Emery's I.G.A. Store of Florence, Inc.

National Labor Relations Board - Board Decisions

Jul 14, 1975

219 N.L.R.B. 121 (N.L.R.B. 1975)

EMERY 'S I.G.A. STORE
Emery's I.G.A. Store of Florence, Inc. and Retail
Clerks Union , Local 1188 , Retail Clerks Interna-
tional Association , AFL-CIO. Case 36-CA-2641
July 14, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND JENKINS
On May 8, 1975, Administrative Law Judge Henry
S. Salim issued the attached Decision in this proceed-
ing. Thereafter, the General Counsel filed exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and has
decided to affirm the rulings, findings, and conclu-
sions of the Administrative Law Judge and to adopt
his recommended Order, as modified below.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge as modified
below and hereby orders that Respondent Emery's
I.G.A. Store of Florence, Inc., Florence, Oregon, its
officers, agents , successors , and assigns , shall take
the action set forth in the Administrative Law
Judge's recommended Order, as herein modified:
1. Substitute the following as paragraph 2(a):
"(a) Offer Jessie Young immediate and full rein-
statement to her former position or, if such position
no longer exists, a substantially equivalent position,
without prejudice to her seniority or other rights,
privileges, or working conditions, dismissing, if nec-
essary, anyone hired in such job on or after Novem-
ber 8, 1974, and make her whole for any loss of earn-
ings she suffered as a result of her discharge, in the
manner set forth above in the section entitled `The
Remedy!"
2. Substitute the attached notice for that of the
Administrative Law Judge.
i We find merit in the General Counsel 's exception to the Administrative
Law Judge 's inadvertent failure to require Respondent to reinstate Jessie
Young as part of his recommended Order. Accordingly , we hereby amend
the recommended Order.
APPENDIX
121
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a full hearing in which both sides had the op-
portunity to present their evidence, the National La-
bor Relations Board has found that we, Emery's I.G.
A. Store of Florence, Inc., violated the National La-
bor Relations Act, and it has ordered us to post this
notice.
WE WILL carry out this order, and we will
comply with the following:
The law gives all employees these rights:
To organize themselves
To form , join, or help unions
To act together for collective bargaining or
other mutual aid or protection
To refuse to do any or all these things.
WE WILL NOT discourage membership in Retail
Clerks Union , Local 1188 , Retail Clerks Interna-
tional Association , AFL-CIO, or any other
union , by discharging or otherwise discriminat-
ing against any of our employees because of
their union activities.
WE WILL offer Jessie Young her former job or,
if such job no longer exists , a substantially
equivalent job , without prejudice to her seniority
or other rights , privileges , or working conditions,
dismissing, if necessary , anyone hired in such
job on or after November 8, 1974, and we will
pay her for monetary losses suffered because of
her illegal discharge by us in November 1974.
EMERY'S I.G.A. STORE OF FLORENCE, INC.
