Food King MarketDownload PDFNational Labor Relations Board - Board DecisionsJun 18, 1976224 N.L.R.B. 1158 (N.L.R.B. 1976) Copy Citation 1158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD T & M Corporation d/b/a Food King Market and Re- tail Clerks Union , Local 1434 , Retail Clerks Inter- national Association , AFL-CIO B M Miller Co d/b /a Nevada Cash & Carry and Retail Clerks Union , Local 1434 , Retail Clerks In- ternational Association , AFL-CIO Cases 20-CA- 10183 and 20-CA-10184 June 18, 1976 DECISION AND ORDER By MEMBERS JENKINS, PENELLO, AND WALTHER On March 24, 1976, Administrative Law Judge Stanley Gilbert issued the attached Decision in this proceeding Thereafter, the General Counsel filed ex- ceptions and a supporting brief Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, con- clusions, and recommendations of the Administra- tive Law Judge only to the extent consistent here- with We find merit in the exceptions of the General Counsel to the Adminstrative Law Judge's refusal to find that Respondents violated Section 8(a)(3) and (1) of the Act by reducing the hours of work of em- ployees Richard Morris and Robert Pennington in retaliation for supporting the Union We also find that Respondents' alleged economic justification for reducing Morris' and Pennington's hours of work, on which the Administrative Law Judge relied, was a pretext offered to hide the unlawful reason for the reductions In the first place, as the General Counsel correctly observes, the Administrative Law Judge failed to give proper weight to his own findings that Respon- dents had engaged in a course of massive, illegal con- duct directed against the Union and its adherents To summarize, the Administrative Law Judge found that Respondents refused to bargain in good faith with the Union after it had been certified at their Food King Market store in violation of Section 8(a)(5) and (1) of the Act, and that Respondents committed four independent violations of Section 8(a)(1) of the Act during the union organizational effort at their Ne- vada Cash and Carry Store (hereinafter referred to as Nevada Cash), including threatening to reduce the wages of employees if they selected the Union as their bargaining representative, threatening to dis- charge an employee if the Union won a representa- tion election, promising an employee an economic benefit if he did not vote for the Union in the elec- tion, and stating to an employee that Nevada Cash would never sign a contract with the Union The Ad- ministrative Law Judge also found that Respondents violated Section 8(a)(3) and (1) of the Act by dis- charging a Nevada Cash employee for his adherence to the Union It is within this context of widespread, illegal antiunion activity that Respondents' reduction of Morris' and Pennington's hours of work at Ne- vada Cash must be judged An election was held at 10 30 am on Friday, April 25, 1975, at Respondents' Nevada Cash store to determine whether employees there wished to have the Union represent them for purposes of collective bargaining About an hour before the election was to begin, Respondents' vice president, Al Tamagni, summoned employee Morris to his office Tamagni told Morris that business would be getting better and that he could guarantee him a salary of 40 hours a week if the Union lost the election' Tamagni also told Morris that Nevada Cash would never sign a contract with the Union As indicated above, the Ad- ministrative Law Judge found both these statements, made within an hour of the election, to be in viola- tion of Section 8(a)(1) Further, the Administrative Law Judge credited Morris' testimony that Tamagni repeated at this time his threat, made the previous month and found to be in violation of Section 8(a)(1), that Morris' wages would be reduced if the Union won the election Thus, Respondents' blatant antiunion attitude was especially evident just before the election was held Prior to the election, Richard Tracy, Manager of Nevada Cash, had posted in the store the work schedule for himself and his two subordinates, Mor- ris and Pennington, for the following week 2 The schedule showed that Morris was to work 40 hours during the next week Although Pennington's name appeared on the schedule, Tracy had not put him down for any certain number of hours, because he wanted to check first with Respondents to find out how many hours Pennington should be scheduled to work 3 As indicated by the tally of ballots, the only two clearly eligible voters, Morris and Pennington, voted in favor of the Union 4 About 5 minutes after the election had been concluded and the results known, 1 Morris hours of work had varied between 30 and 40 per week 2 Drawing up and posting the work schedule was one of Tracy s regular duties although he had reduced the hours of work for an employee when told to do so by Tamagni 3 Apparently Tracy usually consulted with Respondents before setting Pennington s hours which varied between 13 and 22 per week 4One individual voted subject to challenge in the election 224 NLRB No 146 FOOD KING MARKET 1159 Tamagni told Manager Tracy to get the work sched- ule and bring it to his office When Tracy arrived, Respondents' president, Ben Miller, was also in the office According to Tracy's credited testimony, either Tamagni or Miller said that they were going to have to change the schedule, and Miller commented that, "he didn't want anybody coming in and telling him how to run his business" Tamagni took the schedule from Tracy and changed Morris' hours of work from 40 to 32, and wrote in 2 hours of work for Pennington 5 Tamagni also added the name of Bever- ly Wolfe, a part-time office worker, to the schedule and put her down for 7 hours of work 6 After Tamag- ni had made these changes, Tracy took back the schedule and posted it again Respondents deny that they reduced Morris' and Pennington's hours of work because of their support for the Union Tamagni testified that he changed the work schedule as a result of a telephone call he re- ceived from his accountant at 10 a in on April 25- half an hour before the time set for the election Tamagni asserted that the accountant informed him that Nevada Cash had lost some $14,000 during the 16-week period ending March 22, 1975, and advised him to do what was necessary to reduce operating expenses After receiving this call from the accoun- tant, Tamagni stated that he changed Wolfe's hours from 14 to 7 At first, Tamagni maintained that he had lowered Morris' and Pennington's hours before the election, but later conceded that he had changed the hours only after signing the tally of ballots Unlike the Administrative Law Judge, we cannot accept Respondents' defense that they reduced Mor- ris' and Pennington's hours in an effort to cut operat- ing costs Although Respondents' business records do show that Nevada Cash had been experiencing financial difficulties, they also show that business for the month of March 1975 improved significantly over that for February Also, as the General Counsel points out and as Respondents conceded, Nevada Cash's business is highly seasonal A comparison of figures for 1974 and 1975 shows that Nevada Cash generally has its lowest sales during the January to April period, with business picking up considerably from May through the fall In fact, sales at the store increased some 40 percent in May 1975 over the pre- vious month It is odd, therefore, that Respondents would reduce the hours of work for their employees 5 Although as noted previously Tracy had not scheduled Pennington for any particular number of hours of work for the following week Tamagni testified that he reduced Pennington s hours from 14 to 2 it thus appears that Tamagni