Food Park

FOOD PARK Governor's Foods Corporation d/b/a Food Park and Donna Mezo ® Case 14-CA-17745 13 November 1985 ORDER REMANDING BY MEMBERS DENNIS, JOHANSEN, AND BABSON On 11 June 1985 Administrative Law Judge Lowell Goerlich issued the attached decision. The General Counsel filed exceptions and a supporting brief. The Respondent filed exceptions, a support- ing brief, and an answering brief to the General Counsel's exceptions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- m.ember panel. The Board has considered the record and the at tached decision in light of the exceptions and briefs and has decided to remand the 8(a)(3) and ( 1) alle- gations to the judge for further consideration and issuance of a supplemental decision. We defer con- sidering the 8(a)(1) allegation pending the judge's supplemental decision. The Alleged 8(a)(3) and (1) Violations The complaint, as amended at the hearing, al- leges that the Respondent violated Section 8(a)(3) and (1) by failing and refusing to hire named job applicants because of their union membership.1 The complaint also alleges that the Respondent violated Section 8(a)(3) and (1) by refusing to hire two other applicants for employment until Novem- ber 1984.2 The judge concluded that the Respondent violat- ed Section 8(a)(3) and (1) of the Act by refusing to hire certain applicants for employment who had worked for the unionized predecessor. In doing so, the judge found that a disproportionate failure to hire union employee applicants created an infer- ence of the Respondent's unlawful motivation.3 The judge also found that the Respondent's agent, Manager John Holmes, admitted that only five union people were hired to "keep the union out." The judge then summarily concluded that the Re- spondent's evidence was insufficient to rebut Holmes' admission of unlawful motivation. 3 The job applicants include Tom Irvin, Tom Baker, Kay Reynolds, Mona Gaines , Donna Mezo, Mike Patton, Bilge Banvoz, Ruth McGuill, Linda Redmon, Jim Harris, Walter Clark , and Archie Bowers 2 These applicants are Briana Ingram and Larry J Easley 2 A total of 23 employees were hired (18 part time, 5 full time), but only 5 were union members. Manager John Holmes, who selected part- time employees, testified that he knew former Southern Food employee applicants were union members. 427 It is well established that, in all cases alleging 8(a)(3) violations, the Wright Line4 analysis is appli- cable.5 Although the judge stated that his decision followed the Wright Line test, he failed to make any specific factual findings or credibility resolu- tions regarding the alleged unlawful refusal to hire specific named discriminatees.6 In fact, the decision is devoid of findings that, absent unlawful motiva- tion, the alleged discriminatees would have been hired. This analysis is vital where the complaint, as here, alleges a refusal to hire named employees.? Where a refusal-to-consider violation is found, however, the determination of whether a particular individual would have been hired, absent the Re- spondent's discrimination, is properly left to the compliance proceeding." Therefore, we find that the judge's decision and analysis fail to conform to the General Counsel's refusal-to-hire complaint allegation. In particular, the decision fails to evaluate the Respondent's rea- sons for rejecting the named employment appli- cants. Instead, the judge summarily found, without specific reference to individuals, that the Respond- ent's evidence was not generally credible. The Board's Rules and Regulations, Section 102.45(a) provides that after a hearing the judge shall prepare a decision containing "findings of fact, conclusions, and the reasons or basis therefor, upon all material issues of fact, law, or discretion presented on the record." Also, Section 557(c) of the Adminstrative Procedure Act requires that a decision state "findings and conclusions, and the reasons or basis thereof, in all material issues of fact, law, or discretion presented in the record." We shall, therefore, remand the 8(a)(3) and (1) allegations of unlawful refusal to hire to the judge for issuance of a supplemental decision consistent with Wright Line,' our Rules and Regulations, and the Administrative Procedure Act. 10 IT IS ORDERED that the proceeding is remanded to Administrative Law Judge Lowell Goerlich to issue a supplemental decision containing findings of fact, credibility resolutions, and conclusions of law regarding the complaint allegations that the Re- spondent violated Section 8(a)(3) and (1) by refus- ing to hire named job applicants and by refusing to hire two other applicants for employment until No- 4 Wright Line, 251 NLRB 1083 (1981), enfd. 662 F 2d 899 (1st Cir. 1981), cert denied 455 U.S 989, approved in NLRB v. Transportation Management Corp., 462 U S. 393 (1983) 5 Limestone Apparel Corp, 255 NLRB 722 (1981). 6 See Webb Furniture Enterprises, 272 NLRB 312 (1984), supplemental decision 275 NLRB 1305 (1985). ' See, e.g, Hutchens Trucking Co, 268 NLRB 509, 513 (1984), enfd mem. 749 F 2d 32 (4th Car. 1984). Pierce Governor Co, 243 NLRB 1009, 1014 (1979). s Jefferson Electric Co., 271 NLRB 1089, 1090 (1984). 