Forest City Enterprises Inc.

FOREST CITY ENTERPRISES, INC. Forest City Enterprises Inc. and Retail Clerks Inter- national Association , Local 698, AFL-CIO. Case 8-CA-8395 March 26, 1975 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND PENELLO On November 13, 1974, Administrative Law Judge Joseph 1. Nachman issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions 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 au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclu- sions of the Administrative Law Judge except as modi- fied herein' and to adopt his recommended Order. The Respondent, inter alia, excepts to the Adminis- tral ive Law Judge's conclusion that the alleged eco- nomic justification underlying Uren's layoff is not sup- ported by the record. It contends that it reduced the payroll at its Chapel Hill store because sales in Chapel Hill's hard lines (hardgoods) division fell below those set as a goal in its projected budget for January and February 1974. Examination of the Respondent's exhibits and tes- timony shows that the Administrative Law Judge mis- interpreted the meaning of certain percentages as re- flecting a comparison of actual sales with the projected budget. Those percentages do not reflect a comparison with the budget, but rather with sales in January and February 1973. Nonetheless, the exhibits do not sup- porl the testimony of Respondent's witnesses at the hearing. Lenny, Respondent's director of retail stores, Cleve- land'-Akron, testified that he had instructed Chapel i The Respondent excepts, inter alia, to certain clerical errors made by the Administrative Law Judge. We find merit in certain of these exceptions and hereby correct them The correct termination date for R Heltzer is February 28, 1974, for E Dodge, February 9, 1974; and for J. Heil, April 27, 19'74 Similarly, the Administrative Law Judge's observation that Susan Haigh was terminated appears to be in error We find no support for that conclusion in the record. The Respondent is also correct in its contention that the Administrative Law Judge erred in stating that the budget for the electrical department of the Chapel Hill store could not be determined Respondent's exhibits show that the February 1974 budget for that depart- ment. was $14,100, and that sales fell some $2,200 short of thatfigure. With the exception of the mistaken conclusion that the electrical department budget was not in evidence, these errors do not appear to have had any impact on the Administative Law Judge's findings or conclusions and they do not appear to be of any material significance The error concerning the electrical department budget led the Administrative Law Judge to conclude, incorrectly, that it was not possible to determine the February 1974 hard lines budget. 109 Hill to reduce its payroll by $1,000 a month. The al- leged need for that saving arose because, in Lenny's words, "the sales trend in his Hard Lines Department primarily were down from budget and that we were considerably down from the budget more than the other stores." The exhibits indicate that the February 1974 budget for hardgoods was $128,200. Actual sales totaled $129,503. The budget for January 1974 was not put in evidence by the Respondent; however, sales in that month exceeded those of 1973 by an even wider margin than they did in February. Therefore, it is only reason- able to infer that sales in January 1974 also exceeded the budget. In any event, the records submitted by the Respondent in support of the alleged reason for reduc- ing the Chapel Hill payroll show sales in hardgoods running ahead of, not behind, budget. In fact, hard- goods was the only one of the three divisions in the Chapel Hill store which did reach its February 1974 sales goal. No records were submitted by the Respondent which would permit a comparison of the Chapel Hill store's performance on a budget basis with that of other stores. But, since its hardgoods division was ahead of its budget, any such comparison would be irrelevant. Accordingly, we conclude, as the Administrative Law Judge did, that the Respondent has failed to sub- stantiate its alleged economic justification for reducing the payroll at its Chapel Hill store. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Respondent Forest City Enterprises Inc., Akron, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. DECISION STATEMENT OF THE CASE JOSEPH I. NACHMAN, Administrative Law Judge: This case tried before me at Akron, Ohio, on October 3,1 with all par- ties present and duly represented, involves a complaint2 pursuant to Section 10(b) of the National Labor Relations Act, as amended (herein the Act), which alleged that Forest City Enterprises, Inc. (herein Respondent or Company), vi- olated Section 8(a)(3) and (1) of the Act by discharging Bev- erly Uren because of her activity on behalf of Retail Clerks International Association, Local 698, AFL-CIO (herein Union), and independently violated Section 8(a)(1) of the Act by interrogating Susan Haigh concerning her assistance to 1 This and all dates mentioned are 1974, unless otherwise stated. 