Irv's Market

National Labor Relations Board - Board Decisions

Jan 30, 1971

188 N.L.R.B. 271 (N.L.R.B. 1971)

IRV'S MARKET
Irving N. Rothkin d/b/a Irv's Market and Retail
Clerks International Association , Local No. 698,
AFL-CIO. Case 8-CA-5802
January 30, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERSJ,B % ROWN AND
JENKINS
On August 14, 1970, Trial Examiner Jerry B. Stone
issued his Decision in the above-entitled proceeding,
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached
Trial Examiner's Decision. Thereafter, the Respon-
dent filed exceptions to the Trial Examiner's Decision
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 powers
in connection with this case to a three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no preju-
dicial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial
Examiner's Decision, and the entire record in the
case, including the exceptions and brief, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the Recommended
Order of the Trial Examiner and hereby orders that
Respondent , Irving N. Rothkin d/b/a Irv's Market,
Akron, Ohio, his agents , successors, and assigns, shall
take the action set forth in the Trial Examiner's Re-
commended Order .2
' Although duly served , in accordance with the Board 's Rules and Regula-
tions , with a complaint and notice of hearing in this proceeding , counsel for
the Respondent did not appear at the hearing or request a continuance. The
Trial Examiner proceeded to take the testimony of the General Counsel's
witnesses , and thereafter issued his Decision and Recommended Order. The
Respondent contends that the Trial Examiner was without power to proceed
to a hearing in the absence of Respondent 's counsel , in the General Counsel's
failure to serve a "reply" to Respondent's answer , and in the fact that alleged
identical unfair labor practice issues are now before the courts on petitions
to enforce and to review a prior order of the Board . We are of the view that
Respondent's explanation of his counsel's failure to appear lacks sufficient
merit to justify a rehearing . Nor is there merit in his contention that the Trial
Examiner was without legal authority to proceed to a hearing in the circum-
stances of this case . We find no basis for concluding that the Respondent was
denied due process.
2 In footnote I I of the Trial Examiner's Decision, substitute "20" for "10"
days.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
271
JERRY B. STONE, Trial Examiner : This proceeding,' under
Section 10(b) of the National Labor Relations Act, as
amended , was tried pursuant to due notice on June 23, 1970,
at Akron, Ohio.
The charge and amended charge were filed on March 24
and April 9 , 1970, respectively. The complaint in this matter
was issued on May 8 , 1970. The basic issues concern allega-
tions of Section 8(a)(1), (3), and (5). The specific acts of
alleged violative conduct concern the initiation and spon-
soring of a petition to have the Union removed as bargain-
ing agent, solicitation of and coercing of employees to sign
said petition , interrogation as to the signers of said petition,
termination of an employee (Joan Graham), and the refusal
to bargain collectively with the Union.
The styling of the instant proceeding and the complaint
allegations as to identity of the Employer set forth the Re-
spondent as Irving N. Rothkin and Fran Rothkin d/b/a
Irv's Market . The Respondent in this case denies that there
is a partnership. The General Counsel adduced in the record
in this case the pleadings in a prior case involving the same
parties and the same issue , the Trial Examiner's Decision
therein , the Board 's Decision and Order therein, and the
Board's Supplemental Decision and Order . See Irving N.
Rothkin d/b/a Irv's Market, Case 8-CA-5906 , as reported
in the Board 's decisions 175 NLRB No 121, and 179 NLRB
No. 140.
The General Counsel contends that the pleadings in the
above-mentioned case reveal an admission of the contended
partnership status . An examination of the pleadings and the
Trial Examiner 's Decision in such case cast great doubt on
the propriety of relying on such pleadings as admissions to
such effect . Thus , in Case 8-CA-5096 the original case
styling and complaint allegations identified the Respondent
as a partnership . The answer to the pleadings therein con-
tained in the introductory paragraph that the answer was
filed by Irving N. Rothkm d/b/a Irv 's Market set forth a
denial that "neither he , nor any of his agents , have engaged
in an unfair labor practice affecting commerce as set forth
and defined in the National Labor Relations Act," and,
however , set forth that Respondent "admits the allegations
of Paragraph 2." Paragraph 2 of the complaint involved
alleged in effect the partnership status in question herein.