DECISION
STATEMENT OF THE CASE
HENRY S. SAHM , Administrative Law Judge: The primary
issue in this proceeding, heard at Eugene, Oregon, on Feb-
ruary 11, 1975, pursuant to a charge filed on November 14,
1974, by the above Union, and a complaint issued on Janu-
ary 6, 1975,' is whether the Respondent, herein called the
Company, discharged Jessie Young, an employee, in viola-
tion of Section 8(a)(3) of the Act, because she joined or
assisted Retail Clerks Union Local 1188, Retail Clerks In-
ternational Association, AFL-CIO, the Charging Party,
herein called the Union, or engaged in other concerted ac-
1 Except where otherwise specified , all dates herein refer to the year 1974
219 NLRB No. 26
122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tivities protected by Section 7 of the Act .2 Upon the entire
record, including observation of the witnesses and after
due consideration of the briefs filed by the parties on
March 5, 1975, there are made the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY AND THE LABOR
ORGANIZATION INVOLVED
The Company, an Oregon corporation engaged at Flor-
ence , Oregon, in the operation of a retail grocery store, did
a gross annual volume of business the past year in excess of
$500,000 of which it received goods in excess of $50,000
directly from points outside the State . It is found that Re-
spondent is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act. The Union is a
labor organization within the meaning of Section 2(5) of
the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
Jessie Young's employment history reveals that she was
originally hired by the Company in 1964 as a checker. Due
to a back injury incurred in performing her duties as a
checker in Respondent's grocery store , she was forced to
leave her employment in order to undergo an operation in
July 1973. During the time she was recovering from surgery
of her spine, she kept the Company informed of her pro-
gress . She also filed a claim under the Oregon Workmen's
Compensation Law. Young's doctor advised her in the lat-
ter part of July 1974 that she was medically able to return
to work whereupon she notified Donald Steward, coowner
and manager of the Respondent grocery store, of her avail-
ability to resume her former position of checker. She was
informed by Steward in July that he did not have a
checker's job open, but on September 25, he reinstated
Young and she reported for work on September 30.
On November 5, she met during lunch with three offi-
cials of the Charging Party Union. After acquainting her
with what the Union could do for the employees and ex-
plaining its pension plan, she signed a union authorization
card the same day.
After returning from lunch with the union officials, she
2 The relevant provisions of the National Labor Relations Act, as amend-
ed (61 Stat. 136, 29 U.S.C. Supp. V. §8151, el seq ), are as follows:
RIGHTS OF EMPLOYEES
Sec. 7. Employees shall have the right to self-organization , to form,
join, or assist labor organization , to bargain collectively through repre-
sentatives of their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid or
protection , and shall also have the right to refrain from any or all such
activities except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a condition
of employment as authorized in section 8(a)(3).
UNFAIR LABOR PRACTICES
Sec. 8(a). It shall be an unfair labor practice for an employer-
(1) To interfere with , restrain, or coerce employees in the exercise of
the rights guaranteed in section 7;
(3) By discrimination in regard to hire or tenure of employment or
any term or condition of employment to encourage or discourage mem-
bership in any labor organization .. .
spoke to two of the checkers, Florence Crozier and Loreen
Johnson, about her meeting with the union officials and
told them "they would probably be contacting them." Cro-
zier, testified Young, "was quite indignant and she said
they didn't need to contact her; that she would throw them
out." Loreen Johnson did not respond. When Johnson lat-
er expressed her disinterest in actively supporting the
Union other than her willingness to attend a union meet-
ing, Young attempted to arrange for a union meeting at her
home, but none of the employees she invited accepted.
About 7 p.m. on November 5, the same day she had
lunch with the union officials, they came to the store and
asked her which of the employees would be working until 9
p.m., which was the time the store closed. About the same
time that Young left the store at her scheduled quitting
time of 7 p.m., the union officials proceeded to the back of
the store and engaged two of the male employees in con-
versation with respect to the advantages of being repre-
sented by the Union.
When Young arrived home, she received a telephone call
from Donald Steward, her employer, sometime after 7:30
p.m. According to Young, he said: "Mrs. Young, I just
want you to know I just threw your union friends out of
my store. They have no right to come into my store and
bother my employees on my time. So I just threw them out.
And as for you, we'll discuss this tomorrow. . . . I [Young]
kept trying to say something [but] he just hung up on me."
When she arrived at the store the following morning, 20
minutes before it opened, Young went directly to where
Steward was and told him that she wanted to discuss his
phone call to her the previous evening. Young's recital of
what then occurred, reads as follows: "[H]e accused me of
forcing him to rehire me, which I denied, and he said, `Well
the [Oregon] Labor Commission forced him to rehire me so
that I could bring the Union into the store. And I denied
this....' 3 He said I was a `damned liar.' That I had an
axe to grind and that bringing the Union into the store was
my way of doing it. . . . I said, `Don, do you want me to
stay or do you want me to leave?" And he said he `didn't
give a damn' what I did. So, I went and hung up my coat
and went to work."
