Mr. S Liquor Marts, Inc.

MR. S LIQUOR MARTS 425 Mr. S Liquor Marts, Inc. and Retail Clerks Union, Local 770, Retail Clerks International Association. Case 21-CA-12563 January 31, 1975 DECISION AND ORDER BY ACTING CHAIRMAN FANNING AND MEMBERS JENKINS AND KENNEDY Pursuant to notice, a hearing was held in Los Angeles, California, on June 25, 1974, before me duly designated as Administrative Law Judge. Appearances were entered on behalf of the General Counsel and Respondent and briefs were received from said parties on July 29, 1974. Upon the entire record in this proceeding and my observation of the witnesses as they testified, I make the following: FINDINGS OF FACT On September 27, 1974, Administrative Law Judge Stanley Gilbert issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in answer to Respondent's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, Mr. S Liquor Marts, Inc., Temple City and Rosemead, California, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order.2 I The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board 's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect . Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. 2 Member Kennedy adopts pro forma the Administrative Law Judge's recommendation that Respondent post the prescribed notice at all four stores. DECISION STATEMENT OF THE CASE STANLEY GILBERT, Administrative Law Judge: Based upon a charge filed on April 1, 1974, by Retail Clerks Union, Local 770, Retail Clerks International Association, hereinafter referred to as the Union, the complaint herein was issued on May 14, 1974. The complaint, as amended, alleges that Mr. S Liquor Marts , Inc., hereinafter referred to as Respondent, violated Section 8(a)(1) and (3) of the Act. Respondent, by its answer, as amended , denies that it engaged in conduct violative of the Act. 216 NLRB No. 78 I. BUSINESS OF RESPONDENT Respondent, a California corporation, is engaged in the retail sale of liquors at four stores in southern California, including stores located in Temple City and Rosemead, California, the only two of its stores which are directly involved in this proceeding. Respondent, in the normal course and conduct of its said business operations, annually derives gross revenues in excess of $500,000 and annually purchases and receives goods,- products, and materials in excess of $50,000 from suppliers located within the State of California, which suppliers, in turn, purchase and receive said goods, products, and materials directly from suppliers located outside the State of California. As is admitted by Respondent, it is, and has been at all times material herein, an employer engaged in commerce and in business affecting commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED As is admitted by Respondent , the Union is, and has been at all times material herein , a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The management personnel involved in this proceeding are Louis Smaldino, Respondent's president; Edward Rose, manager of Respondent's Temple City store; and John Piraino, manager of Respondent's Rosemead store. Respondent admits that the above-mentioned management personnel are supervisors within the meaning of the Act. A. The Issues 1. Whether or not Respondent violated Section 8(a)(3) and (1) of the Act by the admitted discharge of John Foster, employed at the Temple City store, on March 29, 1974. 2. Whether or not, through the conduct of Rose and Smaldino on March 29, 1974, Respondent engaged in various acts violative of Section 8(a)(1) of the Act with respect to employees in the Temple City store. 3. Whether or not, through the conduct of Piraino, on March 29 and March 30, 1974, Respondent engaged in conduct violative of Section 8(a)(1) of the Act with respect to employees at the Rosemead store. 426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. Foster's Discharge It appears that Foster was the principal, if not the only, employee active in the organizing campaign on behalf of the Union. According to Foster's credited testimony, during the period between March 25 and 28, 1974, he solicited eight or nine employees at three of the stores personally and another employee at the fourth store through the mail. It appears that at the time there was a total of 1 I employees in the four stores . It further appears from Foster's credited testimony that among the employees he solicited on behalf of the Union were Jack Immel and Tom Anderson. On April 1, 1974, Smaldino received a request for recognition from the Union. The General Counsel contends that it was because of his activity on behalf of the Union that Foster was discharged on March 29. On the other hand, Respondent contends that his discharge was for his poor work performance and inordinate use of the telephone. Further, Respondent contends that its decision to discharge Foster could not have been discriminatorily motivated because it had no knowledge of the union organizational activity until shortly after Foster's discharge had been effected. Essentially a resolution of the issue as to Foster's discharge must be predicated upon the credibility of Foster's testimony as opposed to that of Rose and