Irv's Market

IRV'S MARKET Irving N. Rothkin d/b/a Irv's Market and Retail Clerks International Association, Local No. 698, AFL-CIO. Case 8-CA-5802 January 30, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERSJ,B % ROWN AND JENKINS On August 14, 1970, Trial Examiner Jerry B. Stone issued his Decision in the above-entitled proceeding, finding that the 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 Respon- dent filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its 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 preju- dicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, and the entire record in the case, including the exceptions and brief, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the Recommended Order of the Trial Examiner and hereby orders that Respondent, Irving N. Rothkin d/b/a Irv's Market, Akron, Ohio, his agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Re- commended Order .2 ' Although duly served, in accordance with the Board's Rules and Regula- tions, with a complaint and notice of hearing in this proceeding, counsel for the Respondent did not appear at the hearing or request a continuance. The Trial Examiner proceeded to take the testimony of the General Counsel's witnesses, and thereafter issued his Decision and Recommended Order. The Respondent contends that the Trial Examiner was without power to proceed to a hearing in the absence of Respondent's counsel, in the General Counsel's failure to serve a "reply" to Respondent's answer, and in the fact that alleged identical unfair labor practice issues are now before the courts on petitions to enforce and to review a prior order of the Board . We are of the view that Respondent's explanation of his counsel's failure to appear lacks sufficient merit tojustify a rehearing . Nor is there merit in his contention that the Trial Examiner was without legal authority to proceed to a hearing in the circum- stances of this case . We find no basis for concluding that the Respondent was denied due process. 2 In footnote I I of the Trial Examiner's Decision, substitute "20" for "10" days. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE 271 JERRY B. STONE, Trial Examiner : This proceeding,' under Section 10(b) of the National Labor Relations Act, as amended, was tried pursuant to due notice on June 23, 1970, at Akron, Ohio. The charge and amended charge were filed on March 24 and April 9, 1970, respectively. The complaint in this matter was issued on May 8, 1970. The basic issues concern allega- tions of Section 8(a)(1), (3), and (5). The specific acts of alleged violative conduct concern the initiation and spon- soring of a petition to have the Union removed as bargain- ing agent, solicitation of and coercing of employees to sign said petition, interrogation as to the signers of said petition, termination of an employee (Joan Graham), and the refusal to bargain collectively with the Union. The styling of the instant proceeding and the complaint allegations as to identity of the Employer set forth the Re- spondent as Irving N. Rothkin and Fran Rothkin d/b/a Irv's Market. The Respondent in this case denies that there is a partnership. The General Counsel adduced in the record in this case the pleadings in a prior case involving the same parties and the same issue, the Trial Examiner's Decision therein, the Board's Decision and Order therein, and the Board's Supplemental Decision and Order. See Irving N. Rothkin d/b/a Irv's Market, Case 8-CA-5906, as reported in the Board's decisions 175 NLRB No 121, and 179 NLRB No. 140. The General Counsel contends that the pleadings in the above-mentioned case reveal an admission of the contended partnership status. An examination of the pleadings and the Trial Examiner's Decision in such case cast great doubt on the propriety of relying on such pleadings as admissions to such effect . Thus, in Case 8-CA-5096 the original case styling and complaint allegations identified the Respondent as a partnership. The answer to the pleadings therein con- tained in the introductory paragraph that the answer was filed by Irving N. Rothkm d/b/a Irv 's Market set forth a denial that "neither he, nor any of his agents, have engaged in an unfair labor practice affecting commerce as set forth and defined in the National Labor Relations Act," and, however, set forth that Respondent "admits the allegations of Paragraph 2." Paragraph 2 of the complaint involved alleged in effect the partnership status in question herein. The Trial Examiner's Decision in Case 8-CA-5096 indi- cates that the styling of the . case and pleadings as to Respondent's identity were amended at the hearing. Con- sidering the issues herein and the foregoing, I find it proper to take official notice of the proceeding in Case 8-CA-5096 and the documentary and oral pleadings at the hearing as revealed by the record in such case. Such official notice reveals that the ambiguity in the pleadings was resolved by the General Counsels amendment of his allegations so as to allege Respondent as a "sole proprietor " and not as a "partnership. Upon such pleadings and motions for amendment, the Trial Examiner made findings of fact to the effect that the Respondent was a sole proprietor and amended the styling of the case . The Board adopted such finding and amendments. Considering all of the foregoing , I find it improper to attach weight to the pleadings in Case 8-CA-5096 for the i The styling of this proceeding has been corrected. 