W. Bell & Co., Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD W. Bell & Co., Inc. and Retail Store Employees Union, Local 400, affiliated with Retail Clerks International Association, AFL-CIO. Case 5-CA- 8308-2 September 21, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On May 4, 1977, Administrative Law Judge Thomas A. Ricci issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and a motion to reopen the record, and the General Counsel filed an answering brief and an opposition to the motion. 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, as modified herein. 2 THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(l) and (3) of the Act, we shall order that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that Respondent discharged Frederick Diven and Jeffrey Wagner in violation of Section 8(a)(3) of the Act. We shall therefore order that Respondent offer Diven and Wagner immediate and full reinstatement to their former positions or, if those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges and make them whole for any loss of pay which they may have suffered as a result of the discrimination practiced against them. The backpay provided herein shall be computed in accordance with the Board's formula set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest thereon in accordance with Isis Plumbing & Heating Co., 138 NLRB 716 (1962), and Florida Steel Corporation.3 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor 232 NLRB No. 51 Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge, as modified below, and hereby orders that the Respon- dent, W. Bell & Co., Inc., Lanham, Maryland, shall take the action set forth in the said recommended Order, as herein modified: I. Substitute the following for paragraph 2(b): "(b) Make whole Diven and Wagner for any loss of pay or benefits they may have suffered by reason of the Respondent's discrimination against them by payment to them of a sum of money equal to the amount they normally would have earned as wages from the date of their termination to the date of the Respondent's offer of reinstatement, with interest, in the manner set forth in the section herein entitled 'The Remedy.' " 2. Substitute the attached notice for that of the Administrative Law Judge. I 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. Respondent has also excepted to the Administrative Law Judge's finding that out of approximately 100 people on Respondent's payroll all except 3 continued to work until December 23. 1976. While the record reveals that Respondent's work force contained approximately 100 employees, it does not indicate how many employees were terminated during this period. We find, however, that this misstatement of the record does not affect our findings herein. 2 Respondent's motion to reopen the record is hereby denied as it does not allege that the evidence it now seeks to introduce was unavailable at the time of the original hearing and, in any event, such evidence is not material to the issues in this proceeding. 3 In accordance with our decision in Florida Steel Corporation, 231 NLRB 651 (1977), we shall apply the current 7-percent rate for periods prior to August 25. 1977, in which the "adjusted prime interest rate" as used by the Internal Revenue Service in calculating interest on tax payments was at least 7 percent. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board having found after a hearing that we violated the Federal law by discharging employees because they engaged in union activities, and by committing other illegal coercive acts, has ordered us to post this notice. We intend to abide by the following: WE WILL NOT discourage membership in Retail Store Employers Union, Local 400, affiliated with Retail Clerks International Association, AFL- CIO, or in any other labor organization of our employees, by discharging any of our employees because of their membership in, support of, or 256 W. BELL & CO., INC. activities in favor of the above-named or any other labor organization. WE WILL NOT question our employees concern- ing their union activities. WE WILL NOT create the impression of surveil- lance. WE WILL NOT threaten to discharge or replace our employees in retaliation for their union activities. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form, join, or assist Retail Store Employees Union, Local 400, affiliated with Retail Clerks Interna- tional Association, AFL-CIO, or any other labor organization, or to engage in any other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. WE WILL offer Frederick Diven and Jeffrey Wagner immediate and full reinstatement to their former positions or, if such positions no longer exist, to substantially equivalent positions. WE WILL pay Frederick Diven and Jeffrey Wagner for any loss of pay or benefits they may have suffered as a result of our discrimination against them, plus interest at 7 percent per annum. W. BELL & Co., INC. DECISION STATEMENT OF THE CASE THOMAS A. RicCl, Administrative Law Judge: A hearing in this proceeding was held at Washington, D.C., on March 8, 1977, on complaint of the General Counsel against W. Bell & Co., Inc., here called the Respondent or the Company. The complaint issued on February 11, 1977, on a charge filed on December 27, 1976, by Retail Store Employees Union, Local 400, affiliated with Retail Clerks International Association, AFL-CIO, here called Local 400 or the Union. The issue presented is whether the Respondent discharged two employees in violation