Food Fair, Inc.

222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD J. M. Fields Inc., of Florida and the Ideal Shoe Co., wholly owned subsidiaries of Food Fair, Inc. and Retail Store Employees Union, Local 345, AFL-CIO Retail Clerks International Association. Cases 3-CA-3746-2 and 3-CA-3847 August 27, 1970 DECISION AND ORDER BY MEMBERS FANNING, MCCULLOCH, AND JENKINS On May 5, 1970, Trial Examiner Marion C. Ladwig issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices and recom- mending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed 'exceptions to the Decision and a supporting brief limited to the Trial Examiner's finding a violation of Section 8(a)(3) of the Act with respect to the discharge of Filomena Marianetti. The General Coun- sel filed exceptions and a supporting brief to the Trial Examiner's failure to find that Respondent vio- lated Section 8(a)(1) of the Act by creating an impres- sion of surveillance of its employees' union activities. 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. 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 here- by 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 findings, conclusions, and recommendations of the Trial Examiner, with the addition noted in the margin.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- ' The Trial Examiner found that Respondent coercively interrogated employee Causyn by stating to him that Respondent knew he was passing out union cards and asking how many others were doing so, and also by asking employee Marianetti to report any union activity to Respondent The General Counsel excepts to the Trial Examiner's failure to find that these interrogations also tended to create an impression of surveillance We find merit in this exception, and accordingly find Respondent's aforesaid conduct also violative of Sec 8(a)(1) for that additional reason See Plasticard Company, 168 NLRB No 26, fn 3, Sackett Transportation, etc, 169 NLRB No 57 tions Board adopts as its Order the Recommended Order of the Trial Examiner, as modified below, and hereby orders that Respondent, J. M. Fields, Inc., of Florida and the Ideal Shoe Co., wholly owned subsidiaries of Food Fair, Inc., Gates, New York, their officers, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as so modified: 1. Under paragraph 1 of the Order, change subpara- graph (f) to (g) and subparagraph (g) to (h), and substitute as (f) the phrase "creating an impression of surveillance of the union activities of employees." 2. Insert as the next to the last paragraph of the notice: "We will not create an impression of surveillance of the union activities of our employees. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE MARION C. LADWIG , Trial Examiner: These consolidated cases were tried at Rochester, New York, on October 21-22, 1969,' and on January 6-7, 1970, pursuant to charges filed by Retail Store Employees Union , Local 345, AFL- CIO, Retail Clerks International Association , herein called the Union, on April 3 (amended July 16) and on August 4, and pursuant to a consolidated complaint issued on September 24 (and amended at the trial ). The primary issues are whether the Respondents , J. M. Fields Inc., of Florida and the Ideal Shoe Co., wholly owned subsidiaries of Food Fair, Inc., herein called the Company (or Fields and Ideal when referred to separately) (a) restrained and coerced employees during the Union's organizing drive by unlawful interrogation, warnings, threats, and other conduct, (b) discriminatorily discharged three union sup- porters, and (c) unlawfully discharged a supervisor to give a color of validity to one of the alleged discriminatory discharges, in violation of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended. Upon the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel and the Company, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY AND THE UNION INVOLVED Fields and Ideal are wholly owned subsidiaries of Food Fairs, Inc. Fields, a Florida corporation, maintains its princi- pal office in New York City; operates an interstate chain of discount retail stores, including the Gates, New York, store involved in this proceeding; annually sells and distrib- utes goods and products valued in excess of $1 million; and annually receives at its stores goods and products valued in excess of $50,000 directly from other States. ' All dates, unless otherwise indicated, are in 1969 185 NLRB No. 73 J M FIELDS INC, OF FLORIDA Ideal, a Pennsylvania corporation, maintains its principal office in Philadelphia; manufactures, sells, and distributes shoes and related products; operates (as a joint employer with Fields) a retail shoe outlet in the Fields' Gates, New York, store; annually manufactures, sells, and distributes products valued in excess of $1 million, and annually ships products valued in excess of $50,000 from outside the State of New York directly into that State. Fields and Ideal admit, and I find, that they are engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that the Union is a labor organization within the meaning of Section 2(5) of the Act iI THE ALLEGED UNFAIR LABOR PRACTICES A. Background On March 19, a group of Gates store employees quit working and went to the front of the store, planning to go on strike over working conditions. Department Manager Filomena Mananetti (later discharged on July 7) was in the group. After some discussion, the employees decided to call the Union instead of striking, and returned to work. The next day, March 20, Department Manager Wil- liam Essig (discharged March 29) and Department Manager John Causyn (who quit in May) met with union representa- tives, and returned to the store with authorization cards, which they and Department Manager Marianetti thereafter solicited employees to sign. (The Company admitted at the trial that these department manager were employees, and not supervisors as defined in the Act The complaint alleges that the discharges of Department Managers Essig and Mananetti, and two other persons, were discriminatorily motivated.) On March 19 or 20, the union activity was reported to Fields Vice President of Industrial Relations Jerome Walker, who assumed personal charge of the Company's efforts to keep out the Union. (The Company had successful- ly opposed each previous organizational drive in its multi- state chain of about 60 nonunion discount retail stores ) After giving preliminary instructions over the telephone, and directing that no employee would be discharged without his personal sanction, Walker went to the Gates store on March 21 and joined with store, district, and regional management in the campaign (discussed hereafter) to dis- suade the department managers, as "supervisors," from supporting the union activities, and in otherwise countering the organizational efforts. A vigorous election campaign followed, and on July 3, the employees voted 82 to 25 against union representation. The complaint alleges that the Company unlawfully inter- fered with the employees' organizational rights by interrogat- ing, warning, and threatening the department managers, and by other conduct. B. Alleged 8(a)(1) Violations I Involving department managers a. Interrogation 223 On March 20, the day before Vice President Walker arrived at the Gates store, Fields District Manager Donald Bleecker went to Department Manager Marianetti's depart- ment. According to Marianetti's credited and undisputed testimony, Bleecker said he had heard a union was trying to get in the store and asked her "if I knew anything about it, and at the time I told him that I didn't." (This conversation occurred the same morning that Department Managers Essig and Causyn met with the union representa- tives. Union cards were brought to the store at noon that day.) Bleecker "told me to listen and see if I could find out what was going on and I told him I would." That afternoon, Bleecker returned to Marianetti's depart- ment and asked her, "Did you hear anything about union activity?" She answered yes, and he "asked me who was involved and if cards were being passed out, who was collecting cards and I said I didn't know who was collecting the