188 NLRB No. 35 272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD purpose of making a finding of " artnership status." Rath- er, Ifind it proper to attach weight to the pleadings therein and the findings in Case 8-CA-5096 as a basis for finding that Respondent is a sole proprietor. Considering all of the foregoing, I find it proper to correct the styling of the instant case to so reflect. All parties were afforded full opportunity to participate in the proceeding. Upon the entire record in the case and from my observa- tion of witnesses, I hereby make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER 2 Irving N . Rothkin d/b/a Irv's Market operates a retail grocery store in Akron, Ohio. His gross sales in 1967 exceed- ed $500,000 either directly or indirectly from extrastate points. Based upon the foregoing, it is concluded and found that the Respondent is engaged in commerce within the meaning of Section 2(6) and g(7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED 3 Retail Clerks International Association, Local No. 698, AFL-CIO, is, and has been at all times material herein, a labor organization within the meaning of Section 2 (5) of the Act. It is so concluded and found. III THE UNFAIR LABOR PRACTICES A. Preliminary Issues 1. Supervisory status Based upon the pleadings and admissions therein, I find that Richard Rothkin, at all times material herein, occupied the position of Respondent's store managger, and is and- phas been an agent of Respondent, and is and has been a supervi- sor within the meaning of Section • 2(11) of the Act . It is so concluded and found. The pleadings place in issue whether Fran Rothkin is a partner of the Respondent, is an agent of the Respondent, and acts as a supervisor within the meaning of Section 2(11) of the Act. The evidence relating to Fran Rothkin's status as a " artner" concerns the pleadings in Case 8-CA-5096. As indicated in the initial statement of the case and in the business of the Employer (section I) of this Decision, I find it improper and do not base a finding of a "partner" status upon the pleadings in Case 8-CA-5096. There is no evi- dence in this case to otherwise establish such status . Accord- ingly, the complaint allegation to such effect falls for lack of proof. As to the "agent" and "supervisory" status otherwise, there is credited testimony by McCown to the effect that Fran Rothkin and Irv Rothkin operate the store involved in this proceeding. There is also credited testimony by Graham 2 The issue as to Respondent's identity and the business of the Employer was litigated in Case 8-CA-5096. No newly discovered or additional eviden- ce has been adduced in this proceeding. Accordingly, the findings of fact are based upon the findings in Case 8-CA-5096, Irving N Rothkin d/b/a Irv's Market, 175 NLRB No. 121 and 179 NLRB No. 140. 3 The facts are based upon a composite of the credited testimony of Henni- gin and the litigated findings in Case 8 -CA-5096, Irving N. Rothkin d/b/a Irv's Market, 175 NLRB No. 121, and 179 NLRB 140 relating to Fran Rothkin's involvement in her (Graham's) initial hiring. The foregoin g establishes a prima facie case in support of the allegations that Fran Rothkin is a supervisor and agent of the Respondent. In this proceeding the General Counsel's case is unopposed by testimony or other facts. Accordingly, it is concluded and found that Fran Rothkin is an agent and supervisor (within the meaning of Section 2(11) of the Act) of the Respondent. 2. The appropriate bargaining unit 4 All of Respondent's regular full-time and regular part- time employees, but excluding professional employees, guards, and supervisors as defined in the Act , constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 3. Union's status as exclusive bargaining representative S As of July 12, 1968, the appropriate bargaining unit, re- ferred to above, was composed of Nancy Ross, Patricia Taylor, James McDuffee, Cynthia Hennesey, and Karen Sands. As of July 12, 1968, authorization cards designating the Union as their representative for the purposes of collective bargaining hpd been signed by each of the employees in the appropriate bargaining unit. At all times on and after July 12, 1968, the Union has been the exclusive representative of all the employees in the appropriate bargaining unit for the purpose of collective bargaining with respect to rates of pay, wages , hours of employment, and other conditions of employment. On April 30, 1969, the Board in its Decision and Order, issued in 175 NLRB No. 121, and subsequently in its Su - plemental Decision and Order issued on December 2, 1969, in 179 NLRB No. 140, concluded the Union to be the exclusive bargaining representative of the employees in the appropriate bargaining unit, described above, within the meaning of Section 9(a) of the Act. 4 The facts are based upon the finding of the same issue in Case 8-CA- 5096, Irving N. Rothkin d/b/a Irv's Market, 175 NLRB No. 121, and 179 NLRB No. 140 As indicated, the unit set out herein is the unit found in the aforementioned case. The General Counsel's complaint appears to have followed the descriptive terms of the appropriate unit set forth in the remedial notice required in such case . Such notice terms are drafted in a style indica- tive of a Respondent's notification to employees of what the appropriate unit is Thus reference is made to "All my regular full time .. employees," instead of to "All regular full time. employees." First, from reading the complaint, I find it hard to believe that anyone would have a real question as to what appropriate unit was being described . Thus, the language as used is not really misleading. Further the complaint otherwise refers to the case reported in 175 NLRB No. 121. The Respondent's entire answer reveals a clear knowledge of the background basis of the case reported in 175 NLRB No. 121. In short, the answer to this issue appears frivolous in nature and of a "tongue in cheek" type of humor. I find the slight error in pleading to be of insubstantial variance from the facts and find that the pleadings placed Respondent on clear notice of the issues herein. 