had intended to have Pennington work 14 hours the next week 6 Tracy did not schedule Wolfe s hours and while at times he put her name on the schedule she put down the number of hours she worked when she came in Apparentl) she had no regular hours of work at the very time a substantial increase in business could be anticipated Finally, in determining the va- lidity of Respondents' alleged economic justification for the reductions, it is noteworthy that the Adminis- trative Law Judge rejected this defense in deciding that Respondents had violated Section 8(a)(3) and (1) of the Act in discharging a Nevada Cash employ- ee in March 1975 This economic excuse for the hours reduction of the two employees is even more convincingly rebut- ted by the overwhelming evidence indicating that Respondents lowered Morris' and Pennington's hours in retaliation for their adherence to the Union We regard as particularly telling President Miller's statement, made at the time Tamagni changed the hours of the workers, that, "he didn't want anybody coming in and telling him how to run his business " At one point in his decision, the Administrative Law Judge refers to a discussion between Tracy and Mill- er and Tamagni on March 11, 1975 The Administra- tive Law Judge credits Tracy's testimony that during this meeting Miller started talking about the Union, and stated that, "he didn't want anybody telling him how to run his business " The Administrative Law Judge noted this statement as evidence of Respon- dents' antiunion attitude It seems obvious to us that by this remark Miller meant that he did not want the Union to be certified to represent Nevada Cash em- ployees Thus, the repetition of this statement at the time of the change in hours for Morris and Penning- ton is persuasive evidence that an unlawful purpose motivated the reductions Furthermore, Tamagni's lowering of Morris' and Pennington's hours just 5 minutes after he had learned that they had voted for the Union in the election points strongly to the con- clusion that the reductions violated the Act Also sig- nificant is Tamagni's admission that he had indeed changed the work schedule after the results of the election were known, although he had originally in- sisted that he had made the changes before the elec- tion was held Thus, in view of Respondents' extreme antiunion attitude, manifested by the commission of numerous unfair labor practices, reasonable inferences drawn from the highly suspicious circumstances surround- ing the actual reduction in hours, and the utter fail- ure of the alleged economic justification to withstand scrutiny, we find that Respondents violated Section 8(a)(3) and (1) of the Act in lowering Morris' and Pennington's hours of work because of their support for the Union ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- 1160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lations Board hereby orders that the Respondents, T & M Corporation d/b/a Food King Market, Reno, Nevada , and B M Miller Co d/b/a Nevada Cash & Carry, Sparks, Nevada , their officers , agents, successors , and assigns , shall, jointly and severally I Cease and desist from (a) Refusing to bargain in good faith with Retail Clerks Union , Local 1434 , Retail Clerks Internation- al Association , AFL-CIO, as the certified collective- bargaining representative of the employees in the fol- lowing described unit All grocery employees of Respondent Food King employed at its Reno store, exclusive of all meat department employees, guards, and super- visors as defined in the Act (b) Discouraging membership in the aforesaid Union, or any other labor organization, by discharg- ing, reducing the work hours of, or otherwise dis- criminating against, employees in any manner with regard to their hire and tenure of employment or any term or condition of employment (c) Threatening that wages will be reduced if em- ployees select the Union as their collective-bargain- ing representative (d) Threatening the discharge of an employee if the Union wins an election (e) Promising an employee an economic benefit if he refrains from voting for the Union (f) Stating to employees that they (Respondents) will never sign a contract with the Union (g) In any other manner interfering with, restrain- ing, or coercing employees in the exercise of rights guaranteed them under Section 7 of the Act 2 Take the following affirmative action designed to effectuate the policies of the Act (a) Bargain in good faith with the aforesaid Union, upon its request, as the exclusive representa- tive of the employees in the above-described appro- priate bargaining unit, and embody in a signed agreement any understanding reached, subject to the conditions with regard to the certification year set forth in the section herein entitled "The Remedy " (b) Make Terry Tracy whole for any loss of pay suffered by reason of Respondents' discriminatory discharge of him in the manner set forth in the sec- tion herein entitled "The Remedy " (c) Make Robert Morris and Robert Pennington whole for any loss of pay suffered by them by reason of Respondents' unlawful reduction of their hours of work in the manner set forth in F W Woolworth Company, 90 NLRB 289 (1950), together with 6 per- cent interest thereon in accordance with Isis Plumb- ing & Heating Co, 138 NLRB 716 (1962) (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order (e) Post at their places of business in Reno and Sparks, Nevada, copies of the attached notice marked "Appendix " I Copies of said notice, on forms provided by the Regional Director for Region 20, after being duly signed by an authorized repre- sentative, shall be posted by Respondents immedi- ately upon receipt thereof, and be maintained by them for 60 consecutive days thereafter, in conspicu- ous places, including all places where notices to em- ployees are customarily posted Reasonable steps shall be taken by Respondents to insure that said notices are not altered, defaced, or covered by any other material (f) Notify the Regional Director for Region 20, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply here- with ' In the event that 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 National Labor Relations Board shall read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain in good faith with Retail Clerks Union, Local 1434, Retail Clerks International Association, AFL-CIO, as the certified collective-bargaining representative of the employees in the following described unit All grocery employees of Respondent Food King employed at our Reno store, exclusive of all meat department employees, guards, and supervisors as defined in the Act WE WILL NOT discourage membership in the aforesaid Union, or any other labor organiza- tion, by discharging, reducing the work hours of, or otherwise discriminating against, employees in any manner with regard to their hire and ten- ure of employment or any term or condition of employment WE WILL NOT threaten that wages will be re- duced if employees select the Union as their col- lective-bargaining representative FOOD KING MARKET 1161 WE WILL NOT threaten the discharge of an em- ployee if the Union wins an election WE WILL NOT promise an employee an eco- nomic benefit if he refrains from voting for the Union WE WILL NOT state to employees that we will never sign a contract with the Union WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exer- cise of rights guaranteed them under Section 7 of the National Labor Relations Act WE WILL bargain in good faith with the afore- said Union, upon its request, as the exclusive representative of the employees in the above-de- scribed appropriate unit, and embody in a signed agreement any