercing em- ployees of the Respondent Employer in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which it is deemed necessary to effectuate the policies of the Act: (a) Jointly and severally with the Respondent Employ- er make whole the employees listed in Section A, para- graph 2(a), above, and give written notification to the Respondent Employer that the Respondent Union has no' objection to their employment. (b) Post at its offices and meeting halls in the Chicago, Illinois, area copies of the attached notice marked "Ap- pendix B."40 Copies of said notice, on forms provided by the Regional Director for Region 13, after being duly signed by the Respondent Union's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent Union to insure that said no- tices are not altered, defaced, or covered by any other material. (c) Forthwith mail copies of said notice marked "Ap- pendix B" to the said Regional Director, after such no- tices have been signed as provided herein, for posting where notices to employees are customarily posted at the places of business of the Respondent Employer. (d) Notify the Regional Director for Region 13, in writing, within 20 days from the date of this Order, what steps the Respondent Union has taken to comply here- with. IT IS FURTHER ORDERED that the complaint be dis- missed in all other respects. '° See fn. 39, supra.