cards." I find that this interrogation of the admittedly nonsupervisory employee was coercive, and vio- lated Section 8(a)(1) of the Act. At noon on March 20, an hour before he was scheduled to report to work, Department Manager John Causyn arrived at the store from the union meeting and began passing out union authorization cards in the lunchroom. That afternoon, as credibly testified by Causyn (who impressed me as an honest witness), District Manager Bleecker talked to him in Security Supervisor Herbert Court- wright's office, telling him that someone had reported that he was passing out union cards in the store. Causyn denied it. Later that day, Causyn was called into Store Manager Andrew Psilopoulos' office where Bleecker stated, "We know you're definitely passing out union cards," and that "as of now you are fired." However, Bleecker then motioned to Psilopoulos to take Causyn into the next office, and Causyn overheard Bleecker placing a call to Vice President Walker. In the next office, Psilopoulos interrogated Causyn about "why I was doing it." Then (in Causyn's words), "Mr. Bleecker called us back to Mr. Psilopoulos' office and told him that he couldn't fire me and he said that he wanted to know how many cards I had and I told him about twenty... He asked me if there was anybody else soliciting from the Union and I told him I Sh'dn't know." Causyn was then sent back to work, after being cautioned about the Company's no-solicitation rule (which lawfully prohibited solicitation "during working time" if it "interferes with work or normal store procedures and operations") The next day, March 21, Psilopoulos sent the store employees a letter which began: Mr. Causyn, Department Manager of Health and Beauty Aids, has advised me that he has obtained the signatures of a few people on cards authorizing a union. I felt that several points should be made clear to all of you. First, Mr. Causyn is a supervisor-a part of manage- ment of the store. In his position he has no legal 224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD right to be getting signatures for a union. THIS IS A VIOLATION OF THE LAW. We did not give him permission to do this. (The letter also stated that anyone who had signed a card "HAS A LEGAL RIGHT TO DEMAND THAT IT BE GIVEN BACK. If you are one of the few who signed and you have second thoughts , you can demand that the card be returned to you.") Bleecker was not called as a witness. Psilopoulos did not specifically deny the interrogation, nor that Bleecker first told Causyn that he was discharged, and he did not detail what transpired when Causyn was called to the office. He testified that he and Bleecker telephoned Walker before the interview, and Walker "advised us to speak to Mr. Causyn and advise him of our solicitation policy." However the March 21 company letter, which nowhere mentioned the no-solicita- tion rule, tends to corroborate Causyn's version by showing that the Company's major concern was with having this department manager , as a so-called supervisor, not soliciting at all for the Union. Moreover, Causyn impressed me as the more trustworthy witness, and I credit his version of what happened. I find that Psilopoulos' and Bleecker's interrogation of Causyn concerning his union sympathy, the number of cards he had, and whether anybody else was soliciting for the Union violated Section 8(a)(1) of the Act as alleged in the complaint. I further find that this interrogation of the admittedly nonsupervisory employee was particularly coercive, in view of the facts that it occurred after he was told he was discharged, and that the following day he was singled out in the company letter and accused of violating the law by getting signatures for the Union. b. Warnings and Threats On March 21, the day after Department Managers Causyn and Marianetti were interrogated, Vice President Walker held a meeting with the department managers in the store. As credibly testified by Causyn, Walker informed the depart- ment managers that "it was against the Taft-Hartley Law" for them to solicit for the Union. Confirming that this was said, Store Manager Psilopoulos testified that Walker told the department managers that "they were an arm of management and explained the Taft-Hartley Law . . . That management . . could not solicit " Department Manager Essig credibly testified that Walker stated that the department managers, being supervisors, could not take part in the Union, and that he was explaining this "because he felt that we could get in trouble " Although Walker denied telling the department managers they were supervisors and were not permitted to solicit union cards as it was a violation of the Taft-Hartley Act, he admitted-after being shown his pretrial affidavit-that he told them that supervisors were not permitted to solicit union cards. At one point, he testified that he told the department managers that he had heard "one of the principal solicitors of cards [Department Manager Causyn] was a supervisor in the store." As previously indicated, it was on thissame, day, March 21, that Psilopoulos informed the store employees by letter that it was a violation of the law for Causyn, as a "supervisor," to get signatures for a union Similarly, Department Manager Essig credibly testified that sometime the following week (about March 25, 4 days before his discharge on Saturday, March 29), Fields Regional Personnel Director Richard Bengraff, in the pres- ence of Psilopoulos and District Manager Bleecker in Psilo- poulos' office, told him that he could not join the Union, and could not solicit for the Union "because of the Taft- Hartley Law which states that supervisors could not solicit for or against the union," to which Essig responded that he did not consider himself a supervisor. (Bengraff, who did not directly deny talking to Essig about his being a supervisor, testified that Essig stated "he was not saying he was soliciting but if he had been soliciting he would continue." Psilopoulos appeared to be fabricating what hap- pened when he testified, "We discussed with Mr. Essig the solicitation of union cards on company time and told him that we had a no-solicitation rule and that we wished him to stop He . told us . he had every right to, if he wished to. I interpreted this to mean that he would not stop. However, we did explain to him that we had a no-solicitation policy and we did wish him to stop." Whether anything was said in this particular conference about soliciting on company time, as claimed by Bengraff and Psilopoulos but denied by Essig, I credit Essig's testimo- ny that Bengraff told him in the presence of Psilopoulos and Bleecker that he could not solicit for the Union because of the Taft-Hartley Act.) On Friday, March 28, District Manager Bleecker and Store Manager Psilopoulos approached Department Manag- er Marianetti and asked her about the company she had the night before. (Marianetti testified that on that Thursday evening, James Columbo, a representative of the Union, had visited her in her home "and the following morning when I went to work I mentioned to a few employees that I had signed a card and apparently one of them told Mr. Psilopoulos.") She told them she had signed a union card. Psilopoulos "said I couldn't belong to the Union because I was a department manager." Marianetti stated, "I've known Jim Columbo for a long time and he explained to me that I could belong to the Union because I couldn't hire or fire." She added, "Jim Columbo wouldn't lie to me If he says I could belong to it then I could " (Psilopoulos did not deny this conversation. Bleecker, who no longer works for Fields, did not testify.) Accordingly, I find, as alleged in the complaint, that the Company advised and warned employees (department managers) that they could not join or engage in activities on behalf of the Union, in violation of Section 8(a)(1) of the Act. Concerning the further allegation that the Company threatened employees with discharge if they gave any assist- ance or support to the Union, Department Manager Causyn credibly testified that following Vice President Walker's March 21 meeting with the department managers, Causyn