understanding reached WE WILL make Terry Tracy whole with 6 per- cent interest thereon, for any loss of pay °uf- fered by him by reason of our discriminatory discharge of him WE WILL make Robert Morris and Robert Pennington whole, with 6 percent interest, for any loss of pay suffered by them by reason of our unlawful reduction of their hours of work T & M CORPORATION d/b/a FOOD KING MARKET B M MILLER Co d/b/a NEVADA CASH & CARRY DECISION STATEMENT OF THE CASE STANLEY GILBERT, Administrative Law Judge Based upon a charge filed by Retail Clerks Union, Local 1434, Retail Clerks International Association, AFL-CIO, herein- after referred to as the Union, on April 30, 1975, as amend ed on June 16 and July 21, 1975, in Case 20-CA-10183, and a charge filed by said Union on April 30, 1975, as amended on June 16 and July 21, 1975, in Case 20-CA- 10184, an order consolidating said cases and a consoli4at- ed complaint were issued on July 31, 1975 Said complaint alleges that the above-named Respondents constitute a "single integrated business enterprise" and that they violat- ed Section 8(a)(1), (3), and (5) of the Act Respondents, by their joint answer, deny that they are a single integrated business enterprise and further deny that they or either of them engaged in conduct violative of the Act as alleged Pursuant to notice, a hearing was held in Reno, Nevada, on October 21 and 22, 1975 Appearances were entered on behalf of the General Counsel and Respondents Briefs were timely filed by said parties Based upon the entire record I in this proceeding and my 1 Both the complaint and answer were amended during the course of the observation of the witnesses as they testified, I make the following FINDINGS OF FACT I THE BUSINESS OF RESPONDENTS Respondent T & M Corporation d/b/a Food King Mar- ket, hereinafter referred to as Food King, is, and has been at all times material herein, a corporation duly organized under, and existing by virtue of, the laws of the State of Nevada Respondent B M Miller Co d/b/a Nevada Cash & Carry, hereinafter referred to as Nevada Cash, is, and has been at all times material herein, a corporation duly organized under, and existing by virtue of, the laws of the State of Nevada At all times material herein, Food King has maintained its principal office, retail store, and place of business in Reno, Nevada, herein called the Reno store, and is, and has been at all times material herein, engaged at said retail store and location in the sale and distribution of food prod- ucts and related products At all times material herein, Respondent Nevada Cash has maintained its principal office, wholesale and retail store, and place of business in Sparks, Nevada, herein called the Sparks store, and is, and has been at all times material herein, engaged at said wholesale and retail store and location in the warehousing, sale and distribution of food products and related products During the past year, Respondent Food King, in the course and conduct of its business operations, purchased, transferred, and delivered to its Reno store food products and other goods and materials, valued in excess of $50,000 which were transported to said store directly from suppliers located in States of the United States other than the State of Nevada During the past year, Respondent Food King, in the course and conduct of its business operations, sold and distributed products, from which it received a gross revenue which exceeded $500,000 During the past year, Respondent Nevada Cash, in the course and conduct of its business operations, purchased, transferred, and delivered to its Sparks store food products and other goods and materials, valued in excess of $50,000 which were transportea to said store directly from suppliers located in States of the United States other than the State of Nevada During the past year, Respondent Nevada Cash, in the course and conduct of its business operations sold and distributed products, from which it received a gross revenue which exceeded $500,000 It is found, based upon stipulation and testimony of Re- spondents' witnesses, as follows Respondents Food King and Nevada Cash & Carry have at all times material herein had common officers, ownership, directors, and operators, i e , Alfred Tamagni and Ben Miller Miller is president and owns 51 percent of the stock of both companies, while Tamagni is vice presi- dent and/or secretary-treasurer of both companies and owns 49 percent of the stock of both companies They hearing The General Counsels motion to correct the transcript is unop posed and is hereby granted The transcript is hereby corrected 1162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD share in the responsibility of operating both companies, including their labor policies Consequently, it is found that the two Respondents are a single-integrated enter prise 2 Sakrete of Northern California, Inc, 137 NLRB 1220, 1222 (1962), Drapery Manufacturing Co, Inc 166 NLRB 805 (1967) Based upon the above findings, Respondents are now, and at all times material herein have been, individually and collectively, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act II THE LABOR ORGANIZATION INVOLVED The Union is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act, which has not been denied by Respondents sentative of all the employees of Respondent Food King in the [said] unit In addition, the parties stipulated to the following An RC Petition in case number 20-RC-12637 was filed by Retail Clerk's Local 1434 on February 27, 1975, seeking to represent the warehouse employees at Respondent's Nevada Cash and Carry An election was conducted by the National Labor Relations Board in the above-numbered case on April 25, 1975 On May 5, 1975, Local 1434 was certified by the NLRB as the exclusive bargaining representative of all warehouse employees employed at Nevada Cash and Carry The Issues III THE UNFAIR LABOR PRACTICES Background Information The Respondents have admitted the following allega tions in the complaint All grocery employees of Respondent Food King employed at its Reno store, exclusive of all meat de- partment employees, guards and supervisors as de- fined in the Act constitutes a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act On or about March 13, 1975, a majority of the em- ployees of Respondent Food King in the [above-de- scribed] unit by a secret ballot election conducted under the supervision of the Acting Regional Director for the Twentieth Region of the National Labor Rela tions Board, designated and selected the Union as their representative for the purposes of collective bar- gaining with Respondent Food King, and on or about March 21, 1975, said Acting Regional Director certi- fied the Union as the exclusive collective-bargaining representative of the employees in said unit At all times since March 21, 1975, and continuing to date, the Union had been the exclusive representative for the purposes of collective bargaining of the em- ployees in the [said] unit and, by virtue of Section 9(a) of the Act, has been, and is now, the exclusive representative of all the employees in said unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment Commencing on or about March 31, 1975, and April 10, 1975, and continuing to date, the Union has requested Respondent Food King to bargain collec- tively with respect to rates of pay, wages, hours of employment, and other terms and conditions of em- ployment as the exclusive collective-bargaining repre- 2 While all of the above recited facts are admitted by Respondents it is denied that they have a common labor policy apparently on the ground that employees of Food King are retail clerks and employees of Nevada Cash