Smaldino. Foster, who had been employed as a clerk by Respond- ent for a total of 18 months with a break of 1 year and had been employed continuously from June 1973 until his termination on March 29, worked as a night clerk in the Temple City store during the shift starting at 4 p.m. He testified that on March 29 he arrived about 10 minutes to 4. According to Foster's testimony, when he came in he was immediately confronted by a question from Rose. Foster's testimony is as follows: A. He said something about, "What's this? Jack Immel said you were circulating a union petition." Q. Who is Jack Inunel? A. At that time he was a night clerk at the Arcadia store. Q. Had you previously discussed the union with Mr. Immel? A. Yes, I had. Foster then testified that he said that he "didn't know anything about it" and proceeded into the stockroom. Foster further testified as follows: I came back out. He again started up a conversation and said that he had told me that I was going to tell him about this petition or something was going to happen to me and he also said that Lou Smaldino was on his way down- Foster then called the union office, apparently to report his conversation with Rose, and was informed that a repre- sentative would come to the store. Smaldino arrived about 4:30 p.m. and Foster was told to take over the cash register while Rose and Smaldino went to the office (which is located outside the store in a separate building) where they remained for approximately 30 minutes. Rose then returned to the store and Foster was told to report to Smaldino at the office. According to Foster's testimony when he walked into the office Smaldino told him "John, I think you're a nice guy, but I'm afraid I am going to terminate you" and he showed him a statement written by Rose. The statement was as follows: For the last several weeks, I have noticed a general lack of responsibility by John Foster in the fulfillment of his functions as a night clerk in our store. This condition has been complicated by the fact that when confronted with this issue he has failed to improve his performance. I see no other option at this point than to dismiss him. After several attempts to resolve the problems I have come to the conclusion that they cannot be resolved. Foster further testified that after showing him Rose's statement, Smaldino resumed talking to him. His testimony with respect thereto is as follows: A. He went on to mention that what he said I had done wrong, like not picking up the broom at night and taking it into the back room and I wasn 't mopping the spots in the floor, hadn't cleaned his desk at night and I had left some beer flats in the box and I hadn't cleaned the parking lot the night before. Q. Did he say anything further? A. He later, at the end of the conversation, he mentioned that he said that Tom [ostensibly referring to Tom Anderson] had said you were circulating a union petition. I'd be glad to sign it, just bring it in . That's what he told me. Rose testified that he recommended that Foster be terminated. Rose testified as follows as to the reasons for his recommendation: A. His work performance during, especially during the month of March had been bordering on totally incompetent. He had an attitude problem about the store and about working for our company, which I had talked to him about on several occasions. Q. Any other reasons that he was terminated? A. Specifically, the items I spoke to' Mr. Foster about were keeping the store neat and orderly, cashing customers' checks, cleaning the premises , facing up shelves, doing the bottles, dumping the trash, day-to- day work. Rose then testified in considerable detail as to the complaints he had with respect to Foster's work perfor- mance and attitude and as well as incidents in which he warned Foster about his poor work performance starting around the first of February. It appears from Foster's testimony that Rose had on occasion complained to him about his work performance but denied that he had threatened him with discharge . From my observation of the witnesses and a study of their testimony it is my opinion that Rose engaged in exaggeration in his testimony and on the other hand Foster attempted to minimize the MR. S LIQUOR MARTS 427 complaints of management . It is inferred that Rose and Smaldino were dissatisfied with Foster's work performance and attitude but not to the extent to which they testified. It is noted that in the middle of February Foster received 'a bonus of $150 predicated in part upon his prior wprk performance and that the bonus was very large compared with bonuses received by other employees. Smaldino testified as follows with respect to giving bonuses: Q. How often is a bonus given? A. It is typically quarterly, since I took over the business. Q. A bonus is based on length of service with the company? A. No, sir. Q. Based on position with the company? A. No, sir. Everybody is-can receive a bonus and a lot of factors go into it. Basic one is whether the company made a profit or not. Q. Is it true, isn't it, that some employees don't receive bonuses? A. That's been the case. Q. And some employees receive as small as $20.00? A. Which is typically