Joseph Antell, Inc.

818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Notify the Regional Director for Region 7, in writing , within 20 days from the receipt of this Recommended Order, what steps the Respondent has taken to comply herewithp It is further ordered that subparagraphs 9(a)(1) and ( 3) of the complaint herein be, and they hereby are , dismissed. I If this Recommended Order is adopted by the Board , this provision shall be modified to read : "Notify the Regional Director for Region 7, in writing , within 10 days from the date of this Order , what steps Respondent has taken to comply herewith " APPENDIX NOTICE To ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify our employees that: WE WILL NOT convey the impression of surveillance of union activities by statements to employees. WE WILL NOT in any like or related manner interfere with, restrain, or coerce any of our employees in the exercise of their rights to self-organization , to form, loin, or assist labor organizations , to bargain collectively through representatives of their own choosing , and to engage in other concerted activities for the pur- poses of collective bargaining or other mutual aid or protection as guaranteed by Section 7 of the Act, or to refrain from any and all such activity. All our employees are free to become, remain, or refrain from becoming or remain- ing, members of District 50, United Mine Workers of America or any other labor organization. MILLER INDUSTRIES , INCORPORATED, Employer. Dated------------------- By------------------------------------------- (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered , defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 500 Book Building, 1249 Washington Boulevard, Detroit, Michigan , Telephone No. 226-3210, if they have any question concerning this notice or compliance with its provisions. Joseph Antell, Inc. and Retail Shoe Council of New England, New England Joint Board, Retail Wholesale Department Store Union, AFL-CIO. Case No. 1-CA-4685. May 25, 1965 DECISION AND ORDER On March 223, 1965, Trial Examiner W. Edwin Youngblood issued his Decision in the above-entitled proceeding, finding that the Respond- ent had engaged in certain unfair labor practices alleged in the com- plaint and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Respondent filed exceptions to the Trial Examiner's Decision and a brief in support thereof. The General Counsel filed a brief in support of the Trial Examiner's Decision. 152 NLRB No. 95 JOSEPH ANTELL, INC. 819 Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Members Fanning, Brown, and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, the briefs, and the entire record in this case, and hereby adopts the Trial Examiner's findings,' con- clusions,2 and recommendations. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as alnended, the National Labor Relations Board hereby adopts as its Order the Order recommended by the Trial Examiner and orders that the Respondent, Joseph Antell, Inc., its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recom- mended Order. ' In his chronological recital of the facts , the Trial Examiner inadvertently found that Orr was discharged on April 20 , 1964 . The date should read April 25, 1964, and Is hereby corrected. 2In finding that Respondent knew of Orr 's union activities , Member Jenkins does not rely on the fact that there was a small number of employees ( 11) in the store. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This proceeding arises upon the complaint of the General Counsel issued Septem- ber 1 , 1964,1 upon a charge filed July 29 by Retail Shoe Council of New England, New England Joint Board , Retail Wholesale Department Store Union , AFL-CIO, herein called the Union . The complaint, as amended at the hearing, alleges in sub- stance that Joseph Antell , Inc., herein called Respondent , violated Section 8(a) (1) of the Act by threatening an employee with loss of employment unless he voted against the Union, and interrogating an employee with regard to how he and other employees would vote in the election , and violated Section 8 ( a)(3) of the Act by discharging Dean Orr. Respondent's answer to the complaint denies the commission of any unfair labor practices. All parties were represented at the hearing before Trial Examiner W. Edwin Youngblood on October 22 in Boston, Massachusetts . Briefs have been received from the General Counsel and the Respondent and have been duly considered. Upon the entire record ,2 including my evaluation of the witnesses based upon the evidence and by observation of their demeanor, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent, a Massachusetts corporation , is engaged in the sale and distribution of women's shoes with its principal office and place of business at Zero Newbury Street, Boston, Massachusetts. Respondent also operates stores at Peabody and Wellesley, Massachusetts. During 1963 Respondent sold products valued in excess of $500,000 I Unless otherwise indicated , all dates herein are in 1964. 2 The name of the Trial Examiner is corrected wherever It appears in the transcript to read as set forth above. 820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and received products valued in excess of $50,000 directly from outside the Common- wealth of Massachusetts . Respondent admits, and I find, that it is engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. IT. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The facts In the latter part of March a meeting of employees of Respondent's Boston store was held in the Greyhound Bar. At this meeting, the employees, at the direction of Shop Steward Joseph Fazzini, cast ballots as to whether they wanted a petition to be filed withdrawing from the Union.3 The results of that poll were announced at the meeting to be six in favor of withdrawing from the Union and four opposed to this action.4 On March 26, a petition for decertification of the Union was filed by Fazzini and notice of hearing issued on April 2, setting the date of hearing as April 16.5 On April 16, Dean Orr went to the Boston store seeking employment.6 Orr was introduced to Patrick Antell, manager of the Boston store, who called Joseph Antell, president of Respondent, because, according to Patrick Antell, Joseph Antell did all of the hiring. Orr told Joseph Antell that he was seeking employment and Antell then interviewed Orr. Orr related his experience and was invited to Joseph Antell's office on the second floor where he filled out an application blank and social security card. A discussion of money then ensued during which Antell explained Respond- ent's method of paying its employees. Antell also commented on the pay records of several employees and said that he would be very happy if Orr could equal their records. Orr had previously commented that his most recent employment was at Filene's at the South Shore Plaza at Braintree. Antell asked how business was on the South Shore Plaza and mentioned that he had put in a better grade of women's shoe. Antell then told Orr that he thought that this would be a good spot for him as manager of the store since he had quite a few personal contacts on the South Shore and was familiar with the area. Antell then inquired of Orr if he could go over to the store in Wellesley. Orr replied that he could not because of a transportation problem adding that he could only work in Boston. Antell stated that could be worked out by transferring another person from the Boston store to Wellesley. Then Antell started to explain to Orr "how the boys in the shop were taking a vote and they decided they didn't want union representation anymore." Orr said that he did not care for the Union anyway so that it did not make any difference to him.7 Antell explained that the Union was not doing much for the men and that he had a much better health and welfare plan that he could put into effect. Antell continued by explaining the benefits to Orr and said that they would be better than the plan that the Union had. Antell said that he thought the working conditions would be much better if they could all work closely together as a family, and said that he would then be able to do more things for the employees. Antell continued by saying that they would not be "limited by all these rules and regulations" and that there would be a "much nicer association." Orr and Antell then discussed generalities about the business and Antell told Orr to report to work in the Boston store about 9 a.m. Monday, April 20.8 Also during this conversation Antell told Orr that under the 3 The employees have been represented by the Union since 1945 and Respondent and the Union have had contractual relationships since that time, the most recent contract having an expiration date of June 1. (Respondent's Exhibit No. 1, General Counsel's Exhibit No 2(c) ) 4 The foregoing except where otherwise indicated is based on the credited testimony of employee Earl G. Keel. General Counsi9's Exhibits Nos 2(a) and (b). Orr testified that this occurred on April 9. Orr asserted that the date April 20 on his employment application was an error Orr did admit, however, the possibility that lie was in error. The parties stipulated that the correct date was April 16, and I so find 4 The finding in this sentence is based on the credited testimony of Joseph Antell 8 Here again Orr was in error about dates testifying that he started to work on April 13. The parties stipulated, however, that he started on April 20, and I so find. JOSEPH ANTELL, INC. 821 contract with the Union he would be required to join the Union and that Respondent had a checkoff.9 On Monday , April 20, Orr started to work at the Boston store. That same day Matthew Antell , Respondent's treasurer and brother of Joseph , came into the store, introduced himself to Orr, and told Orr how happy he was to have him with the firm, that he looked like a good man, and that things should work out fine . On Wednesday or Thursday, April 23, Orr inquired of Matthew Antell about ordering a particular kind of shoe. Matthew Antell told Orr that he had the catalogue in his office and that Orr could order anything he wanted from the catalogue and that he , Matthew Antell, would be able to get them for him.10 On Thursday, April 23, employees of the Boston store held a union meeting at the union hall. Fazzini was questioned by various employees about the decertification petition which he had filed. Fazzini said that he felt that the employees could do better without the Union and could get a better health and welfare plan from the Company than from the Union. It seem that employee Earl G. Keel had engaged in a violent argument that day with Patrick Antell. Orr told Keel that he would have been fired after this argument if the employees had not had a union . On also asked Fazzini for the reason he would throw away all the benefits employees had gotten. Orr also told Fazzini that he "must have been approached somewhere