are warehousemen The test as indicated in the Sakrete case is com mon control of labor policy which is admitted herein Following are the issues raised in this proceeding (a) Whether Respondents violated Section 8(a)(5) and (1) of the Act by refusing to bargain in good faith with respect to a collective-bargaining agreement with the Union covering the above described bargaining unit of Food King employees (b) Whether Respondents interfered with, restrained, and coerced employees of Nevada Cash within the mean- ing of Section 8(a)(1) of the Act by the following conduct (1) Warning employees of Nevada Cash in mid-March 1975 that their wages would be reduced if they did not refrain from union activities, (2) Threatening employees of Nevada Cash in mid-March 1975 with economic reprisals for union activities, (3) Promising employees of Nevada Cash, on or about April 25, 1975, benefits if they refrained from union activities, and (4) Telling employees of Nevada Cash on or about April 25, 1975, that Nevada Cash would never sign a contract with the Union (c) Whether Respondents violated Section 8(a)(3) and (1) of the Act on or about March 12, 1975, by discharging Terry Tracy, an employee of Nevada Cash, because of his union activities (d) Whether Respondents violated Section 8(a)(3) and (1) of the Act on or about April 28, 1975, by reducing the hours of employment of Nevada Cash employees Niles [Robert] Pennington and Richard Morris because of their union activities Resolution of the Issues Following are findings of fact and conclusions with re- spect to the above-outlined issues The Refusal To Bargain As stated hereinabove, the Union was certified by the Board as the bargaining agent of the above described ap- propriate bargaining unit of Food King employees on or about March 21, 1975 By letter dated March 31, 1975, addressed to Tamagni, the Union notified Food King of its certification and requested a meeting at the Union's office on April 10 1975, at 2 00 p in to begin contract negotia- tions On April 9, 1975, Miller telephoned Lance Reginato, FOOD KING MARKET 1163 the Union s president, to inform him that he would attend the requested meeting on April 10 as the representative of Food King The meeting was held as scheduled with the Union rep- resented by Regmato and Norman Nelson, organizer for the Southwestern States Council of Retail Clerks, and Food King represented by Miller The meeting com- menced by Regmato handing Miller the Union's master agreement for the Nevada area Following is Reginato's testimony as to what then ensued A After I gave it to him, I told him that it was the Union's first proposal, at which time, he told me that he was going to pay his employees all the area bene- fits, wages, just like any other Union store, but that he would never sign a contract At that point, I stopped and I asked for clarifica- tion, because I wanted to clear my mind I asked him, "Are you telling me that you never have any intention to negotiate or sign a contract with this Union9' At that point, he said, "Yes, that's right I cautioned him that it was our position that he was not negotiating in good faith, and that was the pur- pose of the meeting Q Okay A He went on further to state that he had talked to his employees in the store, and the employees had told him that they were sorry that they had ever joined the Union, or voted for the Union, and he continued to say that a Union contract gave him no flexibility He went on further to say that Nevada was a right to work state, he could deal with his employees as individuals, and that was his interpretation of right to work state Q Okay A At that point, I told him that he probably should contact an attorney, because his interpretation of right to work was a little bit different from mine, and that the Union was a certified bargaining agent, and that we went through an election and the majority voted for the Union He said, "Well, I don't know about that, but I am not going to negotiate a contract " He went on still further and he said, `Okay, I will sign any contract, as long as it has a clause in it that stipulates that I can terminate that agreement within ten days, at my discretion " I again cautioned him that I didn't think that he was negotiating in good faith, and I advised him that that was the purpose here Q Okay Proceed A And so, at that point, I pointed to the proposal, again, and I told Mr Miller that that was the Union's first proposal, it wasn't necessarily the final proposal, if there was anything in there that he disagreed with, or he didn't think he could live with, that he should take it back, read our proposal, and if there was some- thing that he didn't like about it, that he should make a counter-proposal in writing, and give us a call and set up a meeting At that point, he said, "Well, how long do I have9 Do I have six months or a year?" I told him, at that point, that we expected to hear from him within ten days At that point, he got a little irritated and said, "I thought this was all above-board I want to know ex actly how long I have " I replied that we expected an answer within ten days, and if we didn't, we would be prepared to take whatever action is necessary Then he asked me what that meant, and I told him I said, 'I don't expect you to tell me how to run my business, and I am not going to tell you how to run yours " And at that time, the meeting broke up Q Okay What time did the meeting end9 A 215pm Nelson also testified as to what occurred at the meeting and while his testimony was not as detailed as that of Regi- nato, it corroborated the substance of the latter's testimo- ny Miller s testimony with respect to the meeting may be summarized as follows that the meeting lasted a "little bit longer than 15 minutes, that he said there were points he would like to negotiate on the contract, such as "25 cent premium pay, after hours," and "time and a half on Sun- days,' that he wanted a termination clause "like 30 days, 90 days, 10 days," that he did not "come up with one definite figure" but suggested it could be negotiated, and that Reginato responded that he would not negotiate a ter- mination clause, as to the matter of a termination clause and how the meeting concluded, Miller testified as follows I said that I would like to make that a point of negoti- ation, but I never did say, flat out, that I wouldn't sign one without it I felt that it was a negotiable point, and Mr Regina- to told me that he felt that it wasn't a negotiable point, and that is where it stood JUDGE GILBERT So, you deny that you said that you would not sign a contract unless it included a termina- tion clause? THE WITNESS I did not say that Q (By Mr Ohlson) What reason did you give Mr Reginato for making the request regarding the clause9 A Well, I just purchased the store, and the finan- cial condition of the store was quite questionable, and I was taking a pretty big risk in buying the store in the first place Like I said, I did go through this with him-my economic conditions were very unstable at that time Q What reason, if any, did you give Mr Reginato for your insisting on negotiation for some kind of ter mination clause9 A I went through several things Those were ba- sically, the two biggest conditions, but that were two of the conditions, that I remember the most, that I did bring up, why I would like to negotiate that point It is noted tnat Miller's pretrial affidavit contained the following 1164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I said I would like a termination clause in the con- tract, a clause that would allow either party to termi- nate the contract with 30 days notice to the other par- ty I believe I said I would