commensurate to their contribution to the company, yes, sir . During that period of service. Thus, it is inferred from the size of the bonus given Foster in mid-February that for the quarterly period prior to the quarter in which he was terminated his work performance must have been especially good. No purpose would be served in attempting to analyze in detail the testimony with respect to the complaints of management about Foster's work performance and atti- tude during the period from February 1 to the date of his termination, since (for reasons set forth hereinbelow) it is concluded that it was Foster's activity on behalf of the Union which primarily motivated his discharge and that while there was some truth to the testimony of Rose and Smaldino with respect to their dissatisfaction with Foster's work performance and attitude, said dissatisfaction was not the primary motive for his discharge. Rose and Smaldino testified at length as to the events of March 29 which precipitated their decision to discharge Foster. Foster had worked the night of March 28 and Rose testified that when he arrived at about 8 in the morning on March 29 he observed that the store and the parking lot was a "mess"; that Smaldino arrived about 15 minutes later and complained to him about the condition of the store and asked him what he was planning to do about it; that Smaldino said he would not tolerate it any more; and that he told Smaldino he would talk to Foster when he reported at 4 o'clock and, if he did not get an "adequate response" from him he would call Smaldino. Rose testified as follows as to what occurred when Foster reported to work: A. John walked in and walked to the back room to get his name badge and his pens . Came back out of the back room, and I immediately confronted him with the condition of the store that morning. Q. What did you say to him exactly? A. I said to him, "John, is there some reason that you couldn't get the work done around here last night?" He said, "Well, what do you mean?" I responded with the list that I had written up that morning after Mr. Smaldino had left and said, "Here. This is what I mean." He looked over the list and said, "You know, this is all just a bunch of piddley shit." I then said, "Are you going to improve or am I going to have to do something about this?" He responded that, "You really don't have a point. This is all very small stuff and I am not - I am not too concerned with all of it." Foster testified that Rose made no mention of his job performance when he reported to work on March 29. Rose's testimony continues as follows: It was almost a dismissal on his part. He then went to the back room. I called Mr. Smaldino. Q. About what time was this that you called Mr. Smaldino? A. I called Mr. Smaldino about ten minutes after four. Q. What did you say to him at that point and what did he say to you? A. I asked him if he would please come up to the store. He said, "Well, why?" I said, "Because I have talked to John Foster." I said, "Now, I want to talk to you about this problem, because I don't think we are going to get it resolved." Smaldino arrived at the store a short time later and he and Rose had a conference. Rose's testimony with respect thereto is as follows: We left the store and went over to Mr. Smaldino's office and were no more inside when I said, "Lou, either you are going to fire him or I am going to quit. I can't work with him any more. I am doing twice the work that I would normally have to do." He responded, "Calm down and let's get specific about it. Let's talk about it." I told him at that point what had transpired between Foster and I. The fact that he was incorrigible as far as I was concerned, and informed him that I just couldn't work with Mr. Foster. I wrote a statement out for him and he concurred with the statement and said, "Okay. Let's go back over to the store." Smaldino testified with respect to his conference with Rose in the morning of March 29 which is substantially in accord with the testimony of Rose with respect thereto. Smaldino further testified that about 4:15 he received a call from Rose saying that he was unable to resolve the problem with Foster and that he then went to the Temple City store. His testimony with respect to his conference with Rose in the office of the Temple City store is substantially in accord with the testimony of Rose. 428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Smaldino then summoned Foster to his office and Smaldino's testimony as to his conversation with Foster in his office is as follows: A. Well, it was a rather brief conversation. I said something to the effect, "John, I am terminating you." I says, "We have tried everything we can to improve your performance and it just hasn't transpired." He says, "Well, what does that mean?" And I proceeded to itemize the things. Q. What did you tell him? A. Specifically, that the store had been persistently left in a sloppy condition whenever he had worked the night before. That he's failed to cash checks for some of our very best customers and I just couldn't understand that because we have a very tight check cashing procedure and these people had cards and they were very good