2 Issued August 7, on a charge filed May 23, and amended July 24 217 NLRB No. 30 110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and support of the Union. By answer Respondent admitted certain allegations of the complaint , but denied the commis- sion,of any unfair labor practice. For reasons hereafter more fully stated I find and conclude that the discharge of Barbara Uren was-discriminatorily motivated, but that the General Counsel failed to establish by a preponderance of the evidence that Susan Haigh was coercively interrogated within the meaning of Section 8(a)(l) of the Act. All,parties were afforded full opportunity to participate in the trial, to introduce relevant and material evidence, to argue orally on the record, and to submit briefs. Oral argument was waived. Briefs submitted by the General Counsel and Re- spondent, respectively, have been duly considered. Upon the entire record, including the pleadings, stipulations of counsel, and the evidence, including my observation of the demeanor of the witnesses while testifying, I make the following: FINDINGS OF FACTS Respondent is engaged in the operation of a chain of retail stores at various points in the United States. The only store involved in this proceeding is located in Chapel Hill, a subur- ban area of Akron, Ohio, and is one of six stores comprising the Cleveland-Akron division of Respondent's operations. In late 1973 or early 1974, the Union began a campaign to organize the employees at the Chapel Hill store, and Store Manager Pengel admits that he became aware of this activity about mid-February and promptly reported the fact to his division manager, Don Lenny. The Chapel Hill store is di- vided into three major branches, lumber, appliances, and hard line, with a manager in charge of each branch, who reports to the store manager. The hard line branch is in turn subdivided into various departments.' Beverly Uren was employed by Respondent in October 1973, and assigned as a sales person in the toy department, where she worked until shortly after January 1, when she was transferred to housewares.' Respondent admits that Uren was "a good employee," and made no complaint concerning the manner in which she performed her duties. Uren learned of the union activity at the store on March 2, but took no part in that activity until March 4, when after talking with Union Agent Bittenger and obtaining authorization cards from her, Uren began soliciting employees , apparently on the sell floor. According to Uren, of the approximately 81 employees in the unit, 50 signed cards, and of these she procured signatures on 27. One of the cards she procured was signed by the employee on or about March 4, in the presence of then Housewares Manager Cooper. On March 8, Manager Pengel called Uren to his office and 3 No issue of commerce or labor organization is presented . The complaint alleges and the answer admits facts which establish those elements. I find said facts to be as pleaded. 4 These are paint, plumbing & heating, electrical, tile, tools, hardware, furniture, housewares, and seasonal. The seasonal department sells products appropriate to the time of the year, such as toys during the Christmas season, and garden equipment and supplies during the growing season All depart- ments are company-operated except domestics, not involved here, which is leased 5 Prior to accepting employment with Respondent, Uren had worked for a competitor for some 13 years, and told Respondent that she did not want to make a change and be laid off after the Christmas rush Uren was assured that her employment would be permanent. told her that because sales were not meeting budgeted levels,' she was -being laid off immediately, and that she should look for another job, because it would be a long time before Respondent would do any hiring.' At the time of their conversation Pengel admittedly did not offer Uren work in any, other department of the store. However, later in the day of March 8, Uren observed a newspaper advertisement by Respondent for full-time employees in its seasonal department.' Following her discharge on March 8, Uren began devoting more or less full time to assisting the Union in its campaign to organize Respondent's employees, and for this purpose visited the store frequently and for extended periods of time. During such visits Uren observed that Sharon Tinapple and Vickie Johnson, neither of whom had theretofore worked at the store, were now working as full-time employees, Tinapple in the plumbing-electrical department , and Johnson in the seasonal department. About a week after her discharge, while in the store, Pengel asked Uren to come to his office, and there asked if she had any success in finding another job; that Golden Circle, a competitor, was hiring, and volunteered that if he were called, he would give her a good recommendation. However, he did not offer Uren another job in the store. During this conversation, Uren asked Pengel why he had not offered her the job in the seasonal department. Pengel replied this was no place for a woman to work. When asked during his testimony why he had not offered the job in the seasonal department to Uren, Pengel replied that the job in that department was part-time, and he assumed that Uren was interested only in a full-time job.9 Pengel admitted that when he hired Sharon Tinapple as a full-time employee in the plumbing-electrical departments he gave no consideration to calling Uren back. His explanation for not doing so was that he was "not bound by any obligation to bring [Uren] back," and that the decision had been made "to try something a little different and try a new person and train them accordingly." Just what the "something a little different" was, Pengel did not explain. On or about May 29, just 4 days after the initial charge herein was served on Respondent, and which it probably received about May 27, Pengel sent Uren a message that he wished to see her. When they met a few days later, Pengel offered Uren a full-time job in the paint department which Uren accepted. She returned to work on or about June 3, and was so employed at the time of the trial herein, When she returned to work all terms and conditions of employment which she enjoyed prior to her termination applied, except that her pay was increased from $2 to $2.40 an hour. Just what events brought about the opening in the paint depart- ment Pengel did not explain. 