The Trial Examiner's Decision in Case 8-CA-5096 indi-
cates that the styling of the . case and pleadings as to
Respondent's identity were amended at the hearing. Con-
sidering the issues herein and the foregoing, I find it proper
to take official notice of the proceeding in Case 8-CA-5096
and the documentary and oral pleadings at the hearing as
revealed by the record in such case. Such official notice
reveals that the ambiguity in the pleadings was resolved by
the General Counsels amendment of his allegations so as
to allege Respondent as a "sole proprietor " and not as a
"partnership. Upon such pleadings and motions for
amendment, the Trial Examiner made findings of fact to the
effect that the Respondent was a sole proprietor and
amended the styling of the case . The Board adopted such
finding and amendments.
Considering all of the foregoing , I find it improper to
attach weight to the pleadings in Case 8-CA-5096 for the
i The styling of this proceeding has been corrected.
188 NLRB No. 35
272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
purpose of making a finding of " artnership status ." Rath-
er, Ifind it proper to attach weight to the pleadings therein
and the findings in Case 8-CA-5096 as a basis for finding
that Respondent is a sole proprietor. Considering all of the
foregoing, I find it proper to correct the styling of the instant
case to so reflect.
All parties were afforded full opportunity to participate
in the proceeding.
Upon the entire record in the case and from my observa-
tion of witnesses, I hereby make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER 2
Irving N . Rothkin d/b/a Irv's Market operates a retail
grocery store in Akron, Ohio. His gross sales in 1967 exceed-
ed $500 ,000 either directly or indirectly from extrastate
points . Based upon the foregoing , it is concluded and found
that the Respondent is engaged in commerce within the
meaning of Section 2(6) and g(7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED 3
Retail Clerks International Association, Local No. 698,
AFL-CIO, is, and has been at all times material herein, a
labor organization within the meaning of Section 2 (5) of the
Act. It is so concluded and found.
III THE UNFAIR LABOR PRACTICES
A. Preliminary Issues
1. Supervisory status
Based upon the pleadings and admissions therein, I find
that Richard Rothkin , at all times material herein , occupied
the position of Respondent 's store managger, and is and- phas
been an agent of Respondent , and is and has been a supervi-
sor within the meaning of Section • 2(11) of the Act . It is so
concluded and found.
The pleadings place in issue whether Fran Rothkin is a
partner of the Respondent, is an agent of the Respondent,
and acts as a supervisor within the meaning of Section 2(11)
of the Act . The evidence relating to Fran Rothkin's status
as a " artner" concerns the pleadings in Case 8-CA-5096.
As indicated in the initial statement of the case and in the
business of the Employer (section I) of this Decision, I find
it improper and do not base a finding of a "partner" status
upon the pleadings in Case 8-CA-5096 . There is no evi-
dence in this case to otherwise establish such status . Accord-
ingly, the complaint allegation to such effect falls for lack
of proof.
As to the "agent" and "supervisory" status otherwise,
there is credited testimony by McCown to the effect that
Fran Rothkin and Irv Rothkin operate the store involved in
this proceeding . There is also credited testimony by Graham
2 The issue as to Respondent 's identity and the business of the Employer
was litigated in Case 8-CA-5096 . No newly discovered or additional eviden-
ce has been adduced in this proceeding . Accordingly, the findings of fact are
based upon the findings in Case 8 -CA-5096, Irving N Rothkin d/b/a Irv's
Market, 175 NLRB No. 121 and 179 NLRB No. 140.