went to the store manager's office and "I told Mr. Psilopou- los I was sorry it all started . . So [Assistant Store Manager] Borssuk said, `Why don't you go up and clear yourself with Mr. Walker ' " Causyn then met with Walker, explained why he was organizing for the Union, and Walker said (in Causyn's words), "I could have been dismissed for soliciting because it was against the Taft-Hartley Law " J M FIELDS INC, OF FLORIDA Causyn stated that the way he understood it, he could not have been fired for it. Walker responded, "I'll fire your out of here in three seconds as proof to you." They continued to talk, and Walker did not discharge him (As previously indicated, Causyn thereafter quit) Walker did not deny using these words, or threatening to discharge Causyn, but he claimed that Causyn admitted soliciting union cards on company time Causyn appeared to be the more trustworthy witness, and I credit his version of what happened. Accordingly, I find that the Company threatened an employee with discharge if he solicited for the Union, thereby violating Section 8(a)(1) of the Act. Although admitting in its brief "that in the very early stages of the organizing campaign the Company proceeded on the assumption that the Department Managers were `supervisors' within the meaning of the Act and on that basis sought to discourage them from participating in the solicitation of cards," the Company contends that "this situation was speedily corrected and at an early date, the Department Managers and all other employees were clearly advised by Walker and others as to their rights under the Act." I reject this contention as unsupported by the evidence However, even if the Company did in some way at some undisclosed time advise the employees of the depart- ment managers' organizational rights, the Company indi- cates no justification for its wrongful "assumption" that nonsupervisory department managers were supervisors, and its discouragement of their union activity at a time when they were taking a leading role in the organizational drive Moreover, the coercive effect of the unlawful interrogation, warnings, and threats was compounded when the Company incorrectly advised all the employees in writing that a department manager "has no legal right to be getting signa- tures for a union," and emphasized that "THIS IS A VIOLATION OF THE LAW"-thereby wrongfully label- ing lawful organizational efforts as a violation of the law in the same letter in which the Company was emphasizing that any card signer had a "LEGAL RIGHT" to demand his card back. I also note, as discussed hereafter, the Company permitted an antiunion department manager to violate the no-solicitation rule the following week by asking employees during their working time if they wanted their union cards back, and that on March 27, Store Manager Psilopoulos wrote the employees another antiunion letter in which he stated, "The fact is that nearly all of the people who signed cards last week have asked to get them back." I find that even if the Company's unsupported contention were true, the asserted belated advice to the employees would not in these circumstances remedy the above-found Section 8(a)(1) violations. 2. Other alleged interference The General Counsel failed to prove that the Company created the impression of engaging in surveillance of the employees' union activities, and that Store Manager Psilo- poulos' meetings with small groups of employees were coercive. The alleged discriminatory issuance of a warning slip to employee Joseph Libertore is discussed next. C. Discharge of Employees and Supervisor 1. Discriminatory motivation revealed 225 On Saturday morning, March 29, Ideal District Manager Neal Delaney (the supervisor later discharged by Fields District Manager Bleecker), went to the Gates store to visit Ideal's shoe department there. While in the store, he went to the office and had a conversation with Store Manager Psilopoulos about the union activity As Delaney credibly testified, Psilopoulos "made the remark that it was only a matter of time until the people who were prounion in the store would be out. " Then Psilopoulos stated that employee Joseph Libertore, in the shoe department, had been "shooting off his mouth" about the Union, and Psilo- poulos instructed Delaney to "start laying the groundwork for getting rid of Mr. Libertore " (Psilopoulos testified "I really don't recall" saying much more to Delaney in the discussion than there appeared to be union activity in the store, and "I don't believe" the names of individual employees were discussed. He denied giving Delaney any instruction concerning what to do concerning individual employees Upon closely observing Psilopoulos' demeanor on the stand, while giving this testimony and the testimony concerning the later discharges, I concluded that he was not doing his best to be a candid witness. Delaney impressed me as an honest, forthwright witness, and I credit his version of what transpired Emphasis supplied ) Later that morning, Delaney gave employee Libertore a formal warning in writing for habitual tardiness When asked on cross-examination about the nature of the problem that led to Libertore's warning, Delaney credibly testified that Libertore was habitually late to work (arriving late and working late), but that "Probably if Mr Libertore had not been involved in the conversation regarding the Union his tardiness would have been tolerated indefinitely " Although there is no evidence that any employee overheard, or was aware of, Psilopoulos' instructions to lay the ground- work to get rid of Libertore for talking about the Union, the Company had permitted Libertore to work the staggered hours for months, until his union talk began. I therefore find that, because of the timing of the discriminatonly motivated warning, it tended to interfere with the employees' exercise of their Section 7 right to support the Union, and that the Company violated Section 8(a)(1) by issuing it. I have considered the Company's discriminatory motiva- tion for issuing this written warning, and also Store Manager Psilopoulos' remark about there being only a matter of time until the prounion employees in the store would be out, in determining the Company's motivation for discharg- ing Essig later that day, and for discharging Mananetti and Armon shortly after the election. The Company admits in its brief that "there is no question concerning the fact that the Company had full and complete knowledge concern- ing the union sympathies and activities of the three dis- charged employees, to wit: Essig, Marianetti, and Armon." 226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Discharge of William Essig and that he usually did this without prior approval, filling out the markdown papers later. When placed in charge of the sporting goods department in November 1967, he was. instructed not to miss a sale if the merchandise was .damaged. He had never been warned or reprimanded about the way he handled markdowns On this occasion, his assistant was at lunch and he had not had time to fill out the markdown papers. There was apparently no problem in his department of an inventory shortage caused by failing to record markdowns, inasmuch as there was an inventory overage. Psilopoulos , who had been transferred to the Gates store as store manager on March 3, testified, "I do not know what the situation was on markdowns prior to my arrival," and that he was not aware of any previous markdown violation by Essig, who he testified had an inventory overage. He testified that he had a policy of taking corrective meas- ures before discharge: "However, it was dust a week or so prior to the incident that we had a department manager's meeting at which I did explain the markdown policies." The credible evidence shows that markdowns had been discusssd in one of the routine meetings , but that nothing was said about obtaining prior approval for markdowns on individual soiled or damaged items. Instead , Psilopoulos had described the procedure for making markdowns on multiple items, such as ad merchandise : telling them (as Psilopoulos himself testified) that the merchandise must be