From the time of that conversation on the morning of
November 6, Steward did not speak to Young again until
around 6 p.m. on November 8, when her shift ended and
she was leaving for the day. Steward gave Young her pay-
check at which time she asked him if she was fired, to
which Steward replied, according to Young: "We just can't
make it." Young continued that when she inquired what
was the "reason" for her discharge, Steward replied: "I
have no reason. We just can't make it."
On cross-examination , Young denied that she had ever
embarrassed Steward, as he testified, by telling customers
in his presence, after her return to work on September 30,
that although he did not want to rehire her, nevertheless he
was required to do so.4 She also denied Steward's testimo-
3 On cross-examination , Young testified she told Steward that when she
had gone to the Labor Commission in October , they had informed her that
he had an "obligation" to rehire her. It was about a month after she had
gone to the Oregon Labor Commission , Young testified , that Steward re-
hired her.
Steward 's version of this incident is that on about six occasions , on dates
EMERY'S I.G.A. STORE 123
ny that she refused to wait on customers whom she did not
like or his testimony that she sprayed a deodorizer around
the area of her checkstand after "certain" customers had
their grocery purchases checked by her.
On redirect examination , she testified that Steward had
never complained to her at any time with respect to his
"false" accusations that she refused to wait on customers
or her ever spraying her checkstand with a deodorizer. She
denied Steward ever reprimanded her, as alleged by Re-
spondent, for calling him or any one of the other two male
employees an inordinate number of times , to assist her in
packaging customers ' purchases which required them to
carry these heavy bags of groceries to the customers auto-
mobiles . Moreover , stated Young , in such situations, it was
routine for the women checkers to ask the three male em-
ployees to help them with bags or boxes of groceries too
heavy for them to carry.
Donald Steward is coowner and manager of the Respon-
dent store. When Young recovered from the operation that
she underwent in July 1973, she applied in July 1974 for
her former job of checker. Steward testified that after her
operation he would not have rehired Young, as there had
existed in the store before she underwent an operation, a
"disagreement among the checkers " which he described as
"disruptive" and that he "figured" this situation was
caused by Young. However, continued Steward, when he
consulted with his attorney, he advised him that he was
required to reinstate Young to her former job . He testified
that he also inquired of the Oregon Labor Commission as
to his "rights" and they informed him he was "obligated"
to rehire [Young] and that "if I did not hire her that she
could take it to court." Moreover, stated Steward, Young
had threatened to "take [him] to court" in the event he
refused to rehire her. Furthermore, testified Steward, the
reason he reinstated Young was due solely to his apprehen-
sion that she would involve him in a lawsuit.
Steward conceded on his direct examination that he
knew of Young's union activities "at least" 2 weeks before
she met with the union officials . On cross-examination, he
inconsistently testified that he first learned of Young's
union activities "two or three days after she had lunch with
the union officials [on November 51.1 15 Steward denied,
however, that Young's union activities played any part
whatsoever in him deciding to discharge her. He testified
that Florence Crozier, a checker, told him on "Tuesday"
[November 5] that Young "had gone to lunch with union
officials ." Steward also stated that he learned " later" from
employees Loreen Johnson and Mike Barrett that they had
been invited by Young to attend union meetings at her
home . This information was received by him , he testified,
before he asked the union officials to leave the store on
November 5. On his cross -examination, Steward testified
that "the other employees were the ones that informed me
Mrs. Young was the one that was spearheading the drive."
he could not remember , when customers came through Young 's checking
stand they would say to her : "Gee, you 're back . I haven 't seen you awhile.
Where have you been ? . . . And she would make a comment of, 'Yes, I'm
back but Don [Steward ] doesn't want me here ."' Although this occurred on
six occasions in his presence , testified Steward , he never reprimanded her
5 This would place his knowledge of her union activities on or about
October 21, approximately 3 weeks after Steward rehired Young.
