Rich's of Plymouth, Inc.

RICH'S OF PLYMOUTH, INC. Rich's of Plymouth, Inc. and Retail Clerks Union Local 224, Retail Clerks International Association, AFL-CIO. Cases I-CA-12064 and 1-RC-14492 September 29, 1977 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On July 1, 1977, Administrative Law Judge Michael O. Miller issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief, and the General Counsel filed a brief in support of the Administrative Law Judge's Decision. 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, findings, and conclusions of the Administrative Law Judge, to modify his remedy,1 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, Rich's of Plymouth, Inc., Plymouth, Massachusetts, its offi- cers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. [Direction of Second Election and Excelsior foot- note omitted from publication.] i 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. DECISION STATEMENT OF THE CASE MICHAEL O. MILLER, Administrative Law Judge: This matter was heard on March 16 and 17, 1977, in Boston, Massachusetts, based upon unfair labor practice charges filed on July 29 and amended on August 17 and September 1, and a complaint issued on September 30, 1976.' The complaint alleges that Rich's of Plymouth, Inc., herein Respondent, violated Section 8(aXI) and (3) of the National Labor Relations Act, as amended, herein the Act. Respondent's answer denied the substantive allegations of the complaint. Consolidated for hearing with the unfair labor practice allegations were objections to the election filed by Retail Clerks Union Local 224, Retail Clerks International Association, AFL-CIO, herein the Union, pursuant to a supplemental decision issued by the Regional Director on September 3. The objections parallel certain unfair labor practice allegations. All parties were afforded full opportunity to appear, examine and cross-examine witnesses, and argue orally. General Counsel and Respondent filed briefs which have been carefully considered. Based upon the entire record, including my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT 1. RESPONDENT'S BUSINESS AND THE UNION'S LABOR ORGANIZATION STATUS-PRELIMINARY CONCLUSIONS OF LAW Respondent is a Massachusetts corporation engaged in the operation of a retail store in Plymouth, Massachusetts. The complaint alleges, Respondent admits, and I find and conclude that Respondent satisfies the Board's standards for the assertion of jurisdiction over retail enterprises and is an employer, engaged in commerce and in operations affecting commerce, within the meaning of Section 2(2), (6), and (7) of the Act. The complaint alleges, Respondent admits, and I find and conclude that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background- The Union Campaign The union campaign began in mid-April, and the first organizational meeting, announced by a flyer, was called for April 26. The Union filed a representation petition on May 14, and, following a hearing, and Decision and Direction of Election, an election was conducted on July 22. Respondent's employees, including those employed in leased departments, by a vote of 41 to 22 (with 7 ballots challenged) rejected union representation. The Union timely filed objections to conduct affecting the results of the election. B. Solicitation of Grievances and Promises of Benefit In response to the organizational activity, management also held meetings with the employees of each shift on April 26. Gerald Costello, personnel and operations manager for the eight-store Rich's chain, spoke. Costello had frequently met with individual employees or in much smaller groups. He had seldom conducted meetings with the entire employee complement of a store. Costello discussed the Union's campaign and the effect of signing I All dates hereinafter are 1976 unless otherwise specified. 232 NLRB No. 98 621 DECISIONS OF NATIONAL LABOR RELATIONS BOARD authorization cards. In the course of the meeting, Costello asked, as he testified he generally did when he met with employees, whether the employees had any problems they wished to discuss. Two subjects were raised, health insurance and a grievance committee.2 Costello said that management would look into both subjects. He asked how many would be interested in health insurance and told the employees that if such a benefit were to be implemented it would be chainwide and would involve Rich's and the employees sharing the costs. Subsequently, Costello asked an employee, Aida Periera, for her reaction to the insurance proposal. She told him that she still wanted union representation. About May 10, according to the uncontradicted testimony of employee Susan Nelson, Costello and Assistant Store Manager Ronald Croteau held another meeting with a group of 15 or 20 night-shift employees. Costello told them that the "day" employees "had been asking for an insurance policy and a grievance committee." He asked for their reactions and they responded affirmatively. Costello told them that he would set up a voting procedure for the grievance committee and would look into the insurance. Shortly thereafter, management had a ballot box con- structed.and set up an election for a grievance committee. Management also designated the number of