3 The facts are based upon the litigated findings in Case 8 -CA-5096, Irving N Rothkin d/b/a Irv's Market, 175 NLRB No. 121, and 179 NLRB No. 140. There is either a minor typographical error or poor printing as to the word in General Counsel's complaint allegation pertaining to the word "selected." Respondent's pleadings alludes to the word "relected" and apparently argues in defense of the allegation by virtue of pendency of Case 8-CA-5096 in the Federal courts . The issue is sufficiently presented that Respondent was aware of the question of designated status. IRV'S MARKET B. Refusal To Bargain Undermining the Union Discriminatory Discharge 1. The negotiations Subsequent to the Board's decision in 179 NLRB No. 140 issued on December 2, 1969, Hennigin, for the Union, met with Dailey, attorney for Respondent. What occurred is revealed by the following credited excerpts from Hennigin's testimony. A. Yes. I had a meeting with Mr. Daily, an attorney for the company, on January 20 for the purpose of negotiating a contract at which time I submitted to him a proposala copy of the contract with Kroger Compa- ny to serve as a model of the contract with Irv's Market. Mr. Daily immediately told me that there would be no union shop, no checkoff dues, there would be no union h. ; !rh and welfare union programs and no r a- sion program negotiated into these contracts. He told me that he felt the unit was stale. Our meeting lasted about an hour. I came prepared to negotiate the day but it only lasted about an hour. We spent ten minutes on this discussion of the contract and the rest of the time we wasted talking about other things that interested him. Q. All ri t. Now, subsequent to that did you have another bar- gaming meeting with Respondent's representative, At- tome y John Dailey? A. No, I had no further meetings with him. I request- ed certain information from him regarding employees, their seniority dates, their current wages, their current names and addresses and he told me that he would file an answer or counter-proposal to my contract that I had submitted which he did a week or two later. However, in the meantime I found out that very same thing that had happened the first time, one of the Rothkin boys was circulating a petition to get rid of the union and had influenced one of the employees to take this petition around and I felt Mr. Daily and this com- pany were acting in bad faith. There was no point in my meeting with them until they were ready to act in good faith. Q. Okay. Now, when you said they did the same thing they did before, you were referring to what? A. The Company instigating a petition to get rid of the union in the store. 2. The letter repudiating the Union Graham's Discharge 6 In December 1969 Respondent's store manager, Richard Rothkin, spoke to employee McCown. What occurred is revealed by the following credited excerpts of McCown's testimony: A. He wanted to know if I would write a letter to the National Labor Relations Board saying that we didn't want a union in the store and I asked him if that would do any good. He told me I would have to have five signatures on the letter and also that I would have to have an attor- ney. I said that I wasn't going to pay for an attorney 6 The facts are based upon the credited testimony of McCown, Graham, Whitaker, and Stenl. 273 and he said he already had an attorney . He T im. me the name of this attorney and told me to call him. s a A. Yes, I asked him and he said I would have to have an attorney and I said I wouldn't pay for one. He said "I have one." I said, "Is it Daily?" He said, "No, that's my attorney." He said, "Your attorney will be Bob Carabell." s s A. I went and got the tablet. I went back to the office and then I went out and I told Richard Rothkin I don't know what you want me to write in this letter. So he came back in and showed me. Richard Rothkin took a piece of paper and wrote on it what he wanted McCown to have in her letter. McCown copied this letter and Richard Rothkin tore up his paper. The letter was as follows: National Labor Relations Board Dear Sirs: We the employees of Irv's Mkt. wish to change our representation from the Retail Clerks Union. Thereafter during the next few weeks McCown solicited signatures to her letter during worktime. Eventually, Mc- Cown secured four other signatures in addition to her own to the letter. Several of the employees either did not want to sign or did not. Among the employees who did not want to sign were Elva Whitaker, Rich Martin, Steril, and Gra- ham. Whitaker and Martin, however, ultimately signed the letter for McCown. During the time that McCown was attempting to secure signatures to her letter, Richard Rothkin repeatedly ques- tioned