10 Webb Furniture Enterprises, supra. 277 NLRB No. 41 428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD vember 1984. The supplemental decision shall be served on the parties, and thereafter the provisions of Section 102.46 of the Board's Rules and Regula- tions shall apply. Keltner W. Locke, Esq., for the General Counsel. Donald J. Cairns, Esq., Milwaukee, Wisconsin, for the Respondent. Donna Mezo, of McLeansboro, Illinois, in propria perso- na. DECISION STATEMENT OF THE CASE LOWELL GOERLICH, Administrative Law Judge. The charge filed by Donna Mezo, an individual, on 19 No- vember 1984 was served on Governor's Foods Corpora- tion d/b/a Food Park, the Respondent, by certified mail about the same date. The first amended charge was filed on 28 December 1984 and served by certified mail on the Respondent on the same date. A complaint and notice of hearing was issued on 28 December 1984. In the com- plaint,' among other things, it was charged that the Re- spondent has failed to hire certain employees in violation of Section 8(a)(1) and (3) of the National Labor Rela- tions Act (the Act). The Respondent filed a timely answer in which it denied that it had committed the unfair labor practices alleged. The case came on to be heard on 18, 19, and 20 March 1985 at St. Louis, Missouri. Each party was afforded a full opportunity to be heard, to call, examine, and cross- examine witnesses, to argue orally on the record, to submit proposed findings of fact and conclusions, and to file briefs. All briefs have been carefully considered. On the entire record2 in this case and from my obser- vation of the witnesses and their demeanor, I make the 'following FINDINGS OF FACT, CONCLUSIONS, AND REASONS THEREFOR 1. THE BUSINESS OF THE RESPONDENT The Respondent is, and has been at all times material, a corporation duly organized under, and existing by virtue of, the laws of the State of Illinois. At all times material, the Respondent, a corporation with an office and place of business in McLeansboro, Illinois (the McLeansboro store), has been engaged in the operation of retail grocery stores in McLeansboro , Salem, and Har- risburg, Illinois. During the period beginning 31 October 1984 through 28 February 1985, the Respondent in the course of its retail business operation derived gross revenues in excess of $500,000 and purchased and received at its Illinois fa- ' Amendments to the complaint were allowed at the hearing. 2 There being no opposition thereto, the General Counsel 's motion and the Respondent's motion to correct transcript are granted and the record is corrected accordingly cilities products, goods, and materials valued in excess of $50,000 directly from points outside the State of Illinois.3 The Respondent is now, and has been at all times ma- terial, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED United Food & Commercial Workers, Local 99-A (the Union) is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The 8(a)(3) Allegations First: The General Counsel offered the Respondent's McLeansboro store's payroll register for the period ending 6 October 19844 whereon appeared the names of 25 employees; 7 of that number worked 40-hour weeks; 2 of them were supervisors.5 All other employees worked less than 40 hours per week. John Wendell Holmes, the store manager, identified the following employees as having been in the employment of Southern Food Park, Inc. which discontinued business at the McLeansboro store on 30 September 1984: Wayne Aydt, Bowling, Lyle Glenn, Holmes, Ray Newton, Audrey Pryor, Juani- ta Wellen, and Curt Healey who had been a former em- ployee. Bowling, Holmes, Newton, Wellen, and Healey were 40-hour week employees.6 Prior to 29 September 1984 Southern Food Park, Inc. had operated the McLeansboro store under a contract with the Union; this contract contained a union-security clause. When Southern Food Park, Inc. determined to sell all of its facilities,' they were purchased by the Re- spondent. These facilities included the McLeansboro store.8 However, Sherrill Cantrell was the putative pur- chaser of the McLeansboro store and it was intended that he should become the owner and operator of the store on 1 October 1984 when Southern Food Park, Inc. ceased its operations of the store on 29 September 1984. Pursuant to its closure of the store, Southern Food Park, Inc. posted a notice dated 11 September 1984 ad- dressed to its employees advising them that Southern Food Park, Inc. had "sold out" to Governor's Foods Corporation (the Respondent), and that 30 September 1984 would be the last day of their employment. There- after applications for employment were lodged at the store by Southern Food Park, Inc. employees; however, 3 Stipulated by the parties. 4 This payroll was for the first week the Respondent operated the McLeansboro store 5 John Wendell Holmes, store manager, and Vincent Eugene Bowling, assistant store manager. 