employees on each shift who would serve on that committee. After about 2 days, the ballot box was removed, apparently on the advice of counsel. The ballots were never tabulated and no grievance committee was elected or implemented. Similarly, on the advice of counsel, there was no further mention of health insurance. Costello instructed his managers to tell employees, if they asked about either the health insurance or the grievance committee, that Respondent "had been advised by counsel not to go into this at this point." The complaint alleged that, by the foregoing conduct, Respondent solicited grievances, impliedly promised bene- fits, and actually granted benefits to its employees in order to discourage unionization. By asking the employees whether they had any problems they wished to discuss, I find, Costello solicited their grievances. The manner in which he did so, formal meetings with the employees of an entire shift as distinguished from the small and informal meetings he had previously held, indicates a change in Respondent's approach toward employee grievances. This changed approach, coupled with the discussion of the organizational campaign during those meetings, the subse- quent solicitation of additional employee reaction, the abortive committee election, and the intimation upon cancellation of that election that further consideration could not be given to either suggestion as long as the Union was in the picture, clearly conveyed to the employees the message that Respondent, in its effort to defeat the Union, was now willing to look much more favorably upon any request or suggestion employees might make. By this conduct, I find, Respondent impliedly promised benefits in an attempt to undermine support for the Union, in 2 Costello's testimony, somewhat inconsistent between direct and cross- examination, indicated that both subjects were raised by employees. 3 Wage increases were granted in August 1972 and May 1974 through January 1976 because of mandated increases in state and Federal minimum violation of Section 8(aXl) of the Act. The Stride Rite Corporation, 228 NLRB 224 (1977). See also Campbell Soup Company, 225 NLRB 222 (1976), and cases cited therein. As the grievance committee election never proceeded to completion, and no committee was elected, named, or permitted to function, I find that there was no actual grant of benefits in that regard. C. The Wage Increases In early May, Respondent granted an across-the-board wage increase of 5 cents per hour in all of its stores, including Plymouth. The granting of this raise occurred within 2 weeks after Respondent's acquisition of knowl- edge of the Union's campaign. The Board, in Newport Division of Wintex Knitting Mills, Inc., 216 NLRB 1058 (1975), concisely summarized the state of the law regarding the announcement or grant of wage increases during the pendency of an election campaign: It is well established that the announcement of a wage increase during the pendency of a representation petition for the purpose of stifling an organizational campaign constitutes unlawful interference and coer- cion ... An employer's legal duty in deciding whether to grant benefits while a representation petition is pending is to determine that question precisely as if a union were not in the picture. An employer's granting a wage increase during a union campaign "raises a strong presumption" of illegality. In the absence of evidence demonstrating that the timing of the announcement of changes in benefits was governed by factors other than the pendency of the election, the Board will regard interference with employee freedom of choice as the motivating factor. The burden of establishing a justifi- able motive remains with the Employer. [Citations omitted.] Respondent, to rebut the "strong presumption of illegali- ty," points to an alleged practice of granting periodic wage increases, the modest amount of the raise, the fact that it was given throughout all eight stores, and was not publicized. Respondent introduced a compilation of wage increases granted in its stores from April 1972 through May 1976, in support of its contention that it had a policy of periodic raises, granted at 6-month intervals in the spring and fall. Eliminating from that compilation those raises which, according to Costello's testimony, were given for reasons not connected with its periodic raise policy,3 the exhibit reveals that increases were granted somewhat less regularly than Respondent contended. Thus, in the various stores shown thereon, it appeared that raises were granted at intervals varying from I to 12 months. The majority, however, were given at 6-month intervals. In the Plymouth store, raises had followed a 6-month pattern, having been wages, and in January 1973 to meet local competition. From May 1974 through January 1976, no periodic raises were given because of the size and frequency of increases in minimum wages. 