customers. That I just couldn't tolerate his not getting along with Rose anymore and that, you know, this was the end of the line and that's the way it was going to be. I then asked him for his badge and he also-he had some pens in his pocket that he threw on the counter and he says, "These are yours, too," and we walked back over to the store and - Q. Did he say anything to you during this conversation? A. Oh, yeah. You know, just he says, "I don't believe all this." He says, something to the effect, "This is all piddley shit." I said, "John, it's not piddley. I am terminating you over it." I said, you know, "It's a shame, but you know, you are just not doing your job here and I just can't tolerate the situation in the store anymore." While Foster was in Smaldino's office conferring with him, the union representative, Bernard Estes, arrived at the store. Rose testified that while Foster and Smaldino were conferring, a man who did not identify himself entered the store and asked to see Foster and when he was told he was in a meeting, said he would wait for him (Foster). In the courtroom he identified Estes as the man to whom he was referring. Rose testified, in describing the man, that he noticed a pin in his lapel but he was not sure but that it looked like a "retail clerk's pin." Shortly after Estes arrived Foster and Smaldino returned to the store. Rose testified that he overheard Estes ask Foster what was going on and Foster responded that he had been fired and that they went outside the store to talk. Smaldino testified that when he entered the store after his conference with Foster he saw a man in the store (Estes) wearing a retail clerk's pin ; that he heard Foster say something to Estes to the effect that he had been terminated ; that they (Foster and Estes) walked outside the store into the parking lot; and that he then went to them and asked them to "please remove themselves from the premises." Estes testified that he did not wear a union pin in his lapel and that when Smaldino approached him when he was talking to Foster in the parking lot Smaldino said that he was not too familiar with labor law and questioned whether he did not need his (Smaldino's) permission to talk to his employees; that he asked Smaldino if Foster is one of his office employees; and that Smaldino replied "not any more." Both Rose and Smaldino testified that up to this point they had no knowledge of any union organizational activity but that they learned of it and Foster's participa- tion in it a short time thereafter . Smaldino testified that after he had told Foster and Estes to leave the premises he went back to his office to obtain a replacement for Foster and that he called Tom Anderson and asked him if he could work that evening. Smaldino's testimony as to the ensuing conversation is as follows: He asked me, "Gee, how come?" And I said, "Well, I had terminated an individual in one of the stores," and he said, "Gee, who is that?" And I said, "It was John Foster over at the Temple City store," and that, you know, could he work for me that evening. He then asked me something to the effect that, "Well, gee, how come you fired him?" And I said, "Well, because [he] and Rose just can't get along and the guy is just persistently not doing his job," and he said, "Well, gee, does it have anything to do with the union petition?" And I said, "What?" He says, "Yes. They are circulating a union petition in the company." I said, "No, I am not aware of that," and that was the end of the conversation. According to Smaldino's testimony this information from Anderson was the first knowledge he had of the Union's organizational activity and, in effect , he denied Foster's testimony that he mentioned Anderson's report to him of Foster's union activity at the termination interview. Rose testified that he first learned of the union organization and Foster's activity with respect thereto about 5 :30 that evening after Smaldino reported to him the information he had obtained from his conversation with Anderson. Rose denied Foster's testimony to the effect that when he first reported to the store at 4 o'clock he confronted Foster with the statement that he had a report from Immel that Foster was circulating a petition on behalf of the Union. Rose further testified that he had never talked to Immel about the Union. It is noted at this point that neither Immel nor Anderson was called as a witness. C. Concluding Findings Re Foster's Discharge Foster was the more convincing witness and his testimony is credited with respect to the conversation he had with Rose when he reported to work around 4 p.m. on March 29. It is quite clear that Foster reacted to their conversation by calling the Union and seeking the aid of a representative. According to Rose's version of what was said, Foster had little or no reason to seek union aid. Rose testified that Foster indicated a lack of concern. On the other hand, Foster's testimony that Rose confronted him with a report from Immel that he circulated the union petition would explain Foster's hasty call to the Union for assistance. Further, Pollo's credited testimony that when he reported to work (shortly after the conversation