5 The record does not specifically reveal which employees were con- sidered full-time employees and which were considered part-time em- ployees. 7 The parties stipulated that "Southern Food Park had a total of six facilities which-only one of which is really essentially involved in these proceedings, but there was a simultaneous sale of all six " 8 The Respondent agreed to purchase Southern Food Park, Inc's store because it wanted to maintain Scot Lad's source of customers FOOD PARK the name of the employing employer did not appear on these applications. Holmes, who had been the Southern Food Park, Inc. store manager, was called as a witness by the General Counsel; he also testified on direct examination for the Respondent. Among other things he testified that Can- trell had intended to commence the operations of the McLeansboro store on 1 October 1984. Prior to that date Cantrell had spent considerable time in the store observ- ing. On 29 September he asked Holmes to stay on as store manager and work for him and to "staff the part- time employees" for him. On 29 and 30 September Holmes reviewed employee applications "after hours" at home. Holmes testified, "Basically we were looking for employees that would work for minimum or close to it .. . in a part-time ca- pacity." These were Cantrell's instructions to Holmes. Holmes selected the part-time employees9 and Cantrell selected the full-time employees whom he interviewed in Holmes' presence. According to Holmes, Cantrell asked the full-time employees "what they would work for and basically told them what their jobs would be." Holmes did not remember that the Union was mentioned during the interviews. He said that he did not know whether the part-time employees "were; Union" or not. In respect to Cantrell, he testified, "Mr. Cantrell indicated firmly that he would like to operate the store from a nonunion basis, but he also indicated that he would be willing to operate the store Union if so required." However, Can- trell did know that some of the full-time employees se- lected were union members. Holmes testified that part-time employees were select- ed for "flexibility." "Basically the needs of the store was [sic] what we looked at when we staffed it part-time." Cantrell "wanted to go mainly part-time." Cantrell's wife was among those selected as an employee. The selection of those employees was completed "after hours on Sep- tember 30th." Holmes reviewed about 200 employee ap- plications. On 1 October 1984 according to Holmes "basically the shell of the work force had already reported for work" at the McLeansboro store. However, the store did not open until 2 October. Holmes explained, "Mr. Cantrell, if he would have had his funds available, we would have been open October 1. He wanted to keep the store open. He didn't want to close, but when accidentally the funds did not become-apparent that he was not going to get his loan, we did not open the store till October 2." Can- trell was unable to obtain the funding. Thus on 1 Octo- ber, about noon, Edwin Greene-10 contacted Holmes and told him to staff the store with "Cantrell's people .. . and to go ahead and assume the store was going to be his." "We were going to operate it as Mr. Cantrell wanted it so when he took it over it would be in place." Greene told Holmes "to call the people that had been se- lected and to open the store with them on 2 October 9 Holmes testified, "The part-timers were basically left up to me with his subsequent approval of these employees" 10 Edwin Greene, a sales counselor for Scot Lad Foods, had agreed to act as a consultant and Southern Illinois representative for the Respond- ent inasmuch as the Respondent's offices were in Milwaukee, Wisconsin 429 1982." t 1 Hence, the Respondent commenced the oper- ation of the McLeansboro store on 2 October 1984 with the anticipation that Cantrell would complete the deal and assume the operation with the employees selected by Cantrell. The deal was never completed and the Re- spondent has continued to operate the store. The parties stipulated that "as of approximately noon, October 1, 1984, Mr. Bowling and Mr. Holmes became employees of Governor's Foods [the Respondent]. Were hired in the capacity of store-assistant store manager and store manager, respectively, and are supervisors and agents within the meaning of Section 2(11) of the Na- tional Labor Relations Act." Employee Cecelia Kay Reynolds testified that she heard Holmes tell an employee, "If you want a job don't sign the papers, hold off on signing the papers, because the-the store will be sold in a couple of weeks." The employee had asked what she should do about signing "Union papers." Employee Archie Bowers testified that sometime prior to the sale of the store Bowling said to him, ".. . if I were you, I'd hold off as long as I can before signing the papers, because he might-he might get-you know, might not get hired back if you're union." Bowers had asked Bowling what he should do about signing union papers. Employee Tom Irvin credibly testified that in a phone conversation 19 November 1984 with Holmes, Holmes said, ". . . they could only keep