of Section 8(a)(3) of the National Labor Relations Act, as amended. Briefs were filed by the General Counsel and the Respondent. Upon the entire record and from my observation of the witnesses, I make the following: I FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT W. Bell & Co., Inc., a District of Columbia corpora- tion, is engaged in the operation of discount catalogue A posthearing motion by the General Counsel, unopposed, to correct typographical errors in the transcript is hereby granted. department stores throughout the United States. Its only location involved in this case is at Lanham, Maryland. During the past 12 months, a representative period, its gross revenues exceeded $500,000. During the same period, Respondent purchased and received in interstate com- merce products and supplies valued in excess of $50,000. I find that the Respondent is engaged in commerce within the meaning of the Act. 11. THE LABOR ORGANIZATION INVOLVED I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A Brief Picture This one store of the Respondent started hiring employ- ees on September 21, 1976, and opened for business on October 18. By November 30 there were about 100 people on the payroll, and they all - except for 3 - continued to work until the last business day before Christmas, Decem- ber 23. Included were receiving and stock clerks in the warehouse, and salespersons of all kinds. The big sales business rush was expected for the period Thanksgiving Day to Christmas, when this company, at all of its many locations, does about 30 percent of its total annual volume of business. On November 30 three employees - Frederick Diven. Jeffry Wagner, and Janet Webb - started a union movement, openly soliciting employee signatures inside the warehouse to a petition in favor of Local 400, the Charging Party herein. That same afternoon William Petzold, the assistant manager of the entire operation, after learning of the union activities of the three, discharged Webb and threatened Diven with discharge if his work were not "perfect." Within the week, on December 7, James Hurd, the manager, fired Diven and Wagner. The complaint alleges Diven and Wagner were discharged because of their union activities in violation of the statute. Webb's name does not appear either in the charge or in the complaint, and the reason for its absence is unexplained. For this reason there can be, and there is, no finding here that the Company violated the statute when it discharged her. But what facts are proved by the record evidence remain the facts. Denying illegal motive, the Respondent advances an affirmative defense of discharge for cause as to Diven and Wagner. There are questions of credibility, pitting primari- ly Diven's testimony against that of Petzold and Hurd. The Testimony; Findings It has been said that sometimes in Board proceedings the oral testimony of important witnesses carries its own death wound, which deprives it of all credibility. This is such a case. If this record contained nothing more than the testimony of Petzold and Hurd, assertedly supported by that of Jeff Sanders, in charge of the employees in the 257 DECISIONS OF NATIONAL LABOR RELATIONS BOARD warehouse, it would prove quite convincingly that both Diven and Wagner were dismissed in retaliation for their prounion actions. Shortly before noon on November 30 a number of employees in the warehouse, including Diven, Wagner, and Webb, talked generally about joining a union, decided it should be Local 400, and had Webb telephone the union office from the warehouse desk. As advised, they prepared a written petition in favor of joining Local 400, and started talking to one employee after another soliciting signatures. A driver from another of the Respondent's locations arrived - Leonard (Lenny) Patrick - and they asked him to sign. He refused. Sanders stood 5 feet away while the solicitation took place. The employees also asked Jerry Schaeffer if he would join. Schaeffer who is above Sanders in the managerial line said he wanted no part of it. Within minutes Diven was called to Petzold's office, where, according to Diven's testimony, the assistant manager asked him "how things were in the warehouse . . . and then he asked me what it was he heard about me asking the truckdriver about a union." When Diven pretended to know nothing, Petzold told him, still according to the employees, "if there were any problems in the warehouse to either see Jerry Schaeffer or himself." Shortly thereafter Petzold discharged Webb. A little later Faye Eckerman, the manager's secretary, approached Diven and Wagner and said "she heard we were trying to start a Union." Diven then told her the employees had dropped the idea because Webb had been fired, but that "they shouldn't have fired Janet Webb for being involved with the Union." At 5 o'clock Petzold called Diven into his office again; this time he brought in Bernie Smith, the showroom floor manager, to be a witness to what was about to happen. He then told Diven his work was not up to par, "wasn't perfect," and that "if it wasn't perfect I would be replaced." Petzold, as the first witness for the defense, denied ever mentioning the Union in his talks with Diven that day. He also insisted Sanders, who told him what was going on in the warehouse that morning, did not tell him there was any talk about a union. He quoted Sanders as telling him "he wasn't sure what they were doing." Affirmatively, Petzold's testimony is as follows: He noticed, at 1 I or 11:30 