along the line." Orr also said to Fazzini that "you just don't take something you have in your hand and throw it right out of the window for nothing at all." Fazzini did not reply to Orr. Orr related his own experiences at working and said he thought it was much better to be working in a union shop than in a nonunion shop. Orr continued by saying he felt "that they would be out of their mind if they voted the union out, that without a union they had no job protection whatsoever , and that he would seriously recommend that they remain in the union ...." Other employees also spoke in favor of the Union at the meeting. After the meeting Orr told Attorney Rich that he was afraid that what he said might get back to the Company and he might be out of a job.11 The following Saturday , April 20, at 5 p.m., Orr was discharged by Matthew Antell. Matthew Antell told Orr that business was "a little slow," that the other salesmen some of whom had been with him for quite some time were not making the money they should be making, and that with Orr on the selling floor their pay was being cut.12 Matthew Antell then indicated that he disliked letting Orr go because he thought that On would be an asset to the store and said that if business picked up they would be very happy to call him back. Orr inquired if business did pick up and he was called back would it be on a permanent basis. Matthew Antell assured him that if he came back it would be on a permanent basis and Orr was then discharged.13 On May 1 the Regional Director issued a Decision and Direction of Election which election was conducted on May 27.14 On Friday or Saturday preceding the election, Keel had a telephone conversation with C. Ronald Bergman .'° Keel had worked at the Peabody store under Bergman when first employed by Respondent . Bergman told Keel during this conversation that "if an election was taken now, the vote would be six to four" and that if Keel voted for the Union the vote would be five to five and therefore he would be identified as the one who cast the five-to-five vote. Bergman 6 The foregoing is based on the credited testimony of Orr except where otherwise in- dicated. Antell denied that he told Orr that he thought "it would be better working closer together as a family without a union " Antell also denied that he Said anything comparing the union health and welfare plan with the Company 's health and welfare plan or that he compared working conditions under union and nonunion conditions Orr's testimony was given in a sincere and convincing manner On the other hand , I discredit certain crucial testimony of Joseph Antell set forth herein Accordingly , where the testimony of Orr conflicts with that of Antell , the testimony of Orr is credited In making this credibility resolution , I have considered the errors in Orr 's testimony with respect to dates and am persuaded that he was honestly mistaken as to when these events took place. 10 The foregoing is based on the credited testimony of Orr li The foregoing is based on a composite of the credited testimony of Orr and Rich- 22 Salesmen's pay depended in part on commissions which were based on sales 13 The foregoing is based on the credited testimony of Orr. '4Geneial Counsel's Exhibits Nos 2(c) and (d). 15 Bergman is manager of Respondent 's Peabody store There is no issue as to his status as an agent of Respondent, and I find that Respondent is responsible for his con- duct as set forth herein. 822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD also told Keel that with the Union in the store he was second from the bottom in seniority and that if he voted the Union out he would be much higher senioritywise.ia On May 25 Keel and Bergman had another conversation during which Bergman again told Keel that if he voted for the Union the vote would be five to five and would identify him as the tying vote.17 Keel said that he might not be the only one "that might vote against or for the Union." Bergman asked him who he thought were the ones who would vote for the Union. Bergman also told Keel that if he valued his job he would vote against the Union. Keel said that he would vote the right way and that ended the conversation.18 We turn now to the evidence offered by Respondent in support of its decision to terminate Orr. Matthew Antell testified that he was at the Board hearing on the decertification petition on April 16 when Orr was hired. He testified further that he did not know that Orr had been hired until the following Monday, April 20, when he saw Orr at work. Matthew Antell then talked with his brother Joseph and questioned the hiring of Orr on the ground that his employment overstaffed Respondent based upon sales. About 3 weeks prior to Orr's employment, an employee named Ross, who was then employed at the Peabody store, advised the Antells that he was going to terminate his employment in 3 weeks. On or about April 4 an individual named Jeffrey Stone was hired by Joseph Antell for the purpose of taking Ross' place. Stone was assigned to the Boston store for training purposes. Stone's home was near Pea- body and he was anxious to get to Peabody so Stone asked Joseph Antell after about 2 weeks of training if he could go to the Peabody store. Joseph Antell agreed to this and it was decided to bring Ross back to Boston for the "final week." Matthew Antell asked Joseph Antell why he hired Orr and Joseph Antell replied that he was hired to replace Stone. Matthew Antell testified that Joseph Antell