five people. And I said was that to keep the union out. And he said yes." Later that evening Irvin visited the store. He said to Holmes, "I guess I could blame myself . . . because of the Union we lost our jobs. And he said, `Yes."' "Then he told me they were working underneath the same union contract, but different wages." On cross-examination Irvin testified that Holmes said, "they told him he could only keep five people--Union people. And I said was that to keep the Union out and he said yes."12 11 On this subject Greene testified that he learned on I October 1984 at 11:30 am from James Kitelinger, an attorney who was handling the Cantrell purchase, that the Respondent "would have to operate the store until the closing," that "we would have to staff it " Greene contacted Holmes and asked him "if he had a crew lined up and he said, `Yes "' Greene responded, ". . . good, work them " Holmes showed Greene "a list of the wages that were to be paid" to which Greene responded, "Fine." Nothing was discussed about the store's individual personnel; Holmes and Bowling were hired. 12 I have carefully considered the reasons which the Respondent has cited for my discrediting Irvin. I have carefully reviewed the testimony of Holmes and Irvin I have reflected upon the demeanor of Holmes and Irvin while they were testifying and I am convinced that Irvin was testi- fying to the truth. In this respect it is significant that the Respondent hired only five union people, former Southern Food Park, Inc. employees. Holmes was asked the question: Q Mr. Holmes did you ever tell Mr Irvin or any other employee that you could only keep five union people' A No sir, not union people. Q. What did you say to Mr Irvin or to other people' A Well basically in the impressions that I had gotten from a former employee was that you could keep-if they wanted to be nonunion so many people. 430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Second: I conclude that discrimination occurred in the selection of the Respondent's complement of employees for the McLeansboro store based on the following cred- ited facts: Cantrell and Holmes, in selecting employees for the McLeansboro store, passed over all but five of the former Southern Food Park, Inc. employees (Healey had been a former Southern Food Park, Inc. employee) whom they knew to be union. (Each knew that all former Southern Food Park, Inc. employees including part-time employees were required to join the Union.) Thus 18 out of a complement of 23 employees, over 75 percent, were not former Southern Food Park, Inc. em- ployees, although they had applied for the jobs. The fail- ure of Cantrell and Holmes to select former Southern Food Park, Inc. employees manifested a disproportionate treatment of known union people which created an infer- ence of discrimination and union animus leaving it to the employer to give an adequate explanation of its selec- tions13 which was not done with credible evidence. Can- trell "firmly" expressed a desire to operate the store non- union. Holmes admitted to a job applicant that the com- plement of employees was selected to "keep the union out" 14 and that employees were not hired because of the Union. The Respondent's evidence has not credibly counter- vailed this admission of Holmes. Thus the remaining issue to be decided is whether Holmes in fulfilling the Respondent's specific direction to put Cantrell's selections to work in its McLeansboro store caused the Respondent to become a party to or otherwise chargeable with the unlawful discrimination against former employees of Southern Food Park, Inc. It is uncontroverted and admitted that Holmes was acting as the agent for the Respondent when he put Can- trell's employee selections to work for the Respondent. Thus, at the time and while in the Respondent's employ- ment, Holmes knew that he was implementing on behalf of the Respondent the unlawful practices which had been initiated by Cantrell. In this respect he was acting 15 "Numbers are important" in assessing an employee's motivation, NLRB v. Camco Co., 340 F 2d 803, 806, 809 (5th Cir. 1965), cert denied 382 U S 926 (1965), and it is well settled that "disproportionate treatment of union and nonunion workers may be very persuasive of discrimination and may create an inference of discrimination leaving it to an em- ployer to give an adequate explanation " NLRB v Chicago Steel Foundry Co, 142 F 2d 306, 308 (7th Cis 1944); NLRB v Midwest Hanger Co., 474 F 2d 1155, 1158 (8th Cir. 1973), cert. denied 414 U.S. 823 (1973) The credible record does not refute the inference 14 As was stated in Foodway of El Paso, 201 NLRB 933, 937 (1973): The Board, with court affirmance, has held in several cases that refusal by the buyer of a business to hire the employees of the former operator of that business because of their membership in or representation by a union, in order to avoid the obligation of a suc- cessor-employer, is violative of Section 8(a)(1) and (3) of the Act. K.B & J Young's Supermarkets v NL R.B., 377 F 2d 463 (C.A 9), N.L.R B. v New England Tank