insist on this as a condition of signing a contract Miller further testified that the meeting concluded with his stating that he would come up with a counterproposal, that he never had a chance to do so because the charge was filed (on April 30), and that he assumed that he could not negotiate further until the charge was "cleared up " Regmato was a convincing witness and his testimony is credited with the exception of that portion of Miller's testi- mony that there was a discussion of premium pay and Sun- day pay, which portion of Miller's testimony is credited 3 Based upon the credited testimony, it is evident that commencing on April 10, 1975, Miller refused to bargain in good faith within the meaning of Section 8(a)(5) and (1) His insistence on a 10-day termination clause in particular, and his failure to return with a counterproposal, which he had agreed to do (on the asserted but invalid assumption that he had no duty to do so), are ample evidence that he had no intention of arriving at a meaningful collective- bargaining agreement with the Union Insulating Fabrica tors, Inc, Southern Division, 144 NLRB 1325, 1329-30 (1963), Rasco Olympia, Inc, 185 NLRB 894 (1970), First National Bank of New Smyrna Beach, 205 NLRB 281, 282, In 4 (1973), and cases referred to therein The 8(a)(1) Allegations All of the 8(a)(1) allegations as well as the remaining allegations are with respect to Respondents conduct relat ing to employees of Nevada Cash At the end of February 1975, the staff of Nevada Cash consisted of three persons Manager Richard Tracy 4 and stock clerks Richard Moms and Terry Tracy 5 At that time Morris was making $3 75 per hour and most frequently worked 40 hours per week d His schedule was 9 a m to 6 p in for 5 consecutive days a week with 2 consecutive days off Terry Tracy was making $3 50 per hour and worked between 6 and 40 hours a week, apparently depending on the workload (During the first 10 weeks of the year he worked 40 hours per week only 1 week and the other 9 weeks he worked between 6 and 32 hours per week) Morris contacted a union representative, and on Febru- ary 20 signed an authorization card on the premises of Nevada Cash Two days later, on February 22, Terry Tracy did the same thing On February 25, the Union sent a letter to Miller at Nevada Cash, stating it represented a majority of Respondents' employees at that location and requesting recognition Tamagni responded to the request the follow- ing day, February 26, by a letter in which he stated that he was ignoring the request because the Union had no author- ity to organize Nevada Cash employees since they were warehousemen, not grocery clerks As above stated, on February 27, the Union filed a petition for an election with the NLRB seeking to represent the employees at Nevada Cash In the second week of March, when Morris reported for work and checked into Manager Tracy's office, he found a copy of a union contract (apparently the standard area contract) on the desk with an attached note addressed to Manager Tracy advising him to have Morris read the con- tract According to his testimony, Morris read the contract and observed that the pay for employees such as himself was set at $3 26 per hour The following day, Tamagni approached Morris at the cash register and asked if he had read the contract When Morris replied that he had, Tam- agni stated that if employees voted for the Union, their top wage would be $3 26 per hour (approximately 50 cents less than Morris was currently making) This amounts to a threat of loss of benefits if the Union became the employ- ees' bargaining representative and constitutes a violation of Section 8(a)(1) of the Act I am of the opinion that Miller wa- laboring under the mistaken assumption that employ- ees would be limited to the standard area contract rates which, however, would not constitute a defense, even if it were asserted It appears from the credited tesitmony of Richard Tracy, the manager, that there was a recurring problem in the store because it was frequently understocked, which creat- ed customer complaints It further appears that the work- load rose and fell with the fluctuation in the inventory and the variations in the amount and frequency of deliveries from suppliers It also appears that Richard Tracy threat- ened to quit and that on March 11 he was called into a conference with Tamagni and Miller In the course of their discussion about problems in the store,? Miller started talk- ing about the Union and made the statement that "he didn't want anybody telling him how to run his business " This statement by Miller is noted only for the fact that it is indicative of Respondents' hostility toward the Union Terry Tracy was laid off on March 12, and on March 15 Robert Pennington commenced working at Nevada Cash, doing the same work as had been performed by Terry Tra- cy Pennington testified that at the end of March, after he received his first paycheck as an employee of Nevada Cash,8 he complained to Tamagni about being placed on an hourly basis Pennington further testified that after his complaint was cleared up the conversation turned to the forthcoming union election and that Tamagni stated "that if there was a yes vote in the warehouse, there would be an opening in the warehouse " It appears that while manage- ment was aware of the prounion attitude of Morris and Terry Tracy, it had no knowledge, or at least was not cer- 3 Although there was no reference to such a discussion in his preheating affidavit Miller was a convincing witness in that aspect of his testimony 4 Richard Tracy s supervisory status was conceded at the hearing by Re spondents He was the only salaried employee at the store and had the responsibility of arranging the work schedules of the other two men Terry Tracy is Richard Tracy s brother 6 During the first 17 weeks of the year he worked 40 hours a week for 12 of the weeks and between 30 to 35 hours the other 5 weeks 7 They also discussed the layoff of his brother Terry Tracy which oc curred the following day This portion of their discussion will be considered herembelow with regard to the allegation of the discriminatory discharge of Terry Tracy 8 He had prior to his employment at Nevada Cash worked on a salary basis at Payless Maintenance another enterprise jointly owned and operat ed by Miller and Tamagni FOOD KING MARKET tam, of Pennington's prounion attitude 9 Tamagni de lied making the statement to which Pennington testified, and testified that he did advise Pennington "about March 12 or 10" that there would be an opening in the warehouse Pennington was the more convincing witness and his tes- timony is credited Based upon his credited testimony, it is found that Respondents violated Section 8(a)(1) of the Act by threatening toward the end of March that there would be a discharge of an employee if the Union won the elec- tion Morris testified that on the day of the election (April 25) he was summoned to Tamagni's office about an hour prior to the time set for the election and had a conversation with Tamagni His testimony as to their conversation is as fol- lows We started out with the financial situation at Ne- vada Cash and Carry He said that they didn't make that much money, but it would be paid off in June, and he said that things would be getting better and he could guarantee me a salary of-well, 40 hours a week He went through all the benefits, comparing general benefits, and things like that He told me that Unions were bad for the employees because they caused friction between the emplo1er and employees, and he said that the only person they hurt was the employee He also stated, at that time, that he wanted to deal with the people