a.m., that customer orders were slow coming out of the warehouse; where it should require only 2 or 3 minutes, it was taking 10 to 15 minutes. He called for Sanders to come out and to explain. Sanders came and told him "there was something not right back in the warehouse ... that employees were congregating .... They were not stocking, not pulling orders, no nothing . . . he said about four people . . . they were back there talking about something. He didn't know what." Petzold thereupon asked Sanders to send Diven and Webb out to him one at a time. Petzold's testimony about his talk with Diven was: Within a few minutes Fred Diven came out and we went back in the office. We did close the door. I asked him if there was any problem in the warehouse. And he said no. But I got a real gut feeling from the guy, he said hey, things are fine. But I didn't believe him. He just looked uneasy like something was bothering him back there so I said come on, Fred, tell me what the problem is back there. And he says, well, there's an awful lot of stock back there. There's not enough places to put it. We have to put it in excess areas, in other words, if you have 50 pieces of an item on a particular stock sequence location, you can accommodate 15 pieces, then you have 35 you have to put in a separate location. We had locations set aside, and as the excess stock would accumulate we would store this in the given location and note that fact. And it disturbed him that so much merchandise was coming in. And I explained to him that that was to be expected, at the Christmas season. It wasn't a year round occurrence, something we expected, we had planned for. We had control and within a couple of weeks time the excess stock would be selling down back to a normal sized stock inventory. * * * He seemed satisfied with that answer. Then he made another comment that - he said something else about, that he didn't feel the fellows back there were contributing as much as possible. He didn't feel his fellow employees were doing their share of the work. And I said, okay. I'll discuss that, see if it's true. Anything else. And he said, no, and I said we're all back to normal. And he said fine. And that was the sum total of the discussion. These paragraphs from Petzold's testimony are of critical importance in evaluating his total story, as will appear below. For the moment, there is the fact he denied ever knowing, during this first talk with Diven, anything about any union activity. It is also important to note that, despite his professed concern with a slowup in the warehouse, he said nothing to Diven about neglecting his duties. We come to the testimony of Sanders, called by the Respondent to corroborate that of the manager. He said that what he first saw was Diven, Wagner, and Webb "in a corner having a meeting," and that he went to Petzold and told him "that a meeting was going on among those three [emphasis supplied] in the warehouse." This was Sanders' first talk about this matter with the manager that day. Petzold's reaction, still according to Sanders, was: "He instructed me to go back to the warehouse, go about my business, to supervise, and to just observe what was going on." Sanders did as he was told. What did he see now? "They [the three] started pulling one full-time employee at a time back to where they were discussing something with them one at a time. They pulled each full-time employee. At that time I went to Mr. Petzold, informed him of what was going on, again." "Q. What was his response? A. He said to send them back to him one at a time, to the office. I went back to the warehouse, I sent Mr. Diven first." Sanders also said that while "observing" the three as instructed, "I guess fifteen minutes or so as the employees came over," he also saw Diven talking to the driver, Lenny (Leonard Patrick), and that while the three talked to one 258 W. BELL & CO., INC. employee after another "there was a piece of paper that they were showing them." This is not conflicting testimony between opposing witnesses; this is the supervisor, a Respondent witness, making a liar out of his own superior. For which of its witnesses does the Respondent vouch? Petzold said he spoke to Sanders only once before confronting Diven, and that all he knew, or cared about, was the slowdown in customer deliveries. But he did not tell the supervisor to do anything about that; in fact instead he ordered him to keep watching and to report back the nature of the activity. Moreover, Sanders said he reported twice, not once, before sending Diven to the office, and that Petzold's expressed interest was to have the employees "observed" to find out exactly what they were up to. It follows not only that Petzold cannot be credited, but also that Sanders did as he was told, observed and listened, and learned it was a union that was in the air, and even that he reported it to Petzold. Without question, Diven must be credited against Petzold. I find that the manager did ask him, during his first conversation with the man that day, what was all this about a union. And it was immediately following this illegal, and necessarily coercive, interrogation of the first revealed union activist that Janet Webb was sent to the office by Sanders and fired on the spot. There is more to this matter of firing Webb. Petzold admitted that, upon reporting the results of his observa- tions, Sanders also told him the three had talked to Lenny, the driver. In the brief period between his first talk with Diven