Industries, 302 F 2d 273 (C.A. 1); Piasecki Aircraft Corp v NLRB, 280 F 2d 575 (C.A. 3); Barrington Plaza, 185 NLRB No. 132 See also Phelps Dodge Corp. v. NLRB, 313 U S 177, 185 (1941), where it is stated, "Discrimination against union labor in the hiring of men is a dam to self-organization at the source of supply " Universal Mobile Homes, 210 NLRB 689 (1974), Newark Star Ledger, 232 NLRB 581 (1977). as the agent of the Respondent.15 Because Holmes was acting within the scope of his authority when he en- gaged in the hiring as directed by the Respondent, his knowledge and actions in this respect are imputed to the Respondent. "The principal is affected by the knowledge which the agent has when acting for him . ..." Re- statement 2d, Agency § 278. "A person has notice of a fact if his agent has knowledge of the fact, reason to know it or should know it, or has been given a notifica- tion of it, under circumstances coming within the rules applying to a liability of a principal because of notice of his agent." Restatement 2d, Agency § 9(3). Additionally, because the former employees of South- ern Food Park, Inc. had been advised by Southern Food Park, Inc. that it had sold its McLeansboro store to the Respondent and they obviously knew that Holmes had been employed by Respondent at the time the hirings took place, they had reason to believe that Holmes, in ef- fecting the discrimination against them, was acting on behalf of the Respondent. Thus the Respondent became chargeable for Holmes' unlawful acts. "The general rule is that an employer will be charged with responsiblity for the acts of his supervisory employees when its em- ployees would have just cause for believing that he was acting on behalf of the company." Trey Packing v. NLRB, 405 F.2d 334, 338 (2d Cir. 1968). See also Furr's, Inc. v. NLRB, 381 F.2d 562 (10th Cir. 1967), and cases cited therein. That Holmes became aware of the anticipa- tory discrimination (which Holmes implemented) prior to his employment by the Respondent is immaterial. "Except for knowledge acquired confidentially, the time, place, or manner in which knowledge is acquired by a servant or other agent is immaterial in determining the liability of his principal because of it." Restatement 2d, Agency § 276. (Emphasis added.) Accordingly I find that the Respondent was and is in violation of Section 8(a)(3) of the Act. I deem the hold- ing herein to be consistent with the opinion of the Su- preme Court in Golden State Bottling Co. v. NLRB, 414 U.S. 168 at 173 (1973), where Section 9(3), Restatement 2d, Agency, is noticed. As in Golden State the inference is here that Holmes must have informed the Respondent of the manner in which he selected the Respondent's em- ployees. In any event the Respondent had the obligation to ensure that the authority given by it to Holmes was not exercised contrary to law. "When this [prerogative of management, hiring, firing, discipline, etc.] is placed in the hands of a particular employee, the employer has an obligation to ensure that the power will not be used con- trary to law and he may not claim that he did not know of the employee's intra-union activities [here discrimina- tory hiring practices]." Plumbers Local'636 v. NLRB, 287 F.2d 354, 361 (D.C. Cir. 1961). Indeed, it is strange that the Respondent would not have inquired of Holmes the manner in which he intended to select its employees or have provided him with guidelines. Because it complete- ly abandoned its hiring prerogatives to its agent Holmes 15 "Agency is the fiduciary relation which results from the manifesta- tion of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other to so act," Restatement 2d, Agency § 1 (1958) FOOD PARK without apparent reservation and has enjoyed the benefit of Holmes' discriminatory practices , it ought not be held to complain that it became chargeable for Holmes ' viola- tion of the Act which it could have avoided if it had taken appropriate action . As was said by the Supreme Court in the case of Jim McNeff v. Frank L. Todd, 113 LRRM 2113, 97 LC ¶ 10,017 (1983), "Having had the music, he must pay the piper."' The same salutary policy (see Golden State Bottling Co., supra) which requires a successor employer to remedy his predecessor's known i s unfair labor practices is applicable here.17 'The General Counsel 's thesis is valid; i.e., "According- ly, when Mr. Holmes-at this point admittedly a 2(11) supervisor of Respondent-offered employment to the individuals he had selected, he consummated the unfair labor practice." It is indeed significant that these unfair labor practices were consummated by Holmes at a time when he was in the employment of and was acting on behalf of the Re- spondent. B. The 8(a)(1) Allegations By Holmes' remarks to a prospective employer that employees were selected to keep the Union out and it was because of the Union that employees lost the jobs, the Respondent interfered with employees' Section 7 rights and thereby the Respondent violated Section 8(a)(1) of the Act. t s THE REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, I