did not realize at the time that Stone was an extra man on the selling floor and thought that with Stone leaving the Boston store and Ross leaving Respondent's employ after a week he would need another salesman When Orr applied for a job, he impressed Joseph Antell with his appearance and ability so Joseph Antell hired him.19 Matthew Antell testified further that Joseph Antell asked about Orr's managerial ability during this conversation. Matthew Antell testified also that when he found out about Orr's employment on Monday he reminded Joseph Antell that Stone was just a trainee, that this would make 11 men on the floor, and that they did not need 11 men. Mat- thew Antell testified further that the normal employment level was 10 salesmen at the Boston store and that 11 men made the payroll too high. Joseph Antell then told Matthew that since he had just hired Orr he wanted to let Orr work a week and they could let him go on Saturday. Matthew Antell testified that Orr was then discharged on Saturday. On Saturday Matthew Antell told Orr that he was being discharged not because he was not capable but because Respondent was overstaffed. Matthew Antell said that if business did not increase the salaries of other salesmen would decrease due to the percentage arrangement under which employees were paid Matthew Antell further testified that Respondent tried to maintain a payroll ratio of 10.5 percent meaning that salaries should not exceed 10.5 percent of sales. Pay- roll ratio is figured by dividing salaries by sales. For the quarter just prior to Orr's employment the payroll ratio was 11.9 percent. With the addition of Orr, 1 percent would be added so the ratio would go to 12.9 percent. Further Matthew Antell denied that Orr was discharged because of his union activity. Matthew Antell also 18 The General Counsel did not offer this testimony as evidence of an Independent viola- tion of Section 8(a) (1) but as background for the second conversation between Keel and Bergman. 17 It is not without significance to note from the Supplemental Decision of the Regional Director (General Counsel's Exhibit No. 2(d)) that the vote in the election of May 27 was five for and five against the Union. Bergman's appraisal of the situation appears to have been correct. 18 The foregoing is based on the credited testimony of Keel Bergman denied having the first conversation with Keel at least "not exactly" as his attorney described the conversation In his question Bergman stated that the only conversations he ever had with Keel or anyone else were about shoes "outside of possible curiosity of what was going on with the forthcoming election." Bergman flatly denied having any conversa- tion of the sort related by Keel as having occurred on May 25. Yet this conversation was similar to the first conversation to which Bergman gave an equivocal denial Keel, who is still employed by Respondent, impressed me as a sincere and candid witness who was being very careful in his testimony to give truthful answers I was not similarly im- pressed with Bergman's denials. Accordingly, I have credited Keel 19 Joseph Antell testified that he heard Matthew Antell's testimony about their con- versation on Monday and that it was correct JOSEPH ANTELL, INC. 823 testified that he never talked with Orr about the Union and denied that Bergman reported to him any conversation about union matters with employees. Matthew Antell also testified that Respondent sent no letters or bulletins to employees before the election and did not only orally urge employees to vote against the Union. In addition to the testimony of Joseph Antell previously referred to, Joseph Antell also testified that when he talked with Matthew Antell on April 20 he said that with Stone going to Peabody they would be short of men. Matthew Antell then said that they would not be short of men because Stone was hired to go to Peabody . Joseph Antell testified that he had forgotten that and thought that with Stone leaving they would be one man short so he hired Orr. On cross -examination , however, Joseph Antell testified that he definitely recalled telling Stone at the time he hired him that Stone would be going to the Peabody store. Joseph Antell admitted on cross-exami- nation that he was aware that 10.5 percent was the desirable payroll ratio. Joseph Antell, however, stated that he was not a "figure man." Joseph Antell testified that no additional salesman had been hired since Orr's employment . Joseph Antell denied receiving any reports from Bergman about union activities or that he had any knowl- edge of any conversations Bergman may have had with salesmen about union matters. Joseph Antell also denied that he had any knowledge that Orr was in any union activity and testified that he was discharged because Respondent had one too many salesmen . Joseph Antell also testified that he did not care whether the Union stayed in the store or not. On May 27 the election was held. Orr's name was not on the eligibility list and he did not appear at the voting place. Nor was Orr's name on the eligibility list for the second election which was held on August 24 . However he did appear at the voting place and voted a challenged ballot.20 B. Analysis and conclusions From the foregoing facts it is clear that this case presents a situation where an employee , who was considered by the president of the Company to be highly quali- fied, started work on Monday, spoke out for the Union on Thursday , and was fired on Saturday. Furthermore