3 The facts are based upon a composite of the credited testimony of Henni-
gin and the litigated findings in Case 8 -CA-5096, Irving N. Rothkin d/b/a
Irv's Market, 175 NLRB No. 121, and 179 NLRB 140
relating to Fran Rothkin's involvement in her (Graham's)
initial hiring.
The foregoin g establishes a prima facie case in support of
the allegations that Fran Rothkin is a supervisor and agent
of the Respondent . In this proceeding the General
Counsel's case is unopposed by testimony or other facts.
Accordingly , it is concluded and found that Fran Rothkin
is an agent and supervisor (within the meaning of Section
2(11) of the Act) of the Respondent.
2. The appropriate bargaining unit 4
All of Respondent 's regular full-time and regular part-
time employees , but excluding professional employees,
guards, and supervisors as defined in the Act , constitute a
unit appropriate for the purpose of collective bargaining
within the meaning of Section 9(b) of the Act.
3. Union's status as exclusive bargaining
representative S
As of July 12 , 1968, the appropriate bargaining unit, re-
ferred to above, was composed of Nancy Ross, Patricia
Taylor , James McDuffee , Cynthia Hennesey, and Karen
Sands.
As of July 12 , 1968, authorization cards designating the
Union as their representative for the purposes of collective
bargaining hpd been signed by each of the employees in the
appropriate bargaining unit.
At all times on and after July 12 , 1968, the Union has
been the exclusive representative of all the employees in the
appropriate bargaining unit for the purpose of collective
bargaining with respect to rates of pay, wages , hours of
employment , and other conditions of employment.
On April 30, 1969, the Board in its Decision and Order,
issued in 175 NLRB No. 121, and subsequently in its Su -
plemental Decision and Order issued on December 2, 1969,
in 179 NLRB No . 140, concluded the Union to be the
exclusive bargaining representative of the employees in the
appropriate bargaining unit, described above, within the
meaning of Section 9(a) of the Act.
4 The facts are based upon the finding of the same issue in Case 8-CA-
5096, Irving N. Rothkin d/b/a Irv 's Market, 175 NLRB No. 121, and 179
NLRB No. 140 As indicated, the unit set out herein is the unit found in the
aforementioned case. The General Counsel's complaint appears to have
followed the descriptive terms of the appropriate unit set forth in the remedial
notice required in such case . Such notice terms are drafted in a style indica-
tive of a Respondent 's notification to employees of what the appropriate unit
is Thus reference is made to "All my regular full time .. employees," instead
of to "All regular full time. employees ." First, from reading the complaint,
I find it hard to believe that anyone would have a real question as to what
appropriate unit was being described . Thus, the language as used is not really
misleading . Further the complaint otherwise refers to the case reported in 175
NLRB No. 121. The Respondent 's entire answer reveals a clear knowledge
of the background basis of the case reported in 175 NLRB No. 121. In short,
the answer to this issue appears frivolous in nature and of a "tongue in cheek"
type of humor. I find the slight error in pleading to be of insubstantial
variance from the facts and find that the pleadings placed Respondent on
clear notice of the issues herein.
3 The facts are based upon the litigated findings in Case 8 -CA-5096, Irving
N Rothkin d/b/a Irv's Market, 175 NLRB No. 121, and 179 NLRB No. 140.
There is either a minor typographical error or poor printing as to the word
in General Counsel 's complaint allegation pertaining to the word "selected."
Respondent 's pleadings alludes to the word "relected" and apparently argues
in defense of the allegation by virtue of pendency of Case 8-CA-5096 in the
Federal courts . The issue is sufficiently presented that Respondent was aware
of the question of designated status.
IRV'S MARKET
B. Refusal To Bargain Undermining the Union
Discriminatory Discharge
1. The negotiations
Subsequent to the Board's decision in 179 NLRB No. 140
issued on December 2, 1969, Hennigin, for the Union, met
with Dailey, attorney for Respondent. What occurred is
revealed by the following credited excerpts from Hennigin's
testimony.