Steward also testified on cross-examination that he sur-
mised inasmuch as Young was unable to persuade any of
the store employees to attend a union meeting at her home,
she then prevailed on the union officials to contact them at
the store, which accounts for the union representatives
going to the store on the evening of November 5.
Steward's recital of finding the two union officials in the
store talking to his employees on November 5, follows:
About 7:15 p.m. that evening, Florence Crozier "instruct-
ed" Rob Lee, a former employee, to telephone Steward at
his home and notify him that "union people were in the
back of the store with employees and had been there since
about five minutes to 7:00." The store hours were 9 a.m. to
9 p.m. When Steward arrived at the store at approximately
7:30 p.m., Crozier told him that the union representatives
were "still in the back room." When he went to the back
room, the union people were speaking to two employees.
Steward described himself and the union officials then "ex-
changing some heated words," whereupon he ordered them
to leave the store which they did. Shortly thereafter, he
telephoned Young at her home. He told her, testified Stew-
ard, that he "just threw your union officials out and I'll
discuss the matter with you in the morning." When asked
why he telephoned her, he answered: "I called Mrs. Young
because of the fact I had been told by several of the em-
ployees that she was working with the Union to unionize
the store; that she had tried to have meetings at her house
and that they had not been attended, or she could not get
the people to attend. . . . I was mad and I did not really
want to go into it over the telephone, but I planned to-the
next morning-to inform Mrs. Young she could carry out
her union activities as long as she did not do it in the store
on company time." Steward described himself as being "in
a kind of a hot temper" that evening when he telephoned
Young.
The following morning at work Steward and Young dis-
cussed his telephone call to her the previous evening. Ac-
cording to Steward, Young asked him "why I felt they were
`her union officials."' There was then "some exchange of
talk" whereupon he asked her "why did you even want to
come back to work here? She said because I have a 15
percent disability and there isn't anybody else that would
hire me that way. And I could come back to work here
.. I said, yes, I know and that's exactly why you're here
because I was told I had to put you back to work... .
[She] said, 'Do you want me to go back to work or not?'
And at that point, I said, `You can do whatever you like."'
Steward testified that he had determined to discharge
her on November 7, and that he did so the following morn-
ing. When asked what was the basis for his decision, he
answered:
... when Mrs. Young informed me that she was there
to prove that she could work and that we had to hire
her back so that she could prove it, because who else
would hire her with her 15 percent disability unless she
proved herself, that; based on the fact that the other
employees . . . had verbally told me . . . they didn't
like her there, she was causing problems; that they had
had some customer complaints-this type of thing-I
decided that I would do battle with the State on the
124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Workmen's Comp[ensation] hearing before I would
continue to have an employee that didn't really want
to work but was there to prove that she could do it and
one that was causing problems within the store.
When asked on cross-examination who were the employ-
ees who complained about Young, he replied: "By name, I
cannot tell you." When asked to name the customers who
had complained about her, he specified two women. When
asked the time, he said both of these women complained
on the same day, a "Monday of October 1974." One of
these two women, he continued, "probably" complained
two or three times . He admitted however, that he did bring
their complaints to the attention of Young. When asked if
he had ever complained to Young about the quality of her
work during her 10 years of employment, he answered:
"Umm-yes, I would say so." When asked when this oc-
curred, he lamely replied: "I can say at least once a year
.... At a store meeting, maybe." When pressed as to the
details of these complaints, he testified: "They were com-
plaints about [customers] didn't feel that they were good
enough to be waited on by Mrs. Young." When asked to
fix the time when he brought these various complaints to
Young's attention, he stated on November 6, 1974, and
"probably ... before she left our employment in 1973."
He was unable to recall the basis for the complaint in 1973
or the one on November 6, 1974, 2 days before she was
discharged.