622 RICH'S OF PLYMOUTH, INC. given April and October 1972 and 1973, and again in April 1974. Further, the exhibit indicates that the majority of raises were given in the months of February, March, April, September, and October. Costello testified that due to increases in the minimum wages required in May 1974, January 1975, and January 1976, the policy of 6-month reviews were temporarily stopped during that period. In January, he stated, Respondent's president, its controller, and he "decided to go back on normal policy of reviewing the employees every six months." May was chosen because it was in the spring, consistent with the alleged practice of step raises in the spring and fall. No corroborative testimony or documentation of this decision was adduced. Based upon the foregoing, I am constrained to conclude that Respondent has failed to sustain its burden of proving that the wage increase was not motivated by antiunion considerations. Respondent's history of wage increases revealed no consistent pattern to which the May raise could be connected; indeed, no periodic raises had been given in the month of May in the past and the instant raise was 5, rather than 6, months after the preceding raise. Costello's testimony that the raise was planned in January was both unconvincing and uncorroborated, though corroboration would have been available to Respondent if it existed. Cf. Mallory Controls Company, A Division of P. R. Mallory Co., Inc., 214 NLRB 616 (1974), wherein the employer supported its contention that the raise was preplanned with memoranda predating knowledge of the union activity. It is true, as Respondent argues, that the raise was given throughout the chain. However, the chain was neither so large, nor the raise so great, as to negate the presumption of illegality created by the timing of that raise, particularly in conjunction with Respondent's other anti- union conduct. Cf. Freighimaster, a Division of Halliburton Services, 186 NLRB 3, 11-12 (1970), wherein raises were given to 5,600 employees worldwide, although the unit involved but 400 employees in one location. Accordingly, I find that by granting a wage increase in early May, in order to discourage union activity, Respondent has violated Section 8(a)(1) of the Act. D. Creating the Impression of Surveillance In late April, employee Aida Periera was observed by Steven Rice, then the store manager, when she gave a union authorization card to another employee. Rice told her, "Aida, I know that you are responsible for this." Periera, who had, in fact, been the Union's initial contact in the store, protested that she had only been giving the other employee her telephone number, which she had written on the card in lieu of any other piece of paper. Periera's testimony stands uncontradicted. Respondent contended that Periera and other employees had been open about their union activities, thus negating the coercive effect of implied surveillance. The record does not, however, reveal that Periera had openly proclaimed her union advocacy as early as late April. 4 It also contended that Rice's remark was ambiguous and isolated. In light of the other conduct found unlawful herein, Rice's A union flyer. announcing a meeting and bearing the signatures of the organizing committee, did not appear until mid-June. statement can hardly be deemed isolated. And, while his statement was less than explicit, in view of the facts that a union authorization card was involved in the transaction, and that the major "thing" which was going on at the time was the organizational campaign, I find it reasonably clear that Rice was referring to that campaign. Rice's remark, I find, was of such a character as to create an impression of surveillance of union activities, and thus interfered with employee rights to engage in such activities. Accordingly, by this conduct, Respondent has violated Section 8(aX ) of the Act. Commerce Concrete Company, Inc., 197 NLRB 658 (1972). E. Threats of Loss of Benefits Respondent held a final preelection meeting with its employees on July 20. Among those present was Bennett Rich, Respondent's president. He spoke and, together with the other management representatives present, answered the employees' questions. Employee Doreen Santos testi- fied that he told them, in haec verba, "If the union won we would lose our privileges and benefits." She also testified that he told them that the Union would cause dissension, that they would have to go through a shop steward to get a day off and that, if they had any problems, they would not be able to go to the managers. Periera, in her direct testimony, essentially corroborated Santos, and added, when called on rebuttal, that Rich said that they would lose their sick days, anniversaries, and birthdays, because they would not be in the union contract. She acknowledged that Rich stated that all benefits would be subject to negotia- tion. Respondent's witnesses, Costello, Cote, the store manag- er, and Croteau, then assistant store manager, all denied that Rich threatened loss of benefits and privileges if the Union got in. Costello testified that, in response to a question about existing benefits, Rich stated that all benefits would be negotiated. Similarly, Rich's remarks about the functions of shop stewards came in response to employee questions. Croteau recalled Rich stating that he did not feel that it was necessary for employees to have someone else to fight their battles with the employer. Costello recalled Rich stating that if there were serious problems in the store, in regard to such