6 Prior to the beginning of its fiscal year on February 1, Respondent prepares a budget of the sales it expects in each department, by months. 7 Pengel denied having made such a statement, but I do not credit his denial 8 Respondent offered no evidence to show that it did not place such advertisements, or that it really had no need for new employees. 9 Uren's testimony, which I credit, shows, as above set forth, that this was a full-time job. Respondent did not offer its payroll records or any other _ credible testimony to show that Uren was in error The failure to adduce such testimony gives rise to the inference that its records would not support Pengel. Interstate Circuit, Inc., et at v United States, 306 U.S. 208, 225-226 (1939). FOREST CITY ENTERPRISES, INC. Respondent's defense to the complaint is that Uren's termi- nation was dictated solely by economic necessity, and was in no way motivated by her union or concerted activity." To support its contention in that regard Respondent relies on the testimony of Store Manager Pengel and District Manager Lenny, together with certain documentary evidence identi- fied by them. Basically, this evidence shows that prior to Feburary 1, it prepares a budget of anticipated sales for each month of the ensuing fiscal year.]] In addition, sales com- parison reports are prepared each month comparing sales during the month with the sales in same month in the preced- ing fiscal year. Exhibits R-3 and R-4 are such reports for the months of January (which is in the preceding fiscal year) and February 1974 (the first month of the current fiscal year.) 12 District Manager Lenny testified (and his testimony is basi- cally corroborated by Store Manager Pengel), that when he received the monthly sales comparison report for February he discussed that report and the similar report for January with Pengel, particularly in 'the light of budgeted sales, and told the ]tatter that sales in the hard lines department were down from budget estimates; that the Chapel Hill store was in worse shape than any store in the Cleveland-Akron division; and that to compensate for reduced sales, payroll for the Chapel Hill store as a whole had to be reduced by $1,000 a month; that he was interested only in the result; that he gave no instructions as how the result was to be achieved; and that any reductions which added up to $1,000 a month in payroll costs, storewide, would achieve his purpose, and that existing vacancies might be counted toward the amount to be saved. In addition, Respondent's Exhibit R-1 purports to show all terminations at the store between January 1 and April 30, with the date of termination for each individual mentioned, and the date that individual was initially hired. The exhibit, however, does not include Uren's name nor does it include the name of Susan Haigh, who, the record shows, was ter- minated early in March. The exhibit also shows that R. Heltzer was terminated on February 28, E. Dodge and S. Orsich were each terminated on March 7, and employees K. Berry, J. Heil, and C. Kern were terminated March 8, the same day as Uren. Pengel testified that at least in the case of Berry, the termination was because of unsatisfactory work and not because of reduced sales. The exhibit also shows that in addition to Sharon Tinapple and Vickie Johnson, hired by Respondent during the month of March, as above set forth, and which did not appear on Exhibit R-1, Respondent also hired W. Butler on March 25, D. Schartiger on April 11, and H. Miller on April 16.13 Although the record shows that 10 Indeed, Store Manager Pengel testified that he was unaware of Uren's union activity until some hours after he discharged her In view of the testimony of Uren that she procured signatures to union cards while at work from March 4 until her discharge during the morning of March 8, one of such cards being signed in the presence of Department Manager Cooper, I reject P 'engel's testimony in that regard, and find that ,he was aware of Uren's activity at the time he discharged her Long Island Airport Limousine Serv- ice Corp, 191 NLRB 94 (1971), enfd 468 F 2d 292 (CA. 2, 1972) 1 1 Exh. R-2 is the budget for the fiscal year beginning February 1, 1974. It contains no figures for the month of January 1974, because that is the last month of the preceding fiscal year. 12 On these exhibits the only figures applicable to this case are those relating to the Chapel Hill store . A composite summary of Exh. R-2, 3, and 4, marked Appendix A, is attached to and made a part hereof. ill these three employees worked only a short period of time, there is no evidence as to the nature of the work they were hired to perform, nor is there any showing as why such jobs could not have been offered to and performed by Uren.14 Contentions and Conclusions - Upon consideration of the entire record, I am convinced, and therefore find and conclude, that Respondent's discharge of Uren on March 8 was discriminatorily motivated. When the General Counsel proves, as he did in the instant case, the classic indicia of a discriminatorily motivated discharge-that an admittedly satisfactory employee is ter- minated in the midst of a work week," without prior warn- ing or notice hard upon discovery of that employee's union activity-a prima facie case is established, and the burden- of evidence then shifts to Respondent to establish that the dis- charge was based on nondiscriminatory reasons. J..I. Gum- berg Co., 189 NLRB 889, 890. By the testimony of Pengel and Lenny, together with the exhibits above mentioned, Respond- ent sought to establish and argues that the termination of Uren was dictated solely by economic considerations. How- 13 How many other employees may have been hired by Respondent for the Chapel Hill store during the March-April period, the record does not show 14 Some of the evidence introduced by the General Counsel tends to indicate independent violations of Sec. 8(a)(1), but I find no such violation. The incidents referred to are: 1 Uren testified that when she visited Pengel's office at his request about mid-March, he asked her what benefits she hoped to gain from the Union, she replied that she would get job security, if nothing else; and Pengel then asked if her husband was active in the Union at his place of employment, and she replied that he was. The complaint does not allege such a violation, nor was the issue litigated at the trial. Accordingly I make no finding with respect thereto. 2. Cindy Kern testified that following her termination on March 8, she returned to the store on or about March 20 to pick up her final check, and that Pengel then talked with her in his office. According to Kern, Pengel brought up Uren's name; she (Kern) asked why Uren was terminated, and Pengel replied that Uren was a good worker and he hated to let her go, but he had to do so because she had signed a union card. Pengel demed that he made any statement to that effect There is no allegation in the complaint with respect to this, and the General Counsel conceded on the record that he was not offering this testimony to establish an independent violation of Sec. 8(a)(1), but only to support his 8(a)(3) allegation Accordingly, I make no 8(a)(1) finding in this regard, and find it unnecessary, for reasons here- after made apparent, to resolve the credibility issue with respect to the 8(a)(3) violation 3. The complaint alleges that on or about May 2, Supervisor Radu interro- gated an employee in the store, concerning that employee's union activity The answer denies not only that this incident occurred, but also that Radu was a supervisor. Employee Susan Haigh testified that when she reported for work on the day in question, Radu, who had by then succeeded Cooper as department manager of housewares and unfinished furniture, asked Haigh whether the lady from the Union had been to see her, she (Haigh) replied in the negative, and asked the reason for the question; Radu replied that the lady from the Union had been to see Sue White, another employee of the department, and thought she might have been to see Haigh. Radu denied she had any conversation with Haigh where the name of Sue White, or visits by union representatives to the homes of employees, was men- tioned. On the entire record, I am not satisfied that the General Counsel has proved by a fair preponderance of the evidence that this incident occurred as Haigh testified, and I find and conclude that the General Counsel has therefore failed to carry his burden with respect to this incident. Moreover, were I to credit Haigh's testimony in its entirety, the conversation would seem to to be casual and isolated. i5 The record shows that Respondent's workweek runs from Monday through Sunday, and the employees are paid biweekly on the Wednesday following the second Sunday Uren was terminated on Friday. 112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ever, my review of the entire record convinces me, and I therefore find and conclude, that the evidence relied upon by Respondent to support its claim does not support its conten- tion. I reach this consideration upon the totality of the follow- ing: 1. To begin with, I am not at all satisfied that the exhibits offered by Respondent show that the Company's business during January and February demonstrates declining busi- ness. Of the nine divisions in the, hard lines department, four show sales running ahead of budget estimates (paint, tile, tools, and hardware), with paint and tile running 16.3 and 30.2 percent, respectively, ahead of budget estimates . 16 Sales in plumbing and heating, seasonal, furniture, and housewares, although below budget estimates, do not appear to be substantially so. Sales for January and February , respec- tively, departmentwide, were substantially ahead of sales for the same month in previous year . Certainly, the documents introduced by Respondent do not appear to support Pengel's statement to Uren that housewares, where Uren worked at the time of her discharge, had the worst sales record of any department in the store." 2. On March 8, the very day Uren was discharged allegedly because of the necessity of reducing payroll costs, Respond- ent had an advertisement in the local newspaper for perma- nent, full-time help. No evidence was adduced to show what facts made this necessary, or that it really had no intention of hiring new personnel. 