Steward also complained that after Young incurred her
back injury in November 1972, which eventuated in sur-
gery in July 1973, that before she entered the hospital, she
was intermittently ill from May to July 1973, having weak
spells, being "lightheaded," and unable to work a full day
which caused her either to go home early or arrive at work
late. He continued that "she worked a day or two in May.
Maybe she worked a half a day in a week. And then she
would be off. She went to a doctor. Then she went to sever-
al doctors. During that time when I made out a work
schedule, I called her to find out if she wanted to work or
thought she could work. And there were times between
May and July that she put in time in our employment."
When inquiry was made on cross-examination with re-
spect to his testimony on direct that there was "dis-
agreement among the checkers" at a time prior to her un-
dergoing this operation which Steward attributed to
Young, he was asked if he complained to her about this.
His answer reads as follows : "No, as I stated in my exami-
nation, before she left our employment [in July 1973] I did
not believe that it may have been Mrs. Young and when
the undercurrent left when she left, then I decided that it
was." He testified also on cross-examination that upon
Young's return to work on September 30, 1974, there was a
reoccurrence of disagreement among the checkers which
had existed during Young's prior employment. When
asked the basis for this "disagreement," Steward replied he
did not know except that Crozier had threatened to leave
"if things continued at the checkstand area the next day as
they had that day." When asked if the disagreement were
based on Crozier's resenting Young's interest in the Union,
Steward answered that was not the reason on that particu-
lar day, but "it may have happened [on other occasions]."
Robert Petersdorf, assistant manager, characterized
Young before July 1973, when she entered the hospital, as
being "the type" of employee who refused to work after her
scheduled quitting time . He testified that "there could be
20 people in line and she would come up [to me] and she
says, `Well, I'm going home. My shift's up. Find somebody
to check.' . . . And they were standing there and she
wouldn't stay and wait [on] them." When asked if this
same attitude continued after she returned to work on Sep-
tember 30, 1974, Petersdorf answered: "I didn't really pay
too much attention." Although it was the practice for the
female checkers to invariably request the three men work-
ing in the store, including Steward, to change money for
them and to carry heavy bags and boxes of groceries to
customers' automobiles, Petersdorf, assistant manager,
nevertheless complained that Young called him "all the
time," to her checkstand to carry these heavy grocery bags
and boxes. Petersdorf incredibly testified that the number
of times Young asked for change or assistance was so un-
reasonable that he upbraided her for not calling Steward,
the coowner, instead of him. He described himself as the
"cusser" in the store, explaining that "[i]f I think
something's not right, I use the slang, and I says, `What in
the hell's wrong, why don't you ask for Don [Steward]?
... Yell for him."' When asked if he ever complained to
Steward about her inordinate demands upon him, he re-
plied that he "never did [because] I'm assistant manager. I
don't have to."
Conclusions
The question whether Respondent discriminatorily ter-
minated Young because of her union activities (as urged by
General Counsel) or because she was an unsatisfactory em-
ployee (as Respondent contends ) presents only a question
of fact . The Board and courts have repeatedly observed
that motive for an employer 's action in cases of this type is
usually determinable only by circumstantial evidence since
direct evidence of a purpose to discriminate is rarely ob-
tainable . Corrie Corp. of Charleston v. N.L.R.B., 375 F. 2d
149, 152-153 (C.A. 4, 1967), and cases cited, "It would in-
deed be the unusual case in which the link between the
discharge and the union activity could be supplied exclu-
sively by direct evidence." N.L.R.B. v. Melrose Processing
Co., 351 F.2d 693, 698 (C.A. 8, 1965). Moreover , "the rule
is well established that although ample valid grounds may
exist for the discharge of an employee, that discharge will
violate Section 8(aX3) if it was in fact motivated even par-
tially, by the employee's union activity [citing cases ]. Thus,
where there are legitimate reasons for the discharge of an
employee, the question is whether those were in fact the
only grounds for the dismissal , or whether they were 'put
forth as a mere pretext to justify an impermissible dis-
charge."' N.L.R.B. v. The Pembeck Oil Corp., 404 F.2d
105, 109-110 (C.A. 2, 1968). See also N.L.R.B. v. Symons
Manufacturing Co., 328 F. 2d 835, 837 (C.A. 7, 1964).