matters as days off or vacations, they would have to go through the shop steward, who would act as a buffer between management and the employees. I credit the collective recollections of Costello, Cote, and Croteau as I was unfavorably impressed by the employees' testimony in regard to the foregoing. Santos appeared to be selective in the facts which she could or would recall and her testimony about the exact words used by Rich lacked probability. Periera's recollections were vague, even after her recollection was refreshed by both leading questions and reference to her affidavit. She testified to the specific threats of benefits losses only when recalled as a rebuttal witness, although she had been asked about Rich's alleged threats when questioned during General Counsel's case-in- chief. I was more favorably impressed by the testimony, as 623 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to this meeting, of Costello, Cote, and Croteau. Costello was particularly firm and positive in his denial that Rich threatened that benefits would be lost and he appeared to have a good recollection of what occurred in that meeting. Cote also impressed me as a generally credible witness; he candidly admitted his opposition to the organization of his employees and his knowledge of employee union activity. Croteau's demeanor similarly revealed no basis for discre- diting his testimony and I note that he was no longer in Respondent's employ at the time he gave his testimony. Accordingly, I find that Rich did not make the threats attributed to him in the complaint, either expressly or impliedly, and shall recommend that this allegation be dismissed. See Computer Peripherals, Inc., 215 NLRB 293 (1974); Stumpf Motor Company, Inc., 208 NLRB 431 (1974). F. The Refusal To Rehire Jeanne Schembri Jeanne Schembri was employed as a salesclerk in the jewelry department in Respondent's Plymouth store from August 1975 until her resignation on July 9.5 General Counsel contends that Respondent refused to rehire her because of her union activity, in violation of Section 8(a)3) of the Act. Schembri testified that she learned of the union activity around May I from a fellow employee. She asked Assistant Store Manager Croteau what he knew about the Union and why the jewelry department employees had received no literature. He told her that it was probably because the jewelry department was a concession. Schembri told him that she thought it would be good if the Union could get the jewelry department employees a 15-minute break as they were the only employees in the store not to receive one. Croteau stated his opinion that Rich's employees did not need a union. Croteau did not deny this conversation. On May 7, Dottie McDonald, jewelry concession supervisor, took Schembri aside and told her that the employees in the jewelry department would thereafter be getting a 15-minute break, a 30-minute lunch period, neither of which they had been receiving before, and a 5- cent-per-hour raise. McDonald did not testify and no evidence was adduced to dispute Schembri's statement that these improvements in benefits were granted at that time. Schembri related a series of conversations with Mary Fontaine, jewelry department manager, between May 3 and July 9, which, if credited, would establish knowledge of, and hostility toward, Schembri's union activity by Fontaine, and which would constitute interrogation, threats of discharge or benefit loss, impressions of surveil- lance, and an admission that the refusal to rehire was motivated by her union activity.6 Fontaine denied some of these conversations specifically and denied, generally, that she had any conversation with Schembri about the Union I The jewelry department was a leased concession. The employees of leased departments were included in the appropriate unit for the election in Case I-CA-14,492. The record reflects that all employees hired in leased departments were required to meet Respondent's approval. 6 General Counsel disclaimed, without explanation, any intention of alleging these incidents, except the last mentioned, or the newly instituted break and lunch periods, as independent violations of Sec. 8(aXl). Due process. I believe. requires that I deem myself bound by such a disclaimer. Notwithstanding his disclaimer, General Counsel argued that I should until their second telephone conversation of July 9. She admitted, however, that she knew that Schembri favored the Union. Fontaine claimed that this knowledge was derived from her observation of changes in Schembri's attitude toward her. She told Mr. Cote that Schembri was a union supporter. As is frequently the case, I find that I can totally credit neither witness. I was unfavorably impressed by Schembri's hostile and robot-like testimony. Moreover, Schembri's affidavits 7 evidence a strong hostility toward Fontaine and I was completely unpersuaded by Schembri's assertion that while she disliked Fontaine in their "business relationship," she was friendly toward her in a separate "personal relationship." Additionally, contrary to General Counsel's contention, Schembri's affidavits do not completely sup- port her testimony; several of these significant conversa- tions are nowhere related in those