listed on the markdown form, approved in writing by the store manager, taken to the stockroom and reticketed, and returned to the floor at the markdown price. Psilopoulos' conduct at the time of the discharge demon- strated that he was not concerned with having the markdown procedure (including the stockroom reticketing ) applied to the sale of a display item such as Essig sold Delaney. It is evident that he made no investigation, and took no action against the front supervisor who approved the mark- down on the bicycle bearing Essig's handwritten price tag, because Psilopoulos was not even aware at the trial that the employee purchase record showed only a $4 markdown (from $24.97 to $20.97), with the 5 percent employee dis- count accounting for the other $1. When asked at the trial what he knew of the incident which led to Essig's discharge, Psilopoulos testified, "Essig put a price of $19.95 on the bike and Mr. Delaney took the bike and went to our employee register and received an additional 5% at the $19.95 price." (Emphasis supplied.) Thus, Psilopoulos summarily discharged Essig, the first person he discharged at the Gates store for such a violation, without investigating why a written approval was given at the employee register for a markdown on an item not bearing an official stockroom ticket Moreover, when asked what procedure Essig should have followed, Psilopoulos made it clear that he had not intended for the procedure outlined to the department managers (including the requirement that the merchandise be reticket- ed in the stockroom) to be applied to the sale of a display item He testified that Essig, after recording the markdown and getting it approved , then "should have reticketed the bike in question and then sold it at the markdown price " (Later, as an apparent afterthought, Psilopoulos testified that he told the department managers that all markdowns Sporting Goods Department Manager Essig (discharged on March 29) was one of the employees who met with the union representatives on March 20, brought union cards to the store at noon that day, and ' began passing them out. Although admittedly a nonsupervisory employee, the Company attempted to stop his union solicitations, Vice President Walker telling him in a group meeting on March 21 , and Personnel Director Bengraff telling him personally about March 25 (in the presence of District Manager Bleecker and Store Manager Psilopoulos), that he could not as a supervisor solicit for the Union Thereafter, Psilopoulos talked to him in the office about violating the no-solicitation rule. Psilopoulos restricted him to the sporting goods department, except for lunch and breaks, and assigned Security Supervisor Courtwright to watch him "to see he stayed in his area and did not solicit on company time," and to learn what caused Essig to have an overage in his department inventory. Essig's actions were still being observed by Courtwright on Saturday morning, March 29 , when Store Manager Psilopoulos was talking in the office to Ideal District Manag- er Delaney about "laying the groundwork for getting nd" of a prounion shoe department employee, and about it being "only a matter of time" until the prounion people in the store "would be out." Sometime that morning, a customer asked for a particular bicycle with trainer wheels. There was one on display, but it was shopworn , having been on the floor for about 2 months. Courtwright went to the stockroom with Essig to look for another, but found only one which was damaged . The customer refused to buy the bicycle. Around lunchtime, Ideal District Manager Delaney went to the sporting goods department and asked for the same model bicycle. In the presence of Courtwright, Essig offered to sell the display bicycle (which cost$18.25) at the "sale price" of $19.97 ($5 off the $24.97 regular price), telling Delaney it was the only one in stock . Delaney said he would take it. Essig wrote out a tag for the reduced price, and told Delaney to take it through the employees' cash register Delaney did, and the transaction was shown on the employee purchase record as a gross sale of $20.97, employee discount of $1, and a net sale of $19.97. Delaney then signed the record, and the person acting as front supervisor added her signature in the column for "authorized approval." Without saying anything to Essig or Delaney, Security Supervisor Courtwnght went to the office and reported the markdown to Store Manager Psilopoulos and District Manager Bleecker . Psilopoulos immediately telephoned Vice President Walker, and received authorization to discharge Essig for taking an unauthorized markdown . About 15 minutes after the sale, Psilopoulos summoned Essig to the office and questioned him in Courtwright's presence. Psilopoulos asked whether Essig had sold a bicycle, what the retail price was, and what he sold it for. Essig explained that it was a display item. Psilopoulos told him, "You're discharged for violation of company policy " Essig credibly testified that he had customarily given a customer a markdown on shopworn display merchandise, J M FIELDS INC, OF FLORIDA require written authorization of management. Even if this disputed testimony were credited, it would not have placed Essig and other department managers on notice that prior authorization would be required for each individual mark- down, and that the management would no longer permit Essig's customary practice of making the sale of soiled display items and later filling out the markdown papers.) Despite Psilopoulos' assertion that Essig should have marked down the bicycle and sold it after receiving written authorization for the markdown, both Psilopoulos and Vice President Walker thereafter testified that point-of-sale mark- downs were forbidden. Psilopoulos testified, "I'm stating that to my knowledge we adhere to the company policy which states there is no point-of-sale markdown. . . . We would not give the authorization for the point-of- sale markdown for a customer." Vice President Walker testified that it is a company policy that "markdowns at the point-of-sale is prohibited " However, such a rule is not specifically mentioned in the company manual for supervisors, and Bernard Pincus, the store manager immedi- ately before Psilopoulos, testified that tloor samples are occasionally marked down, and "If a department manager is approached by a customer and wants a markdown on a display merchandise, the department manager is to get permission from one of the managers " When testifying that there was a companywide rule against point-of-sale markdowns, both Psilopoulos and Walker appeared to be giving fabrications, in an effort to strengthen the Company's case. It is not disputed that Essig violated the Company's rule against unauthorized markdowns, and it was stipulated that in a number of the other stores, employees have been discharged "for violation of markdown procedures." On the other hand, the credible evidence clearly shows that not only Essig but a number of other department managers in this store had been making point-of-sale mark- downs without prior authonzation-as Essig openly did on this occasion. The question here is not, as contended in the Company's brief, whether Essig violated the markdown policy, but whether Essig's violation of the rule requiring prior authori- zation for markdowns was the real reason for his discharge. The General Counsel argues that the assigned reason was a pretext, citing the Company's animus against union activity, company knowledge of Essig's union support, Essig's following of "established markdown practice" at this store, the "entire candidness" of the sale, this being the initial such discharge at this store, and "the undenied remarks made to employee Armon by Psilopoulos that Essig's discharge was related to the fact that he was passing out cards for the Union." The last alleged factor is based on the testimony by employee Pamela Armon (discharged July 8), who testified that after Essig's discharge, she told Store Manager Psilopoulos "that Bill Essig got a raw deal . that every department manager in the store should get fired for the same reason . . . I know of a