and when Webb came to the office, Petzold went into the warehouse to question Lenny. His testimony is he asked Lenny had the employees talked to him, and what about, and that the driver answered they had asked him if he "wanted to join a union." I find more credible Lenny's version that Petzold asked him "if Fred [Diven ] had asked me to sign anything." It was immediately after this that Petzold discharged Webb. At or about 5 o'clock that evening, Petzold called Diven to his office again. His testimony about that interview is as much repetitive argument, generalization, justification, and conclusionary contentions as it is his version of what was said. In fact it is not understandable whether he meant to admit or deny having told Diven he was going to be replaced. From what I can gather, his story is he simply called the man to tell him how terrible and absolutely unsatisfactory his work performance had been for weeks and weeks. Nothing was shown to have happened between his almost solicitous noon talk with Diven and the 5 o'clock tirade Petzold said he loosed at the man. There is not even a pretense excuse advanced for having called the man in for this purported purpose at that time. And why the manager should have called another supervisor in to witness the whole thing, which Petzold admitted he did, casts the greatest doubt of all upon his entire veracity. I never heard of a top manager needing the protection of a friendly witness when telling an employee as awful as Petzold described Diven that the man had to do better at work. His performance had deteriorated greatly over the previous 4 weeks .... He had just never worked out .... the stock area was a mess. You couldn't walk down the aisles in the stock area to pull a customer's order. .... It got to be a daily problem. .... He never really was able to keep that area clean and keep the stock moving. He'd leave at night, and you couldn't even walk back there. The desk, receiving table, everything was just trash, empty boxes, everything... from what I saw it was just a lack of will power on his part. He just didn't want to keep it clean .... This is but a sampling of Petzold's rambling testimony. He was describing Diven's deficiencies in ajob as receiving clerk which the man had left on November 26. The more terrible Petzold painted the picture of Diven's past performance, the more witnesses he called to agree with him about the man's longstanding absolute incompe- tence, the more revealing becomes the contrast between his asserted diatribe at 5 o'clock and his amicable, understand.- ing, and most tolerant explanation to the man at noon of why the problems in the warehouse were not Diven's fault at all. In the middle of the day he tells the employee everything will be fine, the rush season is only temporary, "we're all back to normal." In the evening the man is worthless, and always was. What caused the change of opinion? In the interval Petzold had himself checked with Lenny, the driver, and the office secretary had checked with both Diven and Wagner as to what the men were doing. I do not believe any of Petzold's testimony where it conflicts with that of Diven. And I do not believe his characterization of Diven's work performance as unsatis- factory and unacceptable. After several weeks of initial work building shelves and as a stock clerk, he promoted Diven to the better job of receiving clerk. After a month Diven requested to be relieved of that job and was made stock clerk regularly. Petzold obliged him. This under- standing cooperation only 10 days earlier stands in contrast to the story at the hearing of the man's utter uselessness while a receiving clerk. I credit instead Diven's testimony that he was told a number of times, by both Petzold and Manager Hurd, that his work was good and quite satisfactory. The Company's peak season was starting at exactly that time and it needed all the employees it had. Diven was doing much overtime work even then. At noon the manager, having heard three employees - including Diven - were starting a union movement, decided some coercive questioning in the privacy of his office would serve to inhibit Diven. Diven is much more articulate than Wagner, and therefore was likely to be a more successful union protagonist. Petzold therefore just questioned him, and let it go at that. Webb he did not need for such a seasonable rush of heavy work; he fired her. Thinking it over during the afternoon, and learning, as he said, more about the solicitation being carried on in the warehouse, he decided more was necessary to really put a stop to it. He therefore told Diven he was in danger of being replaced. Were Diven really as bad as the company witnesses would have it later at the hearing, why did Petzold not get rid of him then and there? Because he needed the man and because his work was to the Company's advantage. Whatever his technique, it worked, for all union activities ceased that day and have never been resumed. 