between Rose and Foster) Foster said to him "they found out about the Union" tends to corroborate Foster's testimony. MR. S LIQUOR MARTS 429 Also, Foster was a more convincing witness and his testimony is credited with respect to his termination interview with Smaldino particularly as to his testimony that he (Smaldino) had a report from Anderson that he (Foster) was circulating the union petition . Smaldino testified that he did not learn about the union activity until some time after he concluded the termination interview and called Anderson who then informed him of the circulation of the union petition. It is unreasonable to assume that Foster, in his testimony, could have anticipat- ed that it was Anderson who informed Smaldino of the union activity had Smaldino not mentioned it to him. Moreover, it appears unlikely that Smaldino would have acted as drastically as he did in ordering Estes and Foster out of the parking lot had he not, contrary to his testimony, been aware of the Union's activity and Foster's participa- tion in it. Consequently, it is concluded that Foster's discharge was primarily motivated by his activities on behalf of the Union in view of its timing and the finding that Respondent had acquired knowledge of his union activity prior thereto. While it appears that there is some merit to Respondent's contention that Foster's work performance had deteriorated, it appears unlikely that an employee who had merited a large bonus of $150 could have so completely altered his work performance as to have required the drastic action of discharge. Consequent- ly, it is concluded that Foster was discriminatorily discharged on March 29, 1974, in violation of Section 8(aX3) and (1) of the Act. he overheard between Piraino and DiGuiseppe and, therefore, must have been on March 29. E. Concluding Findings of Independent Violations of Section 8(a)(1) It is found that Respondent, through the conduct of Rose -on March 29, violated Section 8(aXi) by unlawfully interrogating Foster about the report from Immel of the circulation of a union petition and insisting that he be informed about it. It is found that Respondent violated Section 8(aXl) of the Act on March 29, 1974, by the conduct of Rose in interrogating Pollo as to whether or not he had signed a union card. It is found that Respondent violated Section 8(a)(1) of the Act on March 29, 1974, by the conduct of Piraino in unlawfully interrogating Ponzo. It is found that Respondent violated Section 8(aXl) of the Act on March 30, 1974, by the conduct of Piraino in unlawfully interrogating DiGuiseppe and also by his threatening that if the Union came in Respondent would close three of the stores and work one with its managers. There is insufficient evidence to support a finding that Respondent created the impression that it was engaging in surveillance of union activities or other protected concert- ed activities as alleged in the complaint. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE D. Other Findings Larry Pollo, who was employed at the Temple City store on March 29, credibly testified that he arrived shortly before 5 on that day and Foster told him (as indicated above) that "they found out about the union." This statement was made by Foster during the period that Rose and Smaldino were conferring in the office prior to the termination of Foster. Pollo further testified without contradiction, and his testimony is credited, that later that evening Rose asked him if he had signed a union card and he admitted that he had. This interrogation occurred after Foster's termination but prior to 7 p.m. James DiGuiseppe testified without contradiction, and his testimony is credited, that on March 30, 1974, Piraino, the manager of the Rosemead store where DiGuiseppe worked asked him if he had signed a union card; and that when he replied in the negative, Piraino said that he knew Larry Pollo had signed one and that if the Union came in management would close three of the stores and work one with its managers. Michael Ponzo, who was also employed at the Rosemead store, credibly testified that he overheard part of the abovementioned conversation between Piraino and DiGui- seppe. Ponzo also testified that Piraino asked him if he had signed with the Union; that he replied in the affirmative; that Piraino stated he shouldn't have done it; that he did not think the Union would get in; that he, Piraino, asked him if anyone else had signed ; that he said I think so, I saw Larry Pollo's name. While Ponzo was not too clear as to dates, it appears that the conversation he had with Piraino occurred the day before the aforementioned conversation The unfair labor practices of Respondent set forth in section III, above, occurring in connection with its operations set forth in section I, above, have a close, intimate and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY It will be recommended that the Respondent be ordered to cease and desist from engaging in the unfair labor practices found herein and take certain affirmative action, as provided in the recommended Order below, designed to effectuate the policies of the Act. It having been found that John Foster was unlawfully