affidavits. Accordingly, while I credit her undenied testimony of conversations with Croteau and McDonald, I discredit the testimony of Schembri as to the conversations between Fontaine and herself, except where corroborated by Fontaine. On the other hand, I was much more favorably impressed with Fontaine's demeanor and candor. How- ever, I note that Fontaine told Cote of Schembri's union support. It is unlikely that she would have done so on the basis of mere speculation from hostile behavior. Either Schembri and Fontaine had some discussions about the Union or Fontaine had been otherwise specifically in- formed of Schembri's union activities. On July 7, according to her undenied testimony, Schembri spoke to the union representatives in front of the store, and while doing this saw both Cote and Croteau. On July 9, Schembri reported for work about 4:45 p.m. She had previously complained about a reduction in hours which took place on June 25, and had requested holiday pay for Memorial Day and Independence Day. At work she saw both Fontaine and McDonald. McDonald asked her why she had attached a note to her timecard requesting 2 hours additional pay for Memorial Day. She told McDonald that the Union had said that she was entitled to it. She also began to complain to McDonald about the reduction in her hours. Fontaine, who had been out of the department, returned and told Schembri that she was scheduled to work on the following day, a Saturday. Both Friday night and Saturday were expected to be busy because of an ear-piercing clinic and Schembri protested that it was not customary for an employee to have to work 2 consecutive "clinic" days. She also protested that she had not been scheduled to work Saturday. Fontaine told her that she had been listed on the schedule for the prior 2 days. McDonald, evidencing some anger, suggested to Fontaine that they leave. Schembri followed McDonald and asked to speak with her. She returned to her consider these incidents as evidence of animus and in support of the objections. I Schembri's affidavits, Resp. Exh. 3, were not received in evidence and were placed in the rejected exhibit file. General Counsel, however, argued from those affidavits in his bnrief. Upon reviewing those affidavits, and considering General Counsel's argument therefrom as a waiver of his objections, I have reconsidered my ruling and now receive those affidavits in evidence. 624 RICH'S OF PLYMOUTH, INC. department, expecting McDonald to follow her. When she returned and found that McDonald had left without talking to her, she became upset. She walked over to the service desk and asked Croteau to find a replacement for her as she was quitting. Croteau said that he would and took her keys. Schembri picked up her personal belongings and left. Before she left, she gave some instruction on what to do in the department to the employee from the service desk who had been assigned to take her place. As soon as she got home, Schembri called Fontaine and told her what she had done and why. She also told Fontaine that she had given some instruction to the employee who was working in the department. Around 9:30 p.m., Schembri again called Fontaine. She apologized for her actions, said that she was sorry she had quit and asked for her job back. Fontaine told her that she would have to speak to McDonald and that McDonald was upset with Schembri because Schembri had mentioned the Union to her. Schembri volunteered to work the following day if they would take her back. Fontaine remarked on what a good salesclerk Schembri was and how she would be missed and said that she would call McDonald and relay her apology and request to return. According to Fontaine, Schembri only apologized for hurting Fontaine and, when Schembri asked for her job back, told her that she could not do anything for her, the decision was up to "management." Fontaine believes that she did ask Schem- bri why she had mentioned the Union to McDonald. On the following day, Schembri again spoke with Fontaine. Fontaine told her that McDonald had said that her rehire was up to "management." She suggested that Schembri call the owner of the concession, Mr. Smith. It was Schembri's testimony, denied by Fontaine, that Fontaine told her that she was playing "dirty pool" by demanding additional pay for holidays, and that the Union was behind it. Thereafter, Schembri called Mr. Smith, who told her that her rehire was up to Fontaine, McDonald, or Croteau. On the following Monday or Tuesday, according to Schembri, she again called Fontaine who told her that she had been replaced and would definitely not be rehired. Schembri protested that this was unfair, that others had quit and been rehired, and alleged that she was being denied reinstatement because she had mentioned the Union to McDonald. Fontaine allegedly agreed. Fontaine denied making any such statements. Schembri was re- placed within about 2 days of having quit. As noted, Fontaine denied all mention of the Union between her and Schembri other than the one instance on the night of July 9. For the reasons set forth above, I credit Fontaine. Cote, the store manager, was responsible for the decision not to rehire Schembri. He admitted that Fontaine had told him that Schembri was in favor