her about her progress. During this time Richard Rothkin spoke to Elva Whitaker about a letter to keep the Union out, told her that there was such a letter, and asked if she would sign the letter. Richard Rothkin also asked Whitaker to tell Ruth Dunbar and Jerry Allen that she had signed the letter. Later Richard Rothkin told McCown that Whitaker would sign her letter. McCown then contacted Whitaker about signing the letter to get the Union out. Whitaker then signed McCown's letter. Sometime after McCown had unsuccessfully tried to get Steril to sign the letter to get the Union out, Richard Roth- kin spoke to McCown. Richard Rothkin asked McCown if she had asked Steril to sign the letter. McCown told Richard Rothkin that she didn't think Steril would sign the letter. Around December 17, 1969, Richard Rothkin asked Mc- Cown if she had talked to employee Joan Graham about signing the letter. McCown told Richard Rothkin that she had not had a chance to do so. Richard Rothkin suggested that she call Graham at home about the matter. McCown telephoned Graham and asked her about signing the letter to get the Union out. Graham told McCown that she would not sign the letter. McCown then told Richard Rothkin that Graham would not sign the letter to get the Union out. A few minutes later Richard Rothkin telephoned Graham and told her in effect that she was fired and to come and pick up her pay. What occurred with respect to the Richard 274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Rothkin-Graham conversation is revealed ^by the following credited excerpts of Graham's testimony. A. He asked me to come and pick up my pay and that he wanted to talk to me . I said, "Well, I have a lot of things to do and I can't get away now . Couldn't we talk on the phone now and I will pick up my pay Monday when I come in to work?" He said that Iliad given my answer to Nancy and he wouldn't be needing me any longer. Q. Did you say anything to him after that? A. I said, "Well, I thought you had told me in that meeting on September the 5th when I was hired that Nancy was for the union." He said, "She is." She has been fighting for it for about four years . I said, "Well, I had a phone call from her asking me to sign the paper against the union saying that we didn't want the union in there." I stated that she had called me about it and he said he didn't know anything about the paper, but if she was doing something like that he would sure appreciate it because he needed the signatures to keep the union out. Q. Was anything else said to you by Mr. Rothkin? A. I asked him in the conversation if my work was satisfactory. He said, "Yes, quite so." But financially they were under a burden trying to keep the union out and they would have to cut expenses somewhere and this would mean the ppaarttime help which was Elva and I, we would have to-be cut. I said I would like to know how I got to be part time when I was full time. He told me that I should pick up mick ay . I said, "Why don't you just send it home with Q yAll right. At some point did somebody else get on the line? A. Yes, r knew that somebody had picked up the phone and was listening in but he was talking during this period and he didn't hear them pick it up and it was Vicky on the extension. Q. What did Vicky say on the extension, if anything? A. She stated that the chickens had come in. Q. Did Dick say anything else to Vicky? A. He asked her how long she had been on the phone and she said just a short while. He told her to go check the chickens in. Q. Did he say anything to you after that? A. When she hung up he said, "I am not supposed to say anything to the employees about a union or anything, but there seems like there is a little bit of a mixup and I will have to straighten things out. Q. All right. And after that did either you or he say anything further on the telephone? A. He just stated that I should pick up my pay and they didn't need me any longer. Although McCown had solicited signatures to the letter designed to repudiate the Union, she did not contact Attor- ney Carabell. Apparently in late January or February 1970, Richard Rothkm spoke to McCown about the letter. Rich- ard Rothkin asked McCown if she had seen Carabell and mailed the letter to the NLRB. McCown told Richard Roth- kin that she had not seen Carabell, that she had seen the address of the NLRB in the newspaper and had mailed her letter directly to the NLRB. Rothkin told McCown that she would have to write another letter and give it to Carabell. Rothkin told McCown that Carabell would write a letter to 7 The facts reveal that employee Steril picked up an extension telephone at the store and heard part of the conversation . I am persuaded that this explains the apparent doubletalk in Richard Rothkm's remarks. the NLRB to go along with her letter. McCown then wrote a letter to the same effect as her previous letter. Thereafter, McCown was able to secure the signature of only one other employee to this last letter. 