discharged on March 29, 1974, it will be recommended that Respondent be ordered to offer him immediate and full reinstatement to his former job, or, if his job no longer exists, to a substantially equivalent position without prejudice to his seniority or other rights and privileges. It will be further recommended that Respondent be ordered to reimburse him for any loss of pay he may have suffered as a result of its discriminatory action against him in the manner set forth in F. W. Woolworth Company, 90 NLRB 289, 291-293 (1950), together with 6-percent interest thereon in accordance with Isis Plumbing & Heating Co., 138 NLRB 716 (1962). It will be further recommended that Respondent be required to post the notice referred to in the Order hereinbelow in all four of its stores since the Union's organizational activity extended to all of them. 430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the basis of the foregoing findings of fact and upon the entire record in this proceeding, I make the following: CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in commer- ce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent discriminatorily discharged John Foster on March 29, 1974, in violation of Section 8(aX3) and (1) of the Act. 4. Respondent violated Section 8(a)(l) of the Act on March 29 and March 30, 1974, by unlawfully interrogating employees as to their union activities and union activities of their fellow employees and by threatening economic reprisal should the Union be successful in becoming their bargaining representative. 5. General Counsel has failed to prove by a preponder- ance of the evidence the allegation that Respondent unlawfully created the impression it was engaging in surveillance of the Union or other protected concerted activities. Upon the foregoing findings of fact, conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER I (c) Post at its four stores in southern California copies of the attached notice marked "Appendix." 2 Copies of said notice on forms provided by the Regional Director for Region 21 , after being duly signed by an authorized representative of Respondent, shall be posted by Respond- ent immediately upon receipt thereof and maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 21, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. The allegation in the complaint that Respondent unlawfully created the impression that it has engaged in surveillance of the Union or other protected concerted activities should be, and is hereby, dismissed. I In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 2 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals , the words in the notice reading "Posted by Order of the National Labor Relations Board " shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." Respondent, Mr. S Liquor Marts, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Unlawfully interrogating employees regarding their union activities or the union activities of their fellow employees. (b) Threatening employees with loss of their jobs if they select Retail Clerks Union, Local 770, Retail Clerks International Association, or any other labor organization, as their bargaining representative. (c) Discouraging membership in the aforesaid Union, or any other labor organization, by discriminating against employees in regard to hire or tenure of employment or any term or condition thereof. (d) In any other manner interfering with, restraining, or coercing employees in the exercise of rights under Section 7 of the Act. 2. Take the following affirmative action which is deimed necessary to effectuate the policies of the Act: (a) Offer John Foster immediate and full reinstatement to his former job or, if his job no longer exists, to a substantially equivalent position , without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay suffered by him by reason of his discriminatory discharge in the manner set forth in the section hereinabove entitled "The Remedy." (b) Upon request, make available to the Board or its agents, for examination and copying, all payroll and other records containing information concerning its backpay obligation under this recommended Order. APPENDIX NOTICE To EMPLOYBBs POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT unlawfully interrogate employees regarding their union activities or the union activities of their fellow employees. WE WILL NOT threaten employees with loss of their jobs if they select Retail Clerks Union, Local 770, Retail Clerks International Association, or any other labor organization, as their bargaining representative. WE WILL NOT discourage membership in the afore- said Union or any other labor organization by discriminating against employees in regard to hire or tenure of employment or term of conditions thereof. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in their exercise of rights under Section 7 of the Act. WE wu.L offer John Foster immediate and full reinstatement to his former job or, if his job no longer exists, to a substantially equivalent position , without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay suffered by him by reason of his discriminatory discharge. MR. S LIQUOR MARTS, INC.