that worked for him, on a personal basis, too He also stated that that was why he would never sign a contract He, Mr Miller, would never sign a contract, for Nevada Cash and Carry or Nevada Food King JUDGE GILBERT Did he mention both stores" THE WITNESS Yes Q (By Ms Clements) Do you recall anything fur- ther about that conversation9 A No Q Do you recall any reference to your wage scale, Mr Morris9 A I was informed- JUDGE GILBERT By whom9 THE WITNESS I was informed by Mr Tamagni that if the Union was approved or voted in,-to Nevada Cash and Carry, that my pay would be $3 26 per hour, and that would be all he could afford to pay me It does not appear that Tamagni was questioned about the above-quoted testimony and therefore said testimony was uncontradicted In any event, Morris was a convincing witness in giving said testimony and it is credited Based upon said credited testimony, it is found that Respondents violated Section 8(a)(1) of the Act by promising Morris an economic benefit (a salary of 40 hours per week) in the event the Union lost the election Although the promise, in 9 Tamagni testified that Pennington told him that he didn t like unions and dust wanted to work Tamagni further testified that he did not know what Pennington s attitude was that he didn t really wt too much credibil ity to his statement 1165 a sense, was predicated on the future financial situation of Nevada Cash, it appears appropriate to infer from the con- text in which the promise was made that it was also predi- cated on the Union's failure to win the election Conse- quently, it is concluded that General Counsel has proved by a preponderance of the evidence that Respondents vio- lated Section 8(a)(1) of the Act on April 25, 1975, by prom- ising an economic benefit to an employee if he refrained from voting for the Union It is further found, based upon the above credited testi- mony of Morris, that Respondents violated Section 8(a)(1) of the Act by threatening that Nevada Cash "would never sign a contract" with the Union 10 Said threat constituted interference with, restraint, and coercion of employees within the meaning of Section 8(a)(1) of the Act since it would reasonably cause employees to believe that their at- tempt to obtain union representation would be futile As to Morris' testimony of the statement of the limita- tion of wages to $3 26 per hour, no finding is made with respect thereto There was no allegation with respect there- to, nor was the incident fully litigated, and, in any event, in view of a finding hereinabove of a violation with respect to a similar statement made earlier, a finding of the same violation at a later date would not alter or add to the reme- dy which will be recommended The 8(a)(3) and (1) Allegctaons (The Discharge of Terry Ti icy) As stated above, it is alleged that Terry Tracy was dis- criminatorily discharged on March 12, 1975 It appears that there is no contention that Respondents were not aware of his prounion attitude, but rather the record re- veals that they had such knowledge In their brief, Respon- dents contend that he was laid off 11 for economic reasons Terry Tracy was forewarned by his brother, Manager Tra- cy, that he was going to be `laid off " As indicated herein- above, Manager Tracy was so advised during his discus Sion with Tamagni and Miller on March 11 Manager Tracy testified that they told him that they were aware that one of his problems was that he was having difficulty get- ting his brother to work While he testified that he was not having any difficulty with his brother, he further testified that he did not deny their assertion of that fact and that he asked to have a week to "straighten things out," but that he was denied the request and was told that it had been decid- ed to lay off his brother Terry Tracy testified that his brother informed him of the possibility of his being laid off and that he went to Tamagni in the morning of March 12, ostensibly to discuss the matter with him Terry Tracy's testimony as to their conversation is as follows I went in and I asked Mr Tamagni why I was getting 10 Since the allegation was limited to Nevada Cash and it cannot be said that the incident was fully litigated it does not appear appropriate to make a finding that the Act was violated by a similar threat with respect to Food King However the statement with respect to Food King tends to bolster the finding heremabove of a violation of Sec 8(a)(5) and (1) with respect to Food King 11 It is noted that in his payroll record there is a statement that he was terminated 3/12/75 1166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD laid off, and he said that he really didn't have to go into it, and that it was his business He mentioned that he knew about my brother and I, that working together, we had difficulties getting the work done, and with the other employee that was working with me I asked him outright, I says, "Is it because I signed a card for the Union" He said, "No, Ben Miller and I have our pros and cons for the Union " He said, "There are some good points and there are some bad points " He said that as far as they were concerned, they wanted to run a non-union shop, and they heard of other places that had beaten the Union, and that is how they wanted to run their place Tracy further testified that he asked if Pennington was going to take his place and was told "that it was h s [Tam- agni's] business " On cross-examination, when aske 1 what reason Tamagni gave him for his being laid off, Tracy testi- fied as follows THE WITNESS He said that he had laid me off, and he gave me the reason of lack of work, although I knew that there was work to be done JUDGE GILBERT This was on March 12? THE WITNESS He told me to go down and file for unemployment and put down lack of work, and he would verify it when the letter got to him * * * because of a personnel cut-back I did not mention the situation between him and his brother " Did I read correctly? A Yes That was probably my best recollection JUDGE GILBERT Is it your feeling that your state- ment contains the correct facts? THE WITNESS I think the affidavit is correct Your Honor It does not appear that economic reasons could have been the reason for terminating Terry Tracy, since at the time it was decided to take such action, Respondents had planned to replace him with Pennington Respondents' ex- planation for replacing Tracy with Pennington was that Pennington was working for Payless Maintenance, "a sub- sidiary of Nevada Cash and Carry," that Pennington had more seniority than Tracy and that the workload of Payless Maintenance no longer required Pennington 's services In view of the vacillating and contradictory testimony of Respondents' witness as to the reason for Tracy's termina- tion, the replacement of Tracy by Pennington (who Re- spondents had reason to believe was not a union adherent), Respondents' knowledge of Tracy's prounion attitude, and Respondents' patent hostility toward union representation, it is concluded that Tracy was discharged in order to get rid of a known union adherent in violation of Section 8(a)(3) and (1) of the Act (which would have been an effec- tive means of defeating the Union if it left only one union adherent in a unit of two employees) Q (By Mr Ohlson) During this conversation, he told you that you were laid off for lack of work? A That's what he told me to put down on unem- ployment It is noted that he was called back to work in June 1975 and worked for 2 weeks and then voluntarily quit On cross-examination, Tamagni testified that while there were discussions of the problem Manager Tracy had with his brother, that that was not a factor in laying off Tracy, that