customer that came in the store and the department manager marked $15 off an article." Psilopoulos commented that he "didn't know about it." When asked if Psilopoulos made any further comment about Essig, Armon answered, "He said that Bill was passing cards out 227 for the union, right?" Evidently Armon was not giving the entire conversation, and the context of the comment is not sufficiently clear I therefore do not rely on this purported comment as a basis for determining the Company's motivation In its brief, the Company argues- "In evaluating whether or not the Company discharged Mr. Essig on a pretext, it is worthwhile to consider whether or not the Company needed such a pretext in his case"-citing Essig's violation of the no-solicitation rule. However, credited testimony given by Essig shows a good reason for the Company not having discharged him for that reason The Company was permitting an antiunion department manager to violate the no-solicitation rule by asking employees during their working time if they wanted their union cards back. Essig testified (on direct and cross-examination) that during the week before his discharge on Saturday, March 29, he observed department manager Rose Rizzari with a list, going through the store and talking to employees during working hours, soliciting them to get their signed union cards back, and stating "it was perfectly legal to do so." (Later in the trial, Rizzan and other employees testified about Rizzari's antiunion activity, but this additional testi- mony was offered by the General Counsel only to challenge her credibility as a company witness on the markdown practice in the store.) The evidence further shows that on March 27 of that week, Store Manager Psilopoulos advised the employees that "nearly all of the people who signed cards last week have asked to get them back." (Psilopoulos did not inform the employees from whom he received the information.) The fact that the Company did, at the least, permit the antiunion solicitation on working time was established by Essig's credited and undisputed testimony that notice was given to Security Supervisor Courtwright, whom Psilopoulos had assigned to observe Essig to see that he did not engage in prounion solicitation on company time. Essig mentioned Rizzan's antiunion solici- tation to Courtwnght twice, stating "she couldn't do that," but both times, Courtwright "kind of ignored me." Court- wright was not called to testify Although the Company denied in its answer that Courtwnght was a supervisor, Vice President Walker testified that where the security man was not "under an embargo such as I imposed [against any employee being discharged during the organizing drive without Walker's personal sanction], the security would have the right to discharge anybody." Courtwnght, whom Walker called "the security man" and Essig call "the security guard," was present in Walker's separate meeting on March 21 with Regional Personnel Director Bengraff and the store supervisors He was likewise treated as part of manage- ment when he was used as a witness in various conferences with individual employees, pursuant to Walker's instructions in the March 21 supervisors' meeting, that "no employee was to be spoken with privately " I find that the evidence shows that Security Supervisor Courtwnght had been given the authority to discharge employees, and was therefore a supervisor as defined in the Act, and that he was acting as a part of management in the Company's antiunion campaign. Ignoring Essig's testimony that he had customarily given a customer a markdown on shopworn display merchandise, and that he usually did this without prior approval, the 228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Company further argues in its brief "It would almost appear from the circumstances of this case that Mr. Essig was deliberately going out of his way to court discharge since his actions in regard to the bicycle incident, in front of the security officer, are not explainable on any other basis " I do not agree. Rather than courting discharge, Essig was following his customary practice. (In this connec- tion, I note that Essig's testimony is undisputed, that he had sold without prior authorization a $5 damaged fishing box for $3 to the night security guard, Mr. Palermo.) Yet Psilopoulos summarily discharged Essig without any prior warning, without making any investigation of the store practice, and without considering the fact that the display bicycle (which had been rejected by another customer that morning) was still sold at a small profit Having considered all the evidence and circumstances, including Psilopoulos' discriminatory motivation expressed that same morning to Ideal District Manager Delaney, I find that the Company (Store Manager Psilopoulos and Vice President Walker) seized on the markdown rule viola- tion as a pretext for discharging this union supporter, and discharged Essig because of his union activities in violation of Section 8(a)(3) of the Act. 3. Discharge of Neal Delaney On April 1, Ideal District Manager Delaney (the supervi- sor who purchased the display bicycle from Essig on March 29) was discharged by Fields District Manager Bleecker. The General Counsel contends that Delaney's discharge violated Section 8(a)(1) of the Act because it was motivated by a desire "to give a color of validity" to the discriminatory discharge of employee Essig, citing J. B. Martin Co., 164 NLRB 460, enfd. 395 F.2d 690 (C.A. 4, 1968) The Company contends that "The record as a whole makes it clear that Delaney's discharge did not in any way relate to the union situation in the store." If credited, Delaney's testimony shows that there was such a relationship. Delaney testified that Bleecker told me that I was part of the management and I had made an error in judgment by not reporting this infraction, and I knew there was union activity and I shouldn't have gotten involved with Bill Essig. What he meant by involved I still don't know. His conversa- tion was that I had made an error in judgment by not reporting Mr. Essig to the store manager. This was a violation of the store policy and he said I was being discharged because of prior trouble with the Company. [Emphasis supplied ] Bleecker did not testify. Ideal Northern Regional Supervisor Frank Jaffe, Dela- ney's immediate supervisor, was present in this conference. Although he gave a similar account of what Bleecker said, he denied that there was any mention of the Union, and testified that Delaney "said he knew it was wrong and felt everyone was doing it and that in his mind that made it right . and with the security man standing there, the security man was condoning it too " Delaney, an extremely alert person, impressed me as an honest, trustworthy witness. I discredit Jaffe's denial, and credit Delaney's testimony that Bleecker mentioned the union activity in the store and made the statement about Delaney getting involved with Essig. Accordingly, I find that Essig's discriminatory discharge was involved in the decision to discharge Delaney and also find, as contended by the Gener- al Counsel, that "Delaney was a victim of the plan to get rid of Essig," and that the Company "had to discharge him in order to lend credibility to its position that Essig was discharged for a serious infraction of company policy." The company witnesses appeared less than candid when testifying about the decision to discharge Delaney. Ideal Executive Vice President Jack L. Weissman testified that on Monday morning, March 31, he spoke to District Manag- er Bleecker or Store Manager Psilopoulos, got the story about the Saturday markdown incident, concluded that it was a breach of security regulations, discussed it with Ideal Regional Supervisor Jaffe who was in his office at the time, and "told Mr. Jaffe to make arrangements to meet Mr Delaney and see that he was discharged." (Weiss- man offered no explanation for Bleecker, a Fields manager, discharging Delaney.) Jaffe had a different version (but still no explanation why Bleecker did the discharging) Jaffe testified that on Sunday evening, March 30, Weissman called, said "I was to discharge Mr Delaney," and