of the Union a couple of days before she quit. On that day, he was also told, by McDonald, that Schembri had claimed that the Union told her that she was entitled to holiday pay. He admitted that he was opposed to the employees' unionization. He also acknowledged that Fontaine had told him that Schembri was a very good employee; he personally considered her to be such. It was Cote's testimony that he refused to permit Schembri to be rehired because she had walked out of the store, without notice, on a busy sale night, when there was both an ear-piercing clinic and a lot of merchandise to be put away. General Counsel adduced evidence to establish that Schembri was treated differently from other employees who had quit. The evidence was not conclusive. It established that it was Respondent's practice, generally, to record that an employee who failed to show up for work without notice or who quit without warning - such as leaving for lunch and not returning, not an uncommon event - had quit not in good standing. This meant that the employee was not eligible for rehire. It also reflected that, at least some of the time, an employee who failed to show up or who walked out would be contacted by Respondent to determine the problem or the employee's intentions. Further, that evidence showed that Respondent's policies were not rigid. Not all store managers treated similar conduct in the same way. At the Plymouth store, Schem- bri's predecessor had quit four times, albeit with notice, and had been rehired. Another employee, a young man, had been discharged for stealing and had been rehired several months later upon his request and that of his parents, when it was felt that he had learned his lesson. Based upon the foregoing and notwithstanding that I have discredited much of Schembri's testimony regarding her conversations with Fontaine, I conclude that, but for her union activity, particularly her reliance on advice of the Union in claiming holiday pay and protesting a cut in her hours, Respondent would have rehired Schembri. In so concluding, I note that Cote was opposed to the Union, Respondent was responsible for other unlawful conduct, both Fontaine and McDonald had apprised Cote of Schembri's union activity, and Fontaine referred to Schembri's mention of the Union in her conversation with McDonald on the night she quit. Schembri was acknowl- edged to be a good employee, she did not leave Respon- dent's store "in the lurch," rather, she warned Croteau that she was leaving and even assisted in preparing someone else to run the department, and she quickly repented of her hasty decision. If, as the record reflects, Respondent would rehire an inexperienced employee discharged for stealing, it would appear improbable that it would refuse to rehire an experienced and very good employee who quit in a fit of pique, but who demonstrated enough concern for her department to make sure it was covered when she left and who apologized and sought reinstatement within 4 hours, unless it had another, more sinister, reason for denying reinstatement. Accordingly, I find that by denying rein- statement to Jeanne Schembri because of her union activity, Respondent has violated Section 8(a)(3) and (1) of the Act. UI. CONDUCT AFFECTING RESULTS OF ELECTION I have found that Respondent violated Section 8(aX)() of the Act by certain conduct occurring prior to May 14, the date the petition was filed. Under longstanding Board precedent, such conduct cannot be relied upon as a basis for setting aside the election. Ideal Electric and Manufactur- ing Company, 134 NLRB 1275 (1961); Goodyear Tire and Rubber Company, 138 NLRB 453 (1962). However, within 625 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the objections period, I have found that Respondent discriminatorily refused to rehire an employee in violation of Section 8(a)( 3) and (I) of the Act. I further find that such conduct also interfered with the exercise of a free and untrammeled choice in the election held on July 22. Accordingly, I recommend that the election in Case I-RC- 14492 held on that date be set aside and a rerun election be conducted. IV. THE REMEDY It having been found that Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) and (3) of the Act, it will be recommended that Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It having been found that Respondent discriminatorily refused to rehire Jeanne Schembri, Respondent shall offer her immediate and full reinstatement to her former or a substantially equivalent position, without prejudice to her seniority or other rights and privileges, and shall make her whole for any loss she may have suffered as a result of the discrimination against her. Any backpay found to be due shall be computed in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). "A violation of Section 8(a)(3) goes to the very heart of the Act." It therefore warrants that Respondent be further required to cease and desist from infringing in any other manner upon the rights guaranteed by Section 7 of the Act. Pan American Exterminating Co., Inc., 206 NLRB 298, fn. 1 (1973); Entwistle Manufacturing Company, 23 NLRB 1058, enfd. as modified 120 F.2d 532 (C.A. 4, 1941). Nothing in this recommended Order shall be construed