recommend that it cease and desist therefrom and take certain action designed to ef- fectuate the policies of the Act. Having found that the Respondent is chargeable with the unlawful discrimina- tion in the hire of certain job applicants to staff its McLeansboro store, I recommend that the Respondent remedy such unlawful conduct. I recommend that this be done by restoring the status quo ante as nearly as possi- ble as it existed at the time the Respondent commenced operating the McLeansboro store.19 Thus the individual job applicant shall be considered without discrimination for the available job as if no employee had been hired. Since, at that time, a labor agreement was in existence which was later adopted with modifications by the Re- spondent and the Union, I further recommend that in fill- ing the McLeansboro positions and erasing the effect of the Respondent's discriminatory practices, the seniority provisions of said agreement be followed; that is, that 16 "A person has notice of a fact if he knows that fact, has reason to know it, or has been given notification of it." Restatement 2d, Agency § 9(1) 19 In drawing this decision I have not been unmindful of the teachings of Wright Line, 251 NLRB 1083 (1980), which teachings I have followed is In the case of Universal Mobile Homes, 210 NLRB 689 (1974), the Board attributed to the employer the remarks of a similar nature and under similar circumstances as those in the instant case 19 " . in cases involving discriminatory conduct, the restoration of the status quo ante is a necessary remedy as it is the Board's policy that the wrongdoer, rather than the innocent victim, should bear the hard- ships of the unlawful action " Mashkin Freight Lines, 272 NLRB 427, 428 (1984). 431 each job applicant be given the job to which he or she would have been entitled under the agreement as if she or he had been recalled from a job layoff.2° In imple- menting this procedure, employees now working at the McLeansboro store shall be replaced by any person who, under the agreement, would be entitled to the job. If, by reason of the Respondent's misconduct, any of the discri- minatees have lost wages or other employee benefits, these shall be restored in accordance with the Board's policies in this respect. F. W. Woolworth Co., 91) NLRB 289 (1950), with interest as in Florida Steel Corp., 231 NLRB 651 (1977).21 CONCLUSIONS OF LAw 1: The Respondent is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act, and it will effectuate the purposes of the Act for jurisdiction to be exercised herein. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By interfering with, restraining, and coercing em- ployees in the exercise of the rights guaranteed them by Section 7 of the Act, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By unlawfully discriminating in regard to the hire of employees on 2 October 1982 the Respondent has en- gaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning, of Sec- tion 2(6) and (7) of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed22 ORDER The Respondent, Governor's Foods Corporation d/b/a Food Park, McLeansboro, Illinois, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Unlawfully discriminating in regard to the hire of employees in violation of Section 8(a)(3) and (1) of the Act. (b) Unlawfully interfering with employees' Section 7 rights by telling them that employees had been chosen to keep the Union out and that employees lost their jobs be- cause of the Union. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 20 It is not intended by this remedy to foreclose any of the Respond- ent's valid defenses in a compliance hearing directed at an individual dis- criminatee 21 See generally Isis Plumbing Co, 138 NLRB 716 (1962) 22 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses 432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Comply fully with the remedy section of this deci- sion. (b) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (c) Post at its McLeansboro, Illinois store copies of the attached notice marked "Appendix."23 Copies of the notice, on forms provided by the Regional Director for Region 14, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 23 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al 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 NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT unlawfully discriminate in regard to the hire of our employees in violation of Section 8(a)(3) of the National Labor Relations Act. WE WILL NOT interfere with our employees' Section 7 rights by telling them that employees had been chosen to keep the Union out and that employees lost their jobs be- cause of the Union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL staff our complement of employees at our McLeansboro store as of 2 October 1984 in accordance with the seniority provisions of our contract with the Union. WE SHALL restore any wages or other benefits lost by any persons because of our unlawful discrimination against them, plus interest. GOVERNOR'S FOODS CORPORATION D/B/A FOOD PARK