that he already "had spoken to Fields' people and made his decision." The explanation for Bleecker's participation in the discharge comes from the testimony of Store Manager Psilopoulos. He testified that Bleecker was present in his office on Saturday, March 29, was aware at the time that Delaney was involved in the Essig incident, and "we in turn called Mr. Walker for his advice. Mr Bleecker terminated Mr. Delaney ..the following week." (Emphasis supplied.) Thus, Bleecker discharged Delaney after getting the "advice" of Fields Vice President Walker, who had assumed personal charge of the Company's efforts to keep out the Union. As already found, Walker gave his authoriza- tion over the telephone that Saturday for the discriminatory discharge of Essig. I further find that when talking with Bleecker about Delaney's involvement in the incident, Walk- er decided to have Delaney discharged, and that the above- noted conflicts between Weissman's and Jaffe's testimony resulted from their attempts to conceal this decision, which Weissman and the "Fields people" were discussing that weekend. As justification for the April 1 discharge of Delaney, the Company cites various reasons Ideal had for discharging him in December 1968, when it sent him to an industrial psychologist. Delaney was having marital troubles, was heavily in debt, and had run up a high rental car bill while accepting a car allowance. His bad credit rating prevented him from buying a new car, and he owed Ideal over $2,000 (for an unpaid loan and the unauthorized car rentals). However, Ideal had not discharged him. After the psychologist found him to be "an extremely bright young man," Ideal in December purchased him a new car to drive, in February increased the number of stores (shoe department) under his jurisdiction from five to eight, and gave him a $1,000 a year salary increase, and on March 19 gave him an additional $303 loan for his lawyer in his bankruptcy matter. Delaney had previously worked for a shoe company for over 6 years, and had been serving as assistant operations J M. FIELDS INC, OF FLORIDA 229 manager when he left that employment . Ideal Executive Vice President Weissman described his work as "very satis- factory" and "generally good." His only written reprimand about his work was an intercompany memo written to him by Fields District Manager Bleecker on March 6, for not keeping Bleecker's office advised of his weekly itinerary . However, Weissman and Regional Supervisor Jaffe gave the dubious testimony that Weissman orally gave Delaney a final warning in February (when his jurisdiction and salary were increased), and Weissman testified that the markdown incident was the "straw that broke the camel's back." Weissman conceded that "None of my people had ever been fired for receiving anything but authorized markdowns prior to Mr. Delaney." In its brief, the Company also argues that Delaney 's acceptance of the $5 markdown had ramifications that went far beyond the $5 because he was responsible for thousands of dollars of markdowns, and "He was aware, or should have been aware, of the Company's policy in regard to unauthorized markdowns and the Company could hardly condone his actions in this situation and still expect him to be responsible for following markdown procedures for his own department." The Company offered no evidence of any problem of unau- thorized markdowns in the shoe departments , and offered no explanation how Delaney would be involved in such markdowns (which evidently would be under the control of the store security and supervision .) I find that these arguments are mere afterthoughts, and that the real reason for Delaney's discharge was the Company's attempt to conceal its discriminatory motivation for discharging Essig. Accordingly, I find that as alleged in the complaint, the Company discharged Delaney to give a color of validity to the discharge of employee Essig, and thereby interfered with the employees' organizational rights in violation of Section 8(a)(1) of the Act. 4 Discharge of Filomena Mananetti In its brief, the Company admits knowledge that Mrs. Marianetti was "one of the employees in the forefront of organizing activity at the store." She was department manager over the infant and girls department , and was the highest paid department manager Vice President Walker testified that during the time he was in the store prior to the July 3 election, he observed her on the floor and she was doing better than average. When Assistant Store Manager Albert Borssuk was asked if she was generally a good worker, he answered, "Very good worker." She was on a 2-week vacation at the time of the election. When she 'reported back to work on Monday, July 7, Store Manager Psilopoulos discharged her According to her testimony, "He . . . told me that he was sorry he had to let me go and I said, `What for? . . The union talk is all over, what's the difference9 ' He said, `I'm firing you for insubordination .' I said, `For what?' He said, `For the past two weeks.' Well, I said, `What insubordination in the past two weeks?' He said, `Against me, Mr. White and Mr. Borssuk ' " Marianetti further testified that she had been in the store several times during her vacation. She denied having any conversation during that time with Assistant Store Manager Raymond White (who later testified as a company witness, but who gave no testimony about Mananetti ever being insubordinate to him) Mananetti testified that she did have a conversation with Assistant Store Manager Borssuk during her vacation , but indicated that she had not said anything insubordinate to him . (Bors- suk later testified in detail about his conversations with Marianetti during the election campaign , but nowhere stated that she had been insubordinate .) Mananetti then testified, "Another day I walked in the store while on vacation and I stopped to talk to Mickey Lawrence and Mr. Psilopou- los came in and walked over to me and says, `Fran, quit talking to the employees.' I said, `All I did was stop to ask Mickey to meet me at the restaurant after she gets through at 1.00 ' He said, "I would appreciate it if you don't talk to her." When Psilopoulos testified, the Company introduced into evidence his notes of the July 7 discharge conference. They indicated that he terminated Fran Mananetti for "Insubordination to me and Mr. White During union activity Fran found it necessary when asked to do something to make remarks such as `get lost' `get off my back' while other employees were present." The notes do not indicate when she made such remarks, or to whom . When questioned about his conversations with Marianetti , he testified that he had a number of conversations with her, and that he made a report of each conversation and put it in her folder. "I had one conversation, at which time I'm not sure, about her general attitude toward me . . . I've had Mrs Marianetti tell me to get off her back and to get lost when giving her instructions . Therefore, would have discussed insubordination with her. . . I'd say that is what I would have reported at specific times in her folder . Again, the dates I'm not sure of." (He appeared to be deliberately vague.) The Company introduced the six intercompany memos in Marianetti's personnel fold- er. All of them seem to be related to her union activity during the campaign . Three were written by Borssuk, on April 9 and 10, and three were written by Psilopoulos, on April 14, May 15, and May 31. Not a word is mentioned in any of them about Marianetti being insubordinate to any supervisor, about her attitude toward Psilopoulos, or about her telling him or any other supervisor to "get off her back" or to "get lost." Thus, neither the testimony of Assistant Managers White and Borssuk , nor the reports to Marianetti's folder, support Psilopoulos' claim that she had been insubordinate. I note that the first four memos to Marianetti's folder were written shortly after Psilopoulos revealed the Company's discriminatory motivation by telling Ideal District Manager Delaney "it was only a matter of time until the people who were prounion in the store would be out," and telling him to "start