as requiring Respondent to withdraw, vary, or abandon any wage increases or benefits which it may have granted its employees in an effort to discourage their union activities. FURTHER CONCLUSIONS OF LAW I. By soliciting grievances and promising and granting benefits to its employees in order to discourage them from supporting the Union and by creating the impression that the employees' union activities were under surveillance by the Employer, Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed them under Section 7 of the Act, thereby violating Section 8(a)(l) of the Act. 2. By refusing to rehire Jeanne Schembri because of her union activity, membership, or support, Respondent has discriminated in regard to the hire and tenure of her employment, in violation of Section 8(a)(3) and (1) of the Act. 3. The unfair labor practices enumerated above are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 8 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. 10248 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. 4. The unfair labor practice set forth above in subpara- graph 2 has interfered with the employees' rights to a free and untrammeled choice in the election conducted in Case I-RC-14492 on July 22, 1976, and has tainted the results of that election. 5. Respondent has not engaged in any unfair labor practices not specifically found herein. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby make the following recommended: ORDER8 The Respondent, Rich's of Plymouth, Inc., Plymouth, Massachusetts, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Soliciting grievances from employees and promising and granting wages increases and benefits to employees in order to discourage them from supporting the Union. (b) Creating the impression that the Employer is engaging in surveillance of employee union activities. (c) Discriminatorily refusing to rehire any employee because of that employee's union activity, membership, or support. (d) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Offer Jeanne Schembri immediate and full reinstate- ment to her former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or other rights and privileges, and make her whole for any loss of earnings she may have suffered by reason of the discrimination against her in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination or copying, all payroll records, social security payment records, timecards, per- sonnel records and reports, and all other documents necessary and relevant to analyze and compute the amount of backpay due under this Order. (c) Post at its Plymouth, Massachusetts, store copies of the attached notice marked "Appendix." 9 Copies of said notice on forms provided by the Regional Director for Region I, after being duly signed by the Respondent's authorized representatives, shall be posted by it immediate- ly upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced or covered by any other material. 9 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." 626 RICH'S OF PLYMOUTH, INC. (d) Notify the Regional Director, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER RECOMMENDED that the complaint be dismissed in all other respects. IT IS FURTHER RECOMMENDED that Case 1-RC-14492, be remanded to the Regional Director, that the election conducted on July 22, 1976, be set aside, and that the Regional Director conduct a rerun election at such time as he deems the circumstances permit a free choice on the issue of representative. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing in which all parties were afforded the opportunity to present evidence, it has been found that we violated the National Labor Relations Act in certain respects and we have been ordered to post this notice and to carry out its terms. The National Labor Relations Act gives you, as employees, certain rights, including the right: To engage in self-organization To form, join, or help a union to bargain collectively through a representa- tive of your own choosing To act together for collective bargaining or other mutual aid or protection To refrain from any or all of these things. Accordingly, we give you these assurances: WE WILL NOT promise you that we will satisfy your grievances or promise you benefits in order to discour- age you from supporting Retail Clerks Union Local 224, Retail Clerks International Association, AFL- CIO, or any other union. WE WILL NOT grant you wage increases of benefits in order to discourage you from supporting the above- named union or any other labor organization. How- ever, we are not required to withdraw, vary, or abandon any wage increases or benefits. WE WILL NOT create the impression that we are engaging in surveillance of your union activities. WE WILL NOT refuse to rehire any employee because of that employee's union activities. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their statutory rights. WE WILL offer Jeanne Schembri immediate and full reinstatement to her former job or, if that job no longer exists, to a substantially equivalent position, without loss of seniority or other rights or privileges, and WE WILL make her whole for any loss of earnings she may have suffered by reason of the discrimination against her. RICH'S OF PLYMOUTH, INC. 627