259 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I find that by questioning Diven about his union activities, by showing clearly his union activities were being watched, and by telling him he would be replaced, Petzold, for the Respondent, violated Section 8(aXI) of the Act. At noon on December 7, Webb telephoned in to the warehouse and spoke to Diven. She asked would he make an effort to obtain statements from the employees saying they believed she had been discharged because of her union activities, and he said he would. Diven then circulated among a number of employees, asking them, and ,all agreed to do it. At or about I o'clock he went to speak lo Manager Hurd, who had been away from the store (luring the November 30 events. He told Hurd that Webb wanted her job back and asked if Hurd knew what had happened "with the Union and Webb." Hurd said he knew only what Petzold had told him. Diven then said "there was a movement in the warehouse to get Janet back because people in the warehouse felt that she was fired because she had engaged in "union activities." To this Hurd made no comment. At 5 o'clock that evening Hurd called both Diven and Wagner to his office and discharged them, because, as Diven recalled it, "we took an unauthorized break in the morning . . . at lunchtime we took ten minutes on the clock." I-urd testified that on "December 4th, 5th," when he returned to the store, Petzold told him what had happened. "Just the fact that on the date that Janet Webb was terminated there was a serious problem of a group of people in the warehouse, numbering four or five, not doing their work, and drifting off to a far corner and having private conversations and what have you and the end results of that was that the van driver, Lenny, said that they asked him if he wanted to join the Union." Before coming to his version of the discharge conversa- tion, as the last witness for the Respondent, Hurd, like Petzold before him, spoke at length about both Diven's and Wagner's utter undesirability as employees. He started by saying that on December 6 the two men complained to him about their work being too onerous because the other employees in the warehouse were not doing their share, did not even like them. Hurd continued that he told them to just do the job that was assigned them and he would look into the matter. He then spoke to four or five of the other employees and they said Diven and Wagner were "a disruptive force," "not working," "doing whatever they could to prevent them from doing their job." Hurd added he had received similar complaints from other workmen concerning this problem "on numerous occasions." Coming to December 7, Hurd testified that at or about I p.m. he noticed Diven and Wagner idling in the lobby, although they had punched in after lunch. He said he told them they should not idle after punching in, but he also added, without explanation, that he told them to take their timecards to the supervisor, Schaeffer, and to "have him correct it and initial it and return it." In a matter of minutes, still according to Hurd, Mace - apparently a supervisor also - told him that early that morning the two men had been loitering in the lobby after punching in and had to be told to go to work. And finally, Hurd went on to say that -- still at about that time - he called Schaeffer and "had a discussion with him" about Diven and Wagner. Schaeffer told him "he was sick and tired of catching heat from those two not doing their jobs, and not staying in their work areas. And he could not control them or keep them in their work areas . . . his recommendation at that time was that he could do a better job and the warehouse could function better without the two of them." Other than generalizing about the continuing incompe- tence of Diven and Wagner, Schaeffer, who testified immediately before Hurd, said nothing about any com- plaints to him, or about discharge recommendations, on December 7. In any event, Hurd added he decided with finality, immediately after talking to Schaeffer, to discharge Diven and Wagner at the end of the day. Be that as it may, it was after this, according to Hurd, that Diven came to tell him about the petition being circulated to obtain Webb's job on the ground she had been dismissed "because of her union activity." At 6 o'clock that night he fired the two men. As to his reason, his testimony, too, is not clear on whether he was talking about what he then told the men, or about how he felt, or what his mental operation may have been. At the hearing he spoke of "violation of company policy, one reason being on the time clock and not reporting to work, the other reason being ignoring instructions from the supervisors, and being a disruptive force in the warehouse." On this total record, I find Hurd's contention that he discharged these men for the reasons he stated unconvinc- ing. Hurd knew, the day before at least, that Diven and Wagner were the principal activists in the union movement only a week earlier. If the men really were as undesirable as he portrayed them, he long ago knew that also, for Petzold is his first assistant and the boss would surely know of such terrible conditions in the warehouse as Petzold described. The timing of the discharge, coming only 2 or 3 hours after he learned that Diven was once again furthering the cause of the Union by participating in the effort to reinstate Webb, carries a strong inference of illegal motivation. Hurd avoided this damaging implication by saying he made his final decision before Diven came to him in the afternoon. We come once again to unacceptable inconsistencies in testimony. In the effort to disparage the man more and more, Hurd said that after having talked to Diven, but still during the afternoon, he was in the warehouse "anywhere from five to ten times . . . on a constant basis. Jeff and Fred were together and in different locations of the warehouse trying to, intentionally evading anyone else back there." Would any employer, having already decided to get rid of