3. During the month of March , Respondent hired Sharon Tinapple and Vicky Johnson as full-time employees," and I find nothing in the evidence as why this work could not have been given to Uren , an admittedly satisfactory employee. Pengel's explanation that he did not offer the work to Uren because he was not bound by any obligation to her, and because he wanted to try something different, simply does not stand up. That Respondent would want to pass over an ad- mittedly satisfactory employee of substantial experience for an employee who had yet to prove her qualifications, simply strains credibility beyond the breaking point. 4. Pengel and Lenny testified that their discussion regard- ing reduced sales and the necessity for reducing payroll took place in late February, and according to Lenny his directions to Pengel were simply to effect a monthly reduction of $1,000 in payroll, and that it would be satisfactory to him whether the result was brought about by not filling vacancies or by laying off people. Exhibit R-1 shows that C., Berry was ter- minated on February 4, E. Dodge on February 9, S. Pryor on 16 It is not possible to compare sales against budget estimates for the department as a whole, because the documents introduced do not show budget estimates for the electrical department, unless the $23,800 budget for plumbing and heating is a combined budget for that and electrical . The two divisions are at times referred to in the evidence together . If this is in fact one division, sales were substantially ahead of budget estimates. " In housewares sales were down 7.1 percent in February, compared to February in the preceding year. In seasonal it was down 11.4 percent, and in electrical 12 percent In January sales were down from the preceding year 13.1 percent in housewares, 18 2 percent in furniture, and 14 5 percent in electrical, but there is no showing that reductions in force were either considered or made at that time. 18 I am aware that Pengel testified that one of these was employed on a part-time basis, but no corroborative evidence of that fact was offered Because of this lack of corroboration and Uren's testimony that she ob- served both of said employees working in the store on a full-time basis, and his general demenanor while testifying , I do not credit him in that regard February 15, and A. Holt on February 28. Whether these fobs were vacant when Lenny gave his instructions to Pengel, the record does show. Additionally, the record shows that Com- miso and Orsich were terminated on March 7, and Pengel admitted that the termination of K. Berry on March 8 was for improper performance of duty, not because of the neces- sity for reducing payroll. Assuming that the three vacancies caused- by the terminations of C. Berry, E. Dodge, and S. Pryor had all been filled when Pengel received his instruc- tions to reduce payroll-facts which Respondent did not establish-the remaining four terminations referred to brought about the required reduction in payroll costs without the necessity of reaching Uren, and the alleged reason for his termination falls." Consideration of the entire record, accordingly, presents a case where, as above found, the General Counsel has proved the classic indicia of a discriminatorily motivated discharge, and the defense upon which Respondent relies does not with- stand scrutiny. In these circumstances there is no alternative to a finding that Uren was discharged for discriminatory reasons. As the Court of Appeals for the Ninth Circuit stated the principle in Shattuck Denn Mining Corporation Iron King Branch v. N.L.R.B., 362 F.2d 466, 470, (1966): If he [the trier of fact] finds that the stated motive for a discharge is false, he certainly can infer that there is another motive. More than that, he can infer that the motive is one that the employer desires to conceal-an unlawful motive-at least where, as in this case, the surrounding facts tend to reinforce that infer- ence. Accordingly, I find and conclude the Uren was discharged because of her assistance to and support of the Union, and hence her discharge violated Section 8(a)(3) and (1) of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I state the following: CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Sec- tion 2(2) of the Act, and is engaged in commerce 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. By discriminating in regard to the tenure and other terms and conditions of employment of Beverly Uren, be- cause of her assistance to and support of the Union, thereby discouraging membership in the Union, Respondent engaged in and is engaging in unfair labor practices proscribed by Section 8(a)(3) and (1) of the Act. 19 Although the record does not show the wage rate those employees received, the federal minimum wage in effect in March was $ 1.60 an hour, or $64 a week per employee . For four employees this amounts to $256 a week Multiplying that figure by 52 and dividing the result by 12 provides a payroll deduction of $1,101 per month To the extent that these employees might have earned in excess of $ 1.60 an hour (Uren's rate was $2 an hour), the monthly payroll saving would be even greater and substantially exceed the monthly reduction in payroll Pengel was directed to effect. FOREST CITY ENTERPRISES, INC. 113 THE REMEDY Having