Food Park

National Labor Relations Board - Board Decisions

Nov 13, 1985

277 N.L.R.B. 427 (N.L.R.B. 1985)

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