Based on the entire record , but particularly in view of
the considerations set forth below, it is found that the cred-
ited evidence and reasonable inferences to be drawn there-
from establish that the discharge of Young was motivated
in substantial and controlling part by Respondent's oppo-
EMERY'S I.G.A. STORE
sition to her known union membership and sympathies.
Much of the testimony detailed above is uncontradicted.
Young was a forthright and candid witness whose testimo-
ny is consistent with the attendant circumstances in this
proceeding. Steward, on the other hand, appeared to be
neither a frank nor forthright witness, as he seemed to be
not only seeking to color his testimony but also to be dis-
torting and, perhaps, concealing facts. As a consequence,
the probity of much of his testimony might be considered
suspect . Petersdorf was a verbose witness patently given to
exaggeration. Steward's testimony, taken as a whole, is of
dubious weight. The inconsistent and contradictory rea-
sons ascribed for terminating her indicates it was pretex-
tual. Moreover, this conclusion is corroborated by the in-
comprehensible answer first given by Steward to Young
when he gave Young her paycheck and she asked if she
was fired, to which his cryptic reply was, "We just can't
make it." When she asked for the "reason" his incriminato-
ry answer was: "I have no reason. We just can't make it."
Such testimony clearly reveals that Steward had no valid
reason and that the real reason for her discharge was an
attempt by Steward to forestall union activity. Further-
more, the conclusion that her discharge was for proscribed
reasons is confirmed by Steward's telephoning Young im-
mediately after he ejected the union representatives from
the store at a time when he described himself as being
"mad," and referred to them as being "your union offi-
cials." Additional corroboration of this finding is evi-
denced by his knowledge of her union activities at least 2
weeks before her discharge.
The incidents of complaint detailed above which Stew-
ard never brought to Young's attention are remarkable in
their triviality, lacking in their specificity, and doubtful in
their verity when subjected to the searching glare of inqui-
ry. These petty incidents of complaints such as Young re-
fusing to wait on customers she allegedly did not like and,
when such customers left her checkstand, purportedly
spraying the checkstand area with a deodorizer; leaving
work when her quitting time arrived, even though custom-
ers were waiting in line to have their purchases checked,
strains one's credulity. Equally unbelievable is Steward's
testimony that Young "embarrassed" him after he rehired
her by stating to customers in his presence that he was
compelled to rehire her. Furthermore, Peterdorf's unjusti-
fied charge that she called him an inordinate number of
times for assistance in carrying heavy packages and boxes
to customers ' cars is unworthy of credence . Significant also
is the uncontroverted fact that Steward never reprimanded
her for these patently petty and fictitious derelictions. Such
unconvincing testimony leads to the conclusion that
Steward's dissatisfaction was more fanciful than real and
played no part in his decision to discharge her.6 The al-
leged grounds of discharge are so nebulous as to be insus-
ceptible of proof or disproof. It is also significant that most
of "the complaints urged against [Young] had to do with a
time concurrent with union activities occurring in
Respondent 's store looking toward organizing Re-
spondent's employees into a union." 7
6 N.L.R.B. v. Bird Machine Co., 161 F 2d 589, 592 (C.A. I).
125
Under these circumstances, it is difficult to justify
Respondent's discharge of Young. As the Court of Appeals
for the District of Columbia stated:
Such action on the part of the employer is not natural.