the reason was "economic factors " However, he later admitted that in his pretrial affidavit he stated that Tracy was laid off both because of problems with his brother and economic factors Then, subsequently in cross examina- tion, he testified as follows Q Now, what reasons did you give Terry Tracy when you laid him off on March 129 A Well, I gave him the primary reason as econom- ic conditions, and the other thing I think I might have brought out was that his brother had been complain- ing about his work Q Okay Did you tell him that there was a little trouble be- tween him and his brother also? A Yes, I believe I did Q (By Ms Clements) Okay Now, I refer you, again, to the statement that was given to the NLRB, and I direct your attention to page 7 It says, "On or about March 17, I called Terry Tra- cy into my office and I informed him he was laid off (The Reduction in the Work Hours of Morris and Pennington) Manager Tracy had the duty and customarily posted the schedule of work for himself and the two warehousemen Prior to the election on Friday, April 25, 1975, he posted the schedule for the next week He credibly testified that the schedule contained three names (his and the names of the two warehousemen), that he had scheduled himself for 40 hours (as usual), and Morris for 40 hours, that he had not scheduled any hours for Pennington, that he "was going to check on what hours they [ostensibly Tamagni and Miller] wanted" him to schedule for Pennington,12 that after the election was held and the Board personnel had left (about 5 minutes) he was told to bring the schedule into the office where Miller and Tamagni were present, that one of them said they were going to have to change the schedule, that Miller said "he didn't want anybody coming in and telling him how to run his business," that Tamagni erased portions of the schedule he (Tracy) had prepared particularly the 40 hours scheduled for Morris which he changed to 32,13 that he scheduled Pennington for 2 hours, that he added the name of Beverly Wolfe, who worked various hours in the office, and put her down for 7 hours,14 12 Apparently he checked with them each week on Friday to determine how many hours he was to schedule for Pennington 13 Which he (Tracy) changed to 34 later when he needed him for an extra 2 hours because he (Tracy) had a dental appointment 14 According to Tracy he did not schedule her hours and while at times he put her name on the schedule she put down the number of hours she worked when she came in Apparently she had no regular hours of work FOOD KING MARKET and that on occasions he had reduced the working hours of Morris and his brother when he was notified by Tamagni to do so Tamagni testified about his changing the schedule on April 25 He testified that at approximately 10 am on April 25 (lust before the election was scheduled) he re- ceived a phone call from his accountant His testimony with regard thereto is as follows I received a phone call from Mr Scott, informing me that we had lost approximately $14,000 for that 16 week period [January, February, and March] With this reflection of the financial statement, he advised me, at that time, to immediately take whatever steps were necessary to make any adjustments, as far as operating costs He further testified that at approximately 10 30 he reduced the hours of Wolfe (the part-time "office girl") from 14 to 7 hours for the ensuing week, and that after the election he also reduced the hours (for the ensuing week) of Morris and Pennington, and that he did not reduce Richard Tracy's hours because he was on salary for 40 hours per week Tamagni further testified as follows THE WITNESS Like I previously testified, we had spo- ken to Rick Tracy on numerous occasions about re- ducing the payroll For some reason or other-he was either incompe- tent, as far as being able to reduce the payroll, or he was reluctant, for some other reason, which I was not aware of So, I talked to Mr Miller about that, just prior to the election It would have to be a coincidence that it happened that morning So, I went out and I grabbed the schedule and I did make the adjustment at that time I reduced the hours as I saw fit, and I had to reduce them because I had no choice THE JUDGE That being on the day of the election`? THE WITNESS It just happened to be a coincidence, and I am regretful for it now I admit that it happened then Certainly there was no intent, at that time, to effect an Unfair Labor Practice charge, because our finan- cial conditions at that time, were very precarious I wanted to change the schedule before, but it was during the process of the election, and I had received information from the accountant, and the schedule was located in the election room THE JUDGE So, the schedule was changed after the election'? THE WITNESS Yes JUDGE GILBERT Was it changed after you were given the information as to what the tally was`? 1167 THE WITNESS I don't recall I think I changed the schedule before the tally, Your Honor Q (By Ms Clements) When you changed the schedule, were the Board agents still on the premises, or had they already left'? A I don't recall Q Did you know the results of the election at the time you changed the schedule'? A No A I went out and picked up the schedule after the election, and I implemented the changes that I already had in the office JUDGE GILBERT In other words, you posted the change in the schedule, after you had signed the tally of the election, is that right`? THE WITNESS I can't recall if I posted the change on the schedule before or after the tally, Your Honor I know I had- JUDGE GILBERT You mean to tell me that you couldn't get in to get the schedule because that was where the election was being held`? THE WITNESS Yes So I obviously changed it afterwards, then JUDGE GILBERT So you must have changed it after you signed the tally of the election, is that correct, Mr Tamagni'? THE WITNESS Yes, I guess so Although, according to the credited testimony of Man- ager Tracy, he had not posted any hours for Pennington, Tamagni testified that he reduced Pennmgton's hours from 14 to 2 It is noted that for the prior 7 weeks Pennington worked for Nevada Cash, he averaged from 13 to 22 hours per week It is possible that Tamagni and Miller had antici- pated Pennington would be scheduled for 14 hours before it was decided to reduce his hours for the following week There are several factors which tend to support General Counsel's contention that Morns' and Pemmngton's hours on the April 25 schedule were discriminatively reduced (1) the apparently convenient coincidence of a phone call from Respondents' accountant dust prior to the election, (2) the timing of the changes in the schedule (lust after Respondents learned the result of the election), (3) Miller's statement at the time the schedule was changed that he did not want anyone coming in and telling him how to run his business, and (4) Tamagni's discredited testimony (which he later reversed) that the changes were made before learn- ing the results of the election On the other hand, Respondents' business records sup- port their contention that the payroll was too large for the amount of sales and took a disproportionately large part of the profits It is further noted that for the weeks following the week scheduled on April 25, Morris was scheduled from 32 to 40 hours per week until the last week he worked and Pennington was scheduled from zero to 6 hours per week for the last 6 weeks he worked after said week In his testimony, Morris complained that for the remaining weeks he worked after said week he was put on an undesirable 1168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD split shift basis