incompetents, and then seeing them repeatedly continuing their insufferable offenses, just let them sit and idle while he continued to pay them? But what is most revealing of all is the further fact that that afternoon, still after his talk with the manager, Diven asked several times for permission to leave early because he had some personal matters to look after. He was each time refused permission. Asked why, if he had already decided to send Diven away for good, he refused permission - and Hurd admitted Supervisor Schaeffer came to ask could Diven go home - 260 W. BELL & CO., INC. all Hurd could say was the man did not have "a valid reason." I do not credit this man. As to the lunch hour incident, Diven and Wagner did hang around 5 or 10 minutes after punching in before starting to work. They said they did this because they had been told that under Maryland law lunch had to be 30 minutes long, that they would be docked so much anyway, and that they had inadvertently been gone only 20 and had so marked their timecards. Hurd denied any talk of Maryland law, but he did tell them to have the cards corrected. It follows he understood why they were there and knew there was nothing seriously amiss in their conduct. The coffeebreak early in the morning was a common and accepted practice. There is uncontradicted testimony that many, many times, after punching in but before the store opened to the public, the men got donuts next door and sat eating them with some coffee with their supervisors, including Hurd and Petzold themselves. Repeatedly the management witnesses referred to Diven's practice often of arriving late in the morning and taking as much as 2 hours for lunch. The men were paid strictly by the clock. There was no fixed work schedule enforced by the Company. The men decided themselves, according to the work needs of the moment, how much overtime work to do. Diven often did over 80 hours a week, sometimes working as much as 18 hours in a single day. His testimony stands uncontradicted: "they just kind of expected it [overtime] out of you." "I never worked within my schedule." "Q. How do you explain this taking two hours for lunch? . . . A. I would, you know, work hard, I was a hard worker. I worked almost 18 hours a day." I have no doubt that what really happened here is that after realizing Diven and Wagner, despite the warnings of a week earlier. and despite the promise of imminent replacement, were determined to continue their union activities in one form or another, Hurd thought it over and decided, after, not before Diven's office call, to put a stop to the union movement for good and therefore discharged both men. I find that by discharging Diven and Wagner the Respondent violated Section 8(a)(3) of the Act. IV. TIHE EFFFCT OF THE UNFAIR LABOR PRACTICES UPON (OMMERCE The activities of the Respondent set out in section III, above, occurring in connection with the operations of Respondent 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. CONCLUSIONS OF LAW 1. By discharging Frederick Diven and Jeffrey Wagner the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. " 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. he adopted by the Board and become 2. By the foregoing conduct, by interrogating employ- ees concerning their union activities, by creating the impression of surveillance over them, and by threatening to discharge employees for such activities, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(aX 1) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following: ORDER 2 The Respondent, W. Bell & Co., Inc., Lanham, Mary- land, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in Retail Store Employees Union, Local 400, affiliated with Retail Clerks Internation- al Association, AFL-CIO, or any other labor organization of its employees, by discharging employees or otherwise discriminating against them in their employment condi- tions because of their membership in or activities on behalf of the above-named Union or any other labor organiza- tion. (b) Interrogating employees concerning their union activities, creating the impression of surveillance over them, or threatening to discharge employees because of such activities. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights to self- organization, to form, join, or assist the above-named labor organization, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer Frederick Diven and Jeffrey Wagner immediate and full reinstatement to their former positions or, if such positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges. (b) Make Diven and Wagner whole for any loss of pay or any benefits they may have suffered by reason of the Respondent's discrimination against them. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its place of business in Lanham, Maryland, copies of the attached notice marked "Appendix." 3 Copies of said notice, on forms provided by the Regional Director for Region 5, after being duly signed by its representatives, its findings. conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 3 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 ( ontinued) 261 DECISIONS OF NATIONAL LABOR RELATIONS BOARD shall be posted by the Respondent immediately upon receipt thereof, and be 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 it to insure that said 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." notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 5, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 262