3. Conclusions (a) Considering all of the foregoing, I find that the facts overwhelmingly reveal, as alleged, that the Respondent, by Richard Rothkin, (1) initiated and sponsored a petition (the letter) to have the Union removed as the collective-bargain- ing representative of its employees; (2) solicited and coerced employees into signing said petition and solicited signatures from employees for said petition; and (3) interrogated em- ployees as to which of its employees had signed said peti- tion. Such conduct is clearly violative of Section 8(a)(I) of the Act. It is so concluded and found. (b) Considering all of the foregoing with reference to the question of Graham's discharge on or about December 20, 1969, I find that the facts overwhelmingly reveal that Re- spondent discharged Graham because of her refusal to sign a letter repudiating the Union as her bargaining representa- tive. Such conduct has the natural effect of discouraging union and protected concerted activity and is violative of Section 8(a(3) and (1) of the Act. (c) Considering all of the foregoing, Respondent's obliga- tion to bargain with the Union as collective-bargaining agent for its employees and the totality of Respondent's conduct in attempting to undermine the Union by the peti- tion or repudiation described above, and by the discharge of Graham for her refusal to sign such petition, I find that the facts as a whole overwhelmingly reveal that the Respon- dent has refused to bargain collective) with the Union. Such conduct is violative of Section 8(aX5) and (1) of the Act. C. Interrogation S Jerry Allen, who had formerly worked at Miracle Mart, was hired on October 8, 1969, by the Respondent. On Octo- ber 9, 1969, Respondent's agent, Fran Rothkin, spoke to Allen at work. Fran Rothkin asked Allen if he had belonged to the union at Miracle Mart. Allen replied that he had belonged to a union at Miracle Mart. Fran Rothkin asked Allen if he would join a union again. Allen told Rothkin that he did not think that he would. Considering the foregoing in context with all of the facts in this case, I conclude and find that the Respondent, by Fran Rothkm, engaged in illegal interrogation as to employ- ee union activity or desires on or about October 8, 1969. Such conduct is violative of Section 8(aXI) of the Act. It is so concluded and found. IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the Respondent's oper- ations described in section I, above, have a close, intimate, and substantial relationship 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 the Respondent has engaged in unfair s The facts are based upon Allen's credited testimony. IRV'S MARKET labor practices, it will be recommended that Respondent cease and desist therefrom and take certain affirmative ac- tion to effectuate the policies of the Act. It having been found that the Respondent discharged Joan Graham on December 17, 1969, in violation of Section 8(a)(3) and (1) of the Act, the Recommended Order will provide that Respondent offer her reinstatement to her job, and make her whole for loss of earnings within the meaning and in accord with the Board's decision in F. W. Woolworth Company, 90 NLRB 289; Isis Plumbing & Heating Co., 138 NLRB 716, except as specifically modified by the wording of such Recommended Order. Having found that the Respondent has refused to bargain collectively with the Union , it will be recommended that the Respondent, upon request, bargain with the Union as the exclusive representative of his employees in the appropriate unit. Because of the character and scope of the unfair labor practices herein found, the Recommended Order will pro- vide that the Respondent cease and desist from the specific unfair labor practices found, and that it cease and desist from in any other manner *interfering with , restraining, and coercing employees in the exercise oftheir rights guaranteed by Section 7 of the Act. Upon the basis of the above findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Irving H. Rothkin d/b/a Irv's Market, the Respondent, is an em Io er en aged in commerce within the meaning of Section 2(6)) and (7) of the Act. 2. Retail Clerks International Association, Local No. 698, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging Joan Graham , the Respondent has dis- couraged union membership by discrimination in regard to tenure of employment, thereby en in unfair labor practices in violation of Section 8(a)(3) a g nd (1) of the Act. 4. All Respondent's regular full-time and regular part- time employees, but excluding professional employees, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 5. At all times on and after July 12, 1968, the Union has been the exclusive representative of all the employees in said unit for the purpose of collective bargaining with respect to rates of pay, wages, hours of employment, and other condi- tions of employment. 6. By refusing to bargain with the Union on and after December 2, 1969, Respondent engaged in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 7. By the foregoing and by interfering with, restraining, and coercing its employees in the exercise of rights guaran- teed in Section 7 of the Act, Respondent engaged in unfair labor practices proscribed by Section 8(ax 8. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER 9 Upon the basis of the foregoing findings of fact and con- clusions of law and the entire record in this case, I recom- 275 mend that Respondent, its agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating Respondent's employees concerning their union membership, activities, and sympathies. (b) Initiating and sponsoring a petition to have the Union removed as the collective-bargaining representative of Res ondent's employees. (c) Soliciting and coercing Respondent's employees into signing said petition, referred to above, and soliciting signa- tures from the employees for said petition. (d) Interrogating Respondent's employees as to which of its employees have signed such petition, referred to above. (e) Discharging or otherwise discriminating against em- ployees in regard to hire or tenure of employment or any term or condition of employment, in order to encourage or discourage membership in any labor organization. (f) Refusing to bargain collectively with the Union as the exclusive representative of Respondent's employees in the unit herein found to be appropriate. (g) In any other manner interfering with, restraining, or coercing Respondent's employees in the exercise of their rights guaranteed in Section 7 of the Act except to the extent that such rights may be affected by lawful agreements in accord with Section 8(a)(3) of the Act. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Upon request bargain with Retail Clerks International Association, Local No. 698, AFL-CIO, as the exclusive representative of Respondent's employees in the unit herein found appropriate and embody any understanding reached in a signed agreement. (b) Offer to Joan Graham immediate and full reinstate- ment to her former position or, if such position is no longer available, to a substantially equivalent position, without prejudice to her seniority or other rights previously enjoyed, and make her whole for any loss o{pay suffered by reason of the discrimination against her, in the manner described above in the section entitled "The Remedy." (c) Notify Joan Graham if presently serviig in the Armed Forces of the United States of her right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (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 other records necessary to analyze the amount of backpay due under the terms of this Recommended Order. (e) Post at Respondent's store and offices at Akron, Ohio, copies of the attached notice marked "Appendix."10 Copies of said notice, on forms provided by the Regional Director for Region 8, after being duly signed by Respondent's repre- 9 In the event no exceptions are filed as provided by Section 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 Section 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. 10 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." 276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sentative, shall be posted by him immediately upon receipt thereof, and be maintained by Respondent for 60 consecu- tive 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. (f) Notify the Regional Director for Region 8, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.' I 11 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read : "Notify the Regional Director for Re- gion 8, in writing, within 10 days from the date of this Order, what steps Respondent has 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 NOT coercively interrogate our employees as to their or other employees' union membership, activi- ties, or desires. WE WILL NOT initiate and sponsor a petition to have the Union removed as the collective-bargaining repre- sentative of employees. WE WILL NOT solicit and coerce employees into sign- ing said petition; nor will we solicit signatures from the employees for said petition. WE WILL NOT interrogate employees as to which em- pl ees have signed such petition. WE WILL NOT discharge or otherwise discriminate against employees in regard to hire or tenure of em- plo ent or any term or condition of employment, in order to encourage or discourage membership in any labor organization. WE WILL NoT refuse to bargain with Retail Clerks In- ternational Association, Local No. 698, AFL-CIO, as the exclusive representative of employees in the bar- gaining unit. WE WILL NOT in any other manner interfere with, re- strain, or coerce employees in the exercise of their rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by lawful agree- ments in accordance with Section 8(a)(3) of the Act. WE WILL bargain collectively, upon request, with Re- tail Clerks International Association, Local No. 698, AFL-CIO, as the exclusive representative of Respondent's employees in the bargaining unit de- scribed below with respect to rates of pay, wages, hours of employment, and other conditions of employment and, if an understanding is reached , embody such un- derstanding in a signed contract . The bargaining unit is: All regular full-time and part-time employees, but excluding professional employees, guards, and supervisors as defined in the Act. WE WILL offer to Joan Graham immediate and full reinstatement to her former position or, if such position is no longer available, to a substantially equivalent pos- ition, without prejudice to her seniority or other rights previously enjoyed, and make her whole for any loss of pay suffered by reason of the discrimination against her. WE WILL notify Joan Graham if presently serving in the Armed Forces of the United States of her right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. All employees are free to become or remain, or refrain from becoming or remaining, members of Retail Clerks International Association, Local No. 698, AFL-CIO, or any other labor organization, except to the extent provided by Section 8(a)(3) of the Act. IRVING . N. ROTHKIN d/b/a IRV's MARKET (Employer) Dated By (Representative) (Title) 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, 1695 Federal Office Building, 1240 East Ninth Street, Cleveland, Ohio 44199, Telephone 216-522-3715.