If the employer had really been disturbed by the cir-
cumstances it assigned as reasons for this discharge,
and had no other circumstance in mind, some word of
admonition, some caution that the offending lapse be
not repeated, or some opportunity for correction of
the objectionable practice, would be almost inevita-
ble.8
It is found, therefore, that the record in this case disclos-
es no basis for Respondent's alleged dissatisfaction with
the quality of Young's work which is persuasive of the find-
ing that Steward's decision to discharge her was made be-
cause of her protected union activities. Respondent by dis-
charging Young because of her union and concerted
activity engaged in an unfair labor practice affecting com-
merce within the meaning of Section 8(a)(3) and (1) and
Section 2(6) and (7) of the Act.
Upon the foregoing findings and conclusions, there are
hereby made the following:
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union herein is a labor organization within the
meaning of Section 2(5) of the Act.
3. By interfering with, restraining, and coercing the em-
ployees in the exercise of the rights guaranteed them in
Section 7 of the Act, the Respondent has engaged in, and is
engaging in, unfair labor practices within the meaning of
Section 8(a)(l) of the Act.
4. By discriminating with regard to the hire and tenure
of employment of Jessie Young, Respondent discouraged
membership in the aforementioned Union and committed
unfair labor practices within the meaning of Section 8(a)(3)
of the Act.
Having found that Respondent was motivated in its dis-
criminatory treatment of Jessie Young by her activities on
behalf of the Union,9 and thereby engaged in unfair labor
practices, the following action is recommended.
THE REMEDY
It is recommended that the Respondent cease and desist
from violating Section 8(a)(3) of the Act and that it offer
immediate and unconditional reinstatement to Jessie
Young to her former postion without prejudice to her se-
niority or other rights, privileges, or working conditions,
dismissing, if necessary, anyone hired in such job on or
after November 8, 1974, and make her whole for any loss
of earnings she suffered , less her net earnings , with back-
pay to be computed in accordance with the formulas pro-
vided in F. W. Woolworth Company, 90 NLRB 289 (1950),
i N.L R. B v Richter 's Bakery, 140 F.2d 870, 872 (C.A. 5), cert denied 322
U.S. 754
8 E Anthony and Sons v. N LR.B., 163 F. 2d 22, 26-27.
9 N L.R B. v. Symons Manufacturing Co., 328 F.2d 835, 837 (C.A. 7, 1964).
126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
Upon the foregoing findings of fact, conclusions of law,
and upon the entire record, and pursuant to Section 10(c)
of the Act, there is issued the following recommended:
ORDER 10
Respondent, Emery's I.G.A. Store of Florence, Inc.,
Florence, Oregon , its officers , agents, successors , and as-
signs , shall:
1. Cease and desist from:
(a) Discouraging membership in Retail Clerks Union,
Local 1188, Retail Clerks International Association, AFL-
CIO, or any other labor organization, by discriminatorily
discharging , terminating, or otherwise discriminating
against any employees with respect to their hire or tenure
of employment or any term or condition of employment
because of their activities on behalf of, or membership in,
Retail Clerks Union, Local 1188, Retail Clerks Internation-
al Association, AFL-CIO, or any other labor organization.
(b) In any other manner interfering with, restraining, or
coercing, or infringing upon the exercise of its employees'
rights guaranteed to them under Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
10 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order , and all objections thereto shall be
deemed waived for all purposes
(a) Make whole Jessie Young in the manner set forth in
the section of this Decision entitled "The Remedy" for
losses she suffered as a result of her discharge and offer her
immediate, full, and unconditional reinstatement to her
former job as a checker or substantially equivalent posi-
tion, without prejudice to her seniority or other rights, priv-
ileges , or working conditions.
(b) Preserve and, upon 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 neces-
sary to analyze the amounts of backpay due under the
terms of this Order.
(c) Post at its place of business in Florence, Oregon,
copies of the attached notice marked "Appendix." 11 Cop-
ies of said notice, on forms provided by the Regional Di-
rector for Region 19, after being duly signed by an author-
ized representative of the Respondent, shall be posted by
the Respondent immediately upon receipt thereof, and be
maintained for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by
the Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 19, in writ-
ing, within 20 days from the date of this Order, what steps
the Respondent has taken to comply herewith.
11 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"