laying the ground- work for getting rid" of a prounion shoe department employ- ee. It is clear from both Psilopoulos ' and Walker's testimony that Psilopoulos wanted to discharge Mananetti during the election campaign, but was restrained by Vice President Walker Under these circumstances, it would appear that if Marianetti had been insubordinate before going on vaca- tion, she would have been reprimanded for it and a memo would have been added to her personnel folder, as "ground- work" for her discharge. She positively denied that she had been accused of insubordination Having found Psilo- 230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD poulos not to have been a trustworthy witness, I discredit his testimony that she had been insubordinate , and that he had discussed it with her. (He conceded on cross- examination that insubordination had not been mentioned in any of the memos in her personnel folder.) When later questioned about what happened while Mar- ianetti was on vacation , Store Manager Psilopoulos testified, "I had occasion to tell Mrs Marianetti not to bother our employees on working time . . and this would occasion a remark like, `Get off my back' or `Get lost' from Mrs. Marianetti ." From the way he testified, it seemed that this was a mere repetition of earlier such remarks, and that it did not make enough impression on him for him to recall just what was said . Having found that he fabricated testimony about earlier insubordination, and having noted that his assistants , White and Borssuk, did not corroborate his claim that Marianetti had been insubordinate to one or both of them , I have considerable doubt in my mind whether or not this testimony is likewise fabricated . Howev- er, even assuming that Marianetti did make such a remark to Psilopoulos while she was on vacation , I find from all the evidence and circumstances , including the Company's discriminatory motivation and union animus, that Psilopou- los and Vice President Walker were then seeking a pretext for discharging this leading union supporter, and that the Company did discharge her on her first workday after the election (at a time when the discharge could not be used as a basis for setting aside the election) in order to discourage future union activity. The Company contends, though, that the thing which precipitated Marianetti's discharge was her conduct in call- ing Vice President Walker a "son-of-a-bitch" at the preelec- tion conference on July 3, after Walker had objected to her being a second union observer at the election. But in making this contention (based on Walker's and Psilopou- los' testimony at the trial), the Company offers no explana- tion why this accusation was nowhere mentioned in Store Manager Psilopoulos' discharge conference notes, which confirm Marianetti's testimony that when Psilopoulos dis- charged her, he accused her of being insubordinate to only the store supervision. The Company's election observer, who Walker testified had overheard the remark , was not called as a witness to corroborate Walker 's and Psilopoulos' testimony. Psilopoulos (who testified that he was not present to hear the remark) claimed that Walker was quite upset afterwards and "told me that Mrs Marianetti was to be dismissed when she returned from vacation for insubordina- tion toward him, " yet gave no explanation for not carrying out Walker's purported instructions . (Emphasis supplied.) When recalled to rebut Walker and Psilopoulos' testimony, Marianetti positively denied making the remark , and the union representative at the preelection conference testified that he did not hear it. I find that this purported reason for the discharge is a mere fabrication , belatedly added by Walker and Psilopoulos in the hope of strengthening the Company's defense. The Company also contends that it "had what it feels was more than adequate grounds for discharging Mananetti" earlier but "deferred disciplinary action prior to the election in order to insofar as possible preserve the laboratory type conditions mandated by the Board," and further, that Vice President Walker had refused to permit Store Manager Psilopoulos to discharge her because of the policy established on March 19 that Walker would not permit any personnel actions which "would tend to upset the equilibrium of the work force." These arguments ignore the direct evidence of the Company's discriminatory motivation , as expressed by Psilopoulos to a supervisor (Delaney) before his dis- charge. Furthermore, as found above, Walker authorized on March 29 the discriminatory discharge of Department Manager Essig, a leading organizer for the Union. (This discharge, as well as Delaney 's April 1 discharge, occurred in the early part of the organizing drive, before the petition for an election was filed Of course, any discriminatory discharge occurring in the period between the filing of the election petition and holding of the election could result in the setting aside of the election, upon the filing of timely election objections.) Moreover, having considered all the evidence, I have concluded that Psilopoulos was attempting to lay the ground work for a pretextual discharge of Mananetti. Accordingly, I find that the Company discharged Marianetti because of her active union support , and that the discharge violated Section 8(a)(3) of the Act as alleged in the complaint. 5. Discharge of Pamela Armon Employee Armon (who was discharged on July 7) had been employed about 3-1/2 years as a cashier and courtesy desk clerk . During the organizing campaign, she openly supported the Union . At one employee meeting conducted by Store Manager Psilopoulos , she disputed some of the information he was giving, and in another meeting when he said, "this should be one happy family," she spoke up, "Well, this used to be one happy family but it's not any more, it's like Sing Sing now." On April 3 (6 days after Psilopoulos instructed Ideal District Manager Delaney to start laying the groundwork for getting rid of a prounion employee), Assistant Store Manager White began writing memos to Armon's personnel folder for being tardy (The store opened at 10 o'clock, and for months she had been reporting to work late almost every morning-sometimes as much as 15, 30, or more minutes after her 9 o'clock starting time. ) She had not heeded repeated verbal reprimands . She refused to sign the April 3 memo, and continued to report late, despite continued warnings . Even after her starting time was changed from 9 to 12 o'clock , she was tardy about half of the time (from 1 to 9 minutes, except 23 minutes once on a Saturday). Prior to the union activity in the store , Armon had been reprimanded for arguing with , and being discourteous to, customers . In February, as credibly testified by Assistant Manager Borssuk , she told a customer, "Goddamn it, I don't have to put up with this. You didn't buy this particular merchandise in the store and I 'm not going to accept it as a return from you." On May 22, Borssuk overheard Front Supervisor Beihler request Armon not to open her register but to relieve the girl on the courtesy desk for the lunch hour. In front of customers, Armon responded, "This goddamn store, J M FIELDS INC, OF FLORIDA 231 I have to put up with this everytime I come in here. I see no reason why this has to go on." This was reported to Assistant Manager White, who wrote his fourth memo to her personnel folder, for "being late & her bad attitude toward customers & employees." (The first three memos, dated April 3, 18, and May 1, were for tardiness.) On Saturday, May 24, White overheard Armon complaining, in front of customers and other cashiers and customers, to Beihler about his asking her to go from one register to another. Armon admitted telling Beihler that "nobody knows what they're doing around here," and "I probably have to wind up cleaning that register before I work on it," and that this was a poor place to work. (Armon testified, "I was angry. I had been pushed around that store from the beginning to the end, believe me ") White suspended her for the rest of the day, and on the following Monday, when Store Manager Psilopoulos returned, he