the employee received absolutely no warning of impend- ing discharge until Saturday . Rather he was told by Company Official Matthew Antell on Wednesday or Thursday to feel free to order whatever merchandise he wanted from the catalogue and Matthew Antell would see that he got it. Yet Matthew Antell testified that it was decided on Monday to fire Orr the next Saturday. In its brief, Respondent contends that there is no evidence that it knew of Orr's union activities or that it was opposed to the Union . Respondent's interest and knowl- edge of the union activities of its employees is shown by Joseph Antell's statement in the employment interview with Orr on April 16 about the employees taking a vote and their decision that they did not want union representation any more. Respond- ent's opposition to the Union is shown by Joseph Antell's statements to Orr on April 16 pointing out how much better off the employees would be without a union. Respondent's continuing opposition to the union activities of its employees is shown by the efforts of Manager Bergman to find out which employees were going to vote for the Union and his threat of discharge to Keel if he voted for the Union . Respond- ent's continuing interest and knowledge of its employees ' union activities is shown by Bergman's statement to Keel that the employees were divided six against and four for the Union , and that if he voted for the Union it would be five to five . The accu- racy of this estimate is shown by the actual vote in the May 27 election of five to five. It is clear from what Joseph Antell told Orr on April 16 that Joseph Antell hired Orr for the Boston store intending to transfer another Boston store employee to the Wellesley store and keep Orr in the Boston store since Orr stated that he could not work in the Wellesley store. It is also clear that Orr informed Joseph Antell when he was interviewed that he did not care for the Union . Why then did Respondent discharge Orr a few short days after he started work. Was it for the reason stated by both Matthew and Joseph Antell that Joseph Antell forgot that Stone was an extra employee and hired Orr to replace Stone who was leaving the Boston store thereby overstaffing this store To accept this explanation is to believe that Joseph Antell who personally hired Stone less than 2 weeks before to replace Ross at the Peabody store had forgotten that fact . In addition , if Joseph Antell thought that Stone was a regular employee he must have known that Stone should not be replaced since his departure would bring the employee complement down to 10 which was, as Joseph Antell testified , the normal complement. 2° The findings in this paragraph are based on a stipulation of the parties. 824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I do not believe that Joseph Antell not only forgot that he had hired Stone for the Peabody store, but also forgot that the normal complement of the Boston store was 10 employees. Under all the circumstances, I cannot accept the explanation for Orr's discharge advanced by Matthew and Joseph Antell and reject it as clearly pre- textual. In these circumstances, I cannot attach the significance Respondent desires to the absence of evidence that Respondent campaigned against the Union prior to the election or to its long history of a good contractual relationship with the Union. In view of the small number of employees in the store, and all the foregoing circum- stances, I believe and find that the explanation for this discharge is that Joseph Antell hired Orr thinking that he was opposed to the Union, found out later that Orr had spoken strongly in favor of the Union, and knowing how closely divided his employ- ees were regarding the Union and that an election was probably imminent, and being desirous of getting rid of the Union, decided to discharge Orr. Accordingly, I find that Respondent by discharging Orr because of his union activities did thereby dis- criminate against an employee in order to discourage his union activities in violation of Section 8(a) (3) and (1) of the Act. I further find that Respondent violated Sec- tion 8(a)(1) of the Act by Bergman's interrogation of Keel as to which employees would vote for the Union, and by his threat to discharge Keel if he voted for the Union. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connec- tion with the operations of Respondent, described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) and (3) of the Act, I will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act Having found that the Respondent discriminatorily discharged Dean Orr, I recom- mend that he be offered reinstatement and made whole for any loss of pay resulting from his discharge to the date on which he is offered reinstatement, less his net earn- ings during that period. Such backpay shall be computed on a quarterly basis in the manner prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289, and shall include interest at 6 percent per annum as provided by the Board in Isis Plumb- ing & Heating Co., 138 NLRB 716. In view of the nature of the unfair labor practices committed, the commission of similar and other unfair labor practices reasonably may be anticipated. I shall, therefore, recommend that Respondent be ordered to cease and desist from in any other manner infringing upon rights guaranteed to its employees by Section 7 of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record, I make the following: CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Retail Shoe Council of New England, New England Joint Board, Retail Whole- sale Department Store Union, AFL-CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 3. By discouraging membership in a labor organization through discrimination in employment, and by interfering with, restraining, and coercing employees in the exercise of their rights under the Act, Respondent has engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Section 8(a) (3) and (1) and Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I recommend that Respondent, Joseph Antell, Inc.. its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating its employees as to which employees would vote for the Union in Board elections, and threatening its employees with discharge if they vote for the Union. JOSEPH ANTELL, INC. 825 (b) Discouraging membership in and activities on behalf of-Retail Shoe Council of New England, New England Joint Board, Retail Wholesale Department Store Union, AFL-CIO, or any other labor organization of its employees, by discharging any employee or in any other manner discriminating in regard to hire or tenure of employment, or any term or condition of employment. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the poli- cies of the Act. (a) Offer to Dean Orr immediate and full reinstatement to his former or sub- stantially equivalent position without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay he may have suffered as a result of the discrimination against him, in the manner set forth in the section of this Decision entitled "The Remedy." (b) Notify Dean Orr if he is serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. (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 records necessary to ascertain any backpay due under the terms of this Recommended Order. (d) Post in the Joseph Antell, Inc., store at Boston, Massachusetts, copies of the attached notice marked "Appendix." 21 Copies of said notice, to be furnished by the Regional Director for Region 1, shall, after being duly signed by a representative of Respondent, be posted by Respondent immediately upon receipt thereof and be main- tained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 1, in writing, within 20 days from the date of receipt of this Decision, what steps Respondent has taken to comply therewith.22 "In the event that this Recommended Order be adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board's Order be en- forced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order " "'In the event that this Recommended Order be adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify our employees that: WE WILL NOT interrogate our employees as to which employees would vote for the Union in Board elections, or threaten our employees with discharge if they vote for the Union. WE WILL NOT discourage membership in or activities on behalf of Retail Shoe Council of New England, New England Joint Board, Retail Wholesale Department Store Union, AFL-CIO, or any other labor organization, by dis- charging any of our employees or in any other manner discriminating against our employees in regard to their hire or tenure of employment or any term or condition of employment , except to the extent permitted by the proviso to Sec- tion 8 ( a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL NOT in any other manner interfere with, restrain , or coerce our employees in the exercise of their rights under Section 7 of the Act. 826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL offer to Dean Orr immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority and other rights and privileges, and make him whole for any loss of pay suffered as a result of the discrimination against him. All our employees are free to become and remain, or to refrain from becoming or remaining, members of the above -named Union or any other union , except to the extent that this right may be affected by an agreement in conformity with Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. JOSEPH ANTELL, INC., Employer. Dated------------------- By------------------------------------------- (Representative ) (Title) NOTE.-We will notify the above-named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement upon applica- tion in accordance with the Selective Service Act and the Universal Military Train- ing and Service Act of 1948 , as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, Boston Five Cents Savings Bank Building, 24 School Street, Boston, Massachusetts, Tele- phone No. 523-8100, if they have any question concerning this notice or compliance with its provisions. Marbro Food Service, Inc., d/b/a Fab's Famous Foods Company and International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local No . 537. Case No. 27-CA-166. May 25,1965 DECISION AND ORDER On March 11, 1965, Trial Examiner Herman Marx issued his Deci- sion in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion. With respect to certain other unfair labor practice allegations, the Trial Examiner recommended they be dismissed. Thereafter, counsel for the General Counsel and the Respondent filed exceptions to the Trial Examiner's Decision and supporting briefs. Pursuant to the provisions of Section 3(b) of the Act, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Members Fanning, Brown, and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in this case, and adopts the findings, conclusions, and recommendations of the Trial Examiner. 152 NLRB No. 97.