found that Respondent has engaged in unfair labor practices, I shall recommend that it be required to cease and desist therefrom, and that it take certain affirmative action designed and found necessary to effectuate the policies of the Act. Although I have found that Respondent unlawfully dis- charged Beverly Uren on March 8, I do not recommend reinstatement for her because she was reinstated by Respond- ent on June 3. I shall recommend, however, that Respondent be required to make Uren whole for any loss of earnings she may have suffered by reason of the discrimination against her, by paying to her a sum of money equal to what she normally would have earned between March 8 and June 3, less her net earnings during that period, the same to be com- puted quarterly in accordance with the ]Board's formula set forth in F W. Woolworth Company, 90 NLRB 289 (1950), and shall bear interest at the rate of 6 percent per annum, computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). As a discriminatory discharge goes "to the very heart of the Act" (N.L.R.B. v. Entwistle Mfg. Co.) 120 F.2d 532, 536 (C.A. 4, 1941), it will be recommended that Respondent be ordered to cease and desist from infringing in any manner upon the rights guaranteed employees by Section 7 of the Act. On the basis of the foregoing findings of fact, conclusions of law, and the entire record in the case, and pursuant to Section 10(c) of the Act, I hereby issue the following recom- mended: ORDER20 (b) 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 or useful in determining compliance with the Order, or comput- ing the amount of backpay due hereunder. (c) Post at its Chapel Hill store copies of the notice at- tached marked "Appendix B."21 Copies of said notice, on forms provided by the Regional Director for Region 8, after being duly signed by its authorized representative, shall be posted by it immediately upon receipt thereof, and be main- tained 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 to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the aforesaid Regional Director in writing, within 20 days from the date of this Order, what steps it has taken to comply herewith. 21 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." APPENDIX B NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government Respondent, Forest City Enterprises, Inc., Akron, Ohio, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging or otherwise discriminating against em- ployees in regard to their hire, tenure of employment, or other terms or conditions of their employment to discourage mem- bership in Retail Clerks International Association, Local 698, AFL-CIO, or any other labor organization of its employees. (b) In an y other manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed to them by Section 7 of the Act. 2. Take the following affirmative action designed and found necessary to effectuate the policies of the Act: (a) Make whole Beverly Uren for any loss of earnings she may have suffered by reason of Respondent's unlawful dis- crimination against her, in the manner set forth in the section hereof entitled "The Remedy." 20 In the event no exceptions are filed as provided by Sec. 102 46 of the Rules and Regulations of the National Labor Board, the findings, conclu- sions, 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. After a full hearing at which all parties had the opportunity to present their evidence, it has been decided that we, Forest City Enterprises, Inc., violated the National Labor Relations Act, and we have been ordered by the National Labor Rela- tions Board to post this notice. We intend to carry out the Order of the Board and abide by the following: The Act give employees the following rights: To engage in self-organization To form, join, or assist any union To bargain collectively through representatives of their own choosing To engage in activities together for the purpose of collective bargaining or other mutual aid or protection To refrain from any such activities. WE WILL NOT in any manner interfere with our em- ployees in the exercise of those rights. All our employees are free to become or remain members of Retail Clerks Local 698, or not to become or remain a member of that or any other union. As the National Labor Relations Board has found that we violated the law by discharging Beverly Uren on March 8, 1974, WE WILL make up to her the pay she lost by reason thereof, with 6 percent interest. FOREST CITY ENTERPRISES, INC. 114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX A Summary of Exhibits R 2, R 3 , and R 4 , Showing Budget Sales for Fiscal 1974 and Actual Sales for January and February 1974 Dept. Name Budgeted Fiscal Actual Feb. Prev. Year % Variance Actual Jan. Prev. Year % Variance and No. 74 22/ # 1 Paint 17,600 19,194 16,502 16.3+ 18,459 15,903 16.1+ 2 Plumbing and Heating 23,800 21,751 23,219 6.3- 27,516 25,148 9.4+ 28 Electrical not shown 11,897 13,518 12.0- 13,412 15,691 14.5- 3 Tile 17,500 21,040 16,159 30.2+ 20,464 17,462 17.2+ 4 Tools 5,100 9,601 - 8,200 7 . 1+ 9,627 9 , 568 .6+ 9 Hardware 15,100 15,529 14,482 7.2+ 16,925 15,824 7.0+ 5 Seasonal 15,100 11,731 13,246 11.4- 9,618 6,368 51.0+ 6 Furniture 11,000 9,692 - 10,282 5 .7- 11,146 13, 620 18.2- 7 Housewares 10,000 9 , 058 9 , 750 7 . 1- 9,796 11 , 268 13.1- Total Hard Line 129,493 125,358 3.2+ 136 , 963 130 , 852 4.6+ 22/ Respondent introduced no evidence on budgeted sales for fiscal 1973.