suspended her for the week (When asked about the disci- pline, she testified, "I didn't think we were in school that we had to be disciplined. Okay, what was the reason I was laid off for a week, because I was bad?") On July 3, Armon was the union observer at the election, which the Union lost. On Monday, July 7, when Armon heard about department manager Manonetti's discharge, she called in that she was sick, and did not work that day. On Tuesday, July 8, she got into an argument with a customer soon after arriving at work. As credibly testified by Assistant Manager White, the customer thereafter com- plained to him that when she was going through Armon's register with an article which had no price ticket, Armon asked her why she buys clothes with no tickets The customer "didn't like it," and Armon told her to "stick them up her-." (Armon denied making the remark However, White impressed me as an honest witness, and I discredit the denial.) White reported the incident to Store Manager Psilo- poulos, who (after checking with Vice President Walker) discharged Armon for the incident, for continued tardiness, and insubordination. Having considered all the evidence and circumstances, I find that the General Counsel has failed to prove by a preponderance of the evidence that the assigned reasons for Armon's discharge, including her serious misconduct on the day of her discharge, were not the real reasons for her termination. I shall therefore recommend dismissal of the allegation that Armon was unlawfully discharged. CONCLUSIONS OF LAW 1 By discriminatonly discharging William Essig on March 29 and Filomena Mananetti on July 7, 1969, to discourage membership in the Union, the Company engaged 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. 2. By discharging Neal Delaney on April 1, 1969, to give a color of validity to the discriminatory discharge of Essig, the Company interfered with, restrained, and coerced its employees in the exercise of their Section 7 rights, in violation of Section 8(a)(1) of the Act. 3. By coercively interrogating nonsupervisory department managers, by advising and warning them that they could not join a union or engage in union activity, by threatening one of them with discharge if he solicited for the Union, and by issuing an employee a written warning for tardiness in order to lay the groundwork for discriminatorily discharg- ing the employee, the Company further interfered with the exercise of its employees' Section 7 rights, in violation of Section 8(a)(1) of the Act. 4. The General Counsel failed to prove that the discharge of Pamela Armon violated the Act. 5 The General Counsel failed to prove that the Company violated the Act by creating the impression of surveillance of union activities, or by conducting interviews with small groups of employees THE REMEDY I shall recommend that the Respondents be ordered to cease and desist from the unfair labor practices found and from like or related invasions of the employees' Section 7 rights; to take certain affirmative action designed to effectuate the policies of the Act, to offer reinstatement to William Essig, Filomena Marianetti, and Neal Delaney, with backpay computed in a manner set forth in F. W Woolworth Company, 90 NLRB 289, plus interest at 6 percent per annum as prescribed in Isis Plumbing & Heating Co., 138 NLRB 716; and to post appropriate notices. Accordingly, on the basis of the foregoing findings and conclusions, and on the entire record, I recommend pursuant to Section 10(c) of the Act issuance of the following: ORDER Respondents, J. M. Fields Inc., of Florida and the Ideal Shoe Co., wholly owned subsidiaries of Food Fair, Inc., their officers, agents, successors, and assigns, shall: 1. Cease and desist from- (a) Discharging or otherwise discriminating against any employee because of his membership in or activity on behalf of Retail Store Employees Union, Local 345, AFL- CIO, Retail Clerks International Association, or any other labor organization. (b) Discharging any supervisor in order to give a color of validity to the discriminatory discharge of an employee. (c) Coercively interrogating any of its employees about employees' union sympathy or union activity. (d) Advising or warning any nonsupervisory department manager that he cannot join a union or engage in union activity (e) Threaten any nonsupervisory department manager with discharge if he solicits for a union (f) Issue any employee a written warning for a purpose of laying the groundwork for discriminatorily discharging the employee. (g) In any like or related manner interfering with, restrain- ing, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act (a) Offer William Essig, Filomena Marianetti, and Neal Delaney immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially 232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole in the manner set forth in the section of the Trial Examiner's Decision entitled "The Remedy " (b) Notify the above-named persons if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (c) Expunge from his personnel records, and disregard, the written warning issued to Joseph Libertore on March 29, 1969. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, person- nel records and reports, and all records necessary to analyze the amount of backpay due under the terms of this recom- mended Order (e) Post in its Gates, New York, store copies of the attached notice marked "Appendix "2 Copies of the notice, on forms provided by the Regional Director for Region 3, after being duly signed by an authorized representative of the Respondents, shall be posted by the Respondents immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material (f) Notify the Regional Director for Region 3, in writing, within 20 days from the receipt of this Decision, what steps the Respondent has taken to comply herewith' IT IS ALSO ORDERED that the complaint be dismissed insofar as it alleges violations of the Act not specifically found for the earnings lost as a result of their discharge in 1969, plus 6 percent interest. WE WILL NOT discharge or discriminate against any employee for supporting the Retail Store Employees Union, Local 345, AFL-CIO, Retail Clerks Interna- tional Association, or any other union. WE WILL NOT discharge any supervisor in an effort to conceal a discriminatory motivation for discharging an employee. WE WILL NOT coercively interrogate any employee about our employees' union sympathies or union activi- ties WE WILL NOT tell any nonsupervisory department manager he cannot join a union or engage in union activity. WE WILL NOT threaten any nonsupervisory depart- ment manager with discharge if he solicits for a union. WE WILL NOT issue any employee a warning to lay the groundwork for discriminating against him. WE WILL withdraw from his folder, and disregard, the written warning given to Joseph Libertore on March 29, 1969. WE WILL NOT unlawfully interfere with our employ- ees' union activities. J M. FIELDS INC., OF FLORIDA AND THE IDEAL SHOE CO., WHOLLY OWNED SUBSIDIARIES OF FOOD FAIR, INC. (Employers) ' 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, recommendations, 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 in the event that the Board's Order is enforced by a judgment of a United States Court of Appeals, the words in the -notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board " ' In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify the Regional Director for Region 3, in writing, within 10 days from the date of this Order, what steps the Respondents have taken to comply herewith " APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL OFFER William Essig, Filomena Marianetti, and Neal Delaney full reinstatement, and pay them Dated By (Representative) (Title) Note: We will notify the three above-named discharged persons if presently in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Univer- sal Military Training and Service Act, as amended, after discharge from the Armed Forces. This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, Fourth Floor, The 120 Building, 120 Delaware Avenue, Buffalo, New York .14202, Telephone 716-842-3100.