it is noted, however, that Respondents credibly explained that that was done to give him the maxi- mum hours of available work by cutting Pennington's hours, because Morris was in greater need of the work While the factors recited above, which tend to support General Counsel s contention, render Respondents' actions with respect to the April 25 schedule exceedingly suspi- cious, the business records of Respondents disclose that there was economic justification therefor Furthermore, ac- cording to Manager Tracy s credited testimony, Respon dents had on previous occasions reduced the number of hours he had scheduled for the warehousemen, and I am inclined to believe that the motivating factor was to cut down overhead expenses on April 25, as apparently it was on previous occasions Consequently, I am of the opinion that the General Counsel has failed to prove by a prepon- derance of the evidence the allegation that the reduction in the work hours of Morris and Pennington was discrimina- torily motivated on in accordance with Isis Plumbing & Heating Co, 138 NLRB 716 (1962) Upon the basis of the foregoing findings of fact and upon the entire record in this proceeding, I make the fol- lowing CONCLUSIONS OF LAW 1 The Respondents are, individually and collectively, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 The Union is a labor organization within the meaning of Section 2(5) of the Act 3 The Union is, and has been at all times material here- in, the collective-bargaining representative of the employ- ees in the appropriate bargaining unit described as follows All grocery employees of Respondent Food King em- ployed at its Reno store, exclusive of all meat depart- ment employees, guards and supervisors as defined in the Act IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The unfair labor practices of the Respondents set forth in section III, above, occurring in connection with their operations set forth in section I, above, have a close, mti mate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof V THE REMEDY It will be recommended that the Respondents, jointly and severally, be ordered to cease and desist from engaging in the unfair labor practices found herein and take certain affirmative action, as provided in the recommended Order below, designed to effectuate the policies of the Act 15 In view of the findings and conclusions herein, it will be recommended that Respondents be ordered to bargain in good faith with said Union with respect to the above-de- scribed bargaining unit, upon the Union's request, and em- body in a signed agreement any understanding reached Furthermore, it is recommended that the initial period of certification be construed as beginning on the date Re- spondents commence to bargain in good faith Choc-ola Bottlers, Inc, 196 NLRB 1178, 1180 (1972) It having been found that Terry Tracy was unlawfully discharged on March 12, 1975, and rehired in June 1975, it will be recommended that Respondents be ordered to reimburse him for any loss of pay he may have suffered (between March 12, 1975, and the date he was rehired) as a result of their discriminatory action against him, in the manner set forth in F W Woolworth Company, 90 NLRB 289, 291-293 (1950) together with 6-percent interest there- 15 Both Respondents are ordered to remedy the unfair labor practices found hereinabove in view of the conclusion that they are a single employer who have jointly and severally violated Sec 8(a)(1) (3) and (5) of the Act Drapery Manufacturing Co Inc 166 NLRB 805 (1967) 4 Commencing on April 10, 1975, Respondents violated Section 8(a)(5) and (1) of the Act by refusing to bargain in good faith with the Union with respect to the aforesaid unit 5 Respondents violated Section 8(a)(3) and (1) of the Act by discharging Terry Tracy on March 12, 1975, be- cause of his adherence to the Union 6 Respondents violated Section 8(a)(1) of the Act by the following conduct with respect to employees of Nevada Cash (a) threatening that wages would be reduced if em- ployees selected the Union as their representative, (b) threatening the discharge of an employee if the Union wins the election, (c) promising an employee an economic bene- fit if he refrains from voting for the Union, and (d) stating to an employee that Nevada Cash would never sign a con- tract with the Union 7 General Counsel has failed to prove by a preponder- ance of the evidence the allegations in the complaint that Respondents unlawfully reduced the working hours of em ployees Richard Morris and Robert Pennington Upon the foregoing findings of fact, conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended ORDER 16 Respondents T & M Corporation d/b/a Food King Market and B M Miller Co d/b/a Nevada Cash & Carry, their officers, agents, successors, and assigns, shall, jointly and severally 1 Cease and desist from (a) Refusing to bargain in good faith with Retail Clerks Union, Local 1434, Retail Clerks International Associa- tion, AFL-CIO, as the certified collective-bargaining rep- 16 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 FOOD KING MARKET 1169 resentative of the employees in the following described unit All grocery employees of Respondent Food King em- ployed at its Reno store, exclusive of all meat depart- ment employees, guards and supervisors as defined in the Act (b) Discouraging membership in the aforesaid Union by discriminating in regard to hire or tenure of employment or any term or condition thereof (c) Threatening that wages will be reduced if employees select the Union as their bargaining representative (d) Threatening the discharge of an employee if the Union wins an election (e) Promising an employee an economic benefit if he refrains from voting for the Union (f) Stating to employees that they will never sign a con- tract with the Union (g) In any other manner interfering with, restraining, or coercing employees in the exercise of rights under Section 7 of the Act 2 Take the following affirmative action which is deemed necessary to effectuate the policies of the Act (a) Bargain in good faith with the aforesaid Union, upon its request, as the exclusive representative of the em- ployees in the above-described appropriate bargaining unit, and embody in a signed agreement any understanding reached, subject to the conditions with regard to the certifi- cation year set forth in the section hereinabove entitled "The Remedy " (b) Make Terry Tracy whole for any loss of pay suffered by him by reason of his discriminatory discharge in the manner set forth in the section hereinabove entitled "The Remedy " (c) 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 amount of backpay due under terms of this Order (d) Post at their places of business in Reno and Sparks, Nevada, copies of the attached notice marked "Appen- dix " 11 Copies of said notice, on forms to be furnished by the Regional Director for Region 20, shall, after being duly signed by an authorized representative or representatives of Respondents, be posted by Respondents immediately upon receipt thereof and be maintained by them 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 Respondents to insure that said notices are not altered, defaced, or covered by any other material (e) Notify the Regional Director for Region 20, in writ- ing, within 20 days from the date of this Order, what steps Respondents have taken to comply herewith It is further ordered that the allegations in the complaint that Respondents discriminated against Richard Morris and Robert Pennington by reducing their hours of work shall be, and are, hereby dismissed 17 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 Copy with citationCopy as parenthetical citation