A. Yes. I had a meeting with Mr. Daily, an attorney
for the company, on January 20 for the purpose of
negotiating a contract at which time I submitted to him
a proposala copy of the contract with Kroger Compa-
ny to serve as a model of the contract with Irv's Market.
Mr. Daily immediately told me that there would be
no union shop, no checkoff dues, there would be no
union h . ; !rh and welfare union programs and no r a-
sion program negotiated into these contracts. He
told me that he felt the unit was stale.
Our meeting lasted about an hour. I came prepared
to negotiate the day but it only lasted about an hour.
We spent ten minutes on this discussion of the contract
and the rest of the time we wasted talking about other
things that interested him.
Q. All ri t.
Now, subsequent to that did you have another bar-
gaming meeting with Respondent's representative, At-
tome y John Dailey?
A. No, I had no further meetings with him. I request-
ed certain information from him regarding employees,
their seniority dates, their current wages, their current
names and addresses and he told me that he would file
an answer or counter-proposal to my contract that I
had submitted which he did a week or two later.
However, in the meantime I found out that very
same thing that had happened the first time, one of the
Rothkin boys was circulating a petition to get rid of the
union and had influenced one of the employees to take
this petition around and I felt Mr. Daily and this com-
pany were acting in bad faith. There was no point in
my meeting with them until they were ready to act in
good faith.
Q. Okay.
Now, when you said they did the same thing they did
before, you were referring to what?
A. The Company instigating a petition to get rid of
the union in the store.
2. The letter repudiating the Union
Graham's Discharge 6
In December 1969 Respondent's store manager, Richard
Rothkin, spoke to employee McCown. What occurred is
revealed by the following credited excerpts of McCown's
testimony:
A. He wanted to know if I would write a letter to the
National Labor Relations Board saying that we didn't
want a union in the store and I asked him if that would
do any good.
He told me I would have to have five signatures on
the letter and also that I would have to have an attor-
ney. I said that I wasn't going to pay for an attorney
6 The facts are based upon the credited testimony of McCown, Graham,
Whitaker , and Stenl.
273
and he said he already had an attorney . He
T
im. me the
name of this attorney and told me to call him.
s a
A. Yes, I asked him and he said I would have to have
an attorney and I said I wouldn't pay for one. He said
"I have one." I said, "Is it Daily?" He said, "No, that's
my attorney." He said, "Your attorney will be Bob
Carabell."
s s
A. I went and got the tablet. I went back to the office
and then I went out and I told Richard Rothkin I don't
know what you want me to write in this letter. So he
came back in and showed me.
Richard Rothkin took a piece of paper and wrote on it
what he wanted McCown to have in her letter. McCown
copied this letter and Richard Rothkin tore up his paper.
The letter was as follows:
National Labor Relations Board
Dear Sirs:
We the employees of Irv's Mkt. wish to change our
representation from the Retail Clerks Union.
Thereafter during the next few weeks McCown solicited
signatures to her letter during worktime. Eventually, Mc-
Cown secured four other signatures in addition to her own
to the letter. Several of the employees either did not want
to sign or did not. Among the employees who did not want
to sign were Elva Whitaker, Rich Martin, Steril, and Gra-
ham. Whitaker and Martin, however, ultimately signed the
letter for McCown.
During the time that McCown was attempting to secure
signatures to her letter, Richard Rothkin repeatedly ques-
tioned her about her progress. During this time Richard
Rothkin spoke to Elva Whitaker about a letter to keep the
Union out, told her that there was such a letter, and asked
if she would sign the letter. Richard Rothkin also asked
Whitaker to tell Ruth Dunbar and Jerry Allen that she had
signed the letter. Later Richard Rothkin told McCown that
Whitaker would sign her letter. McCown then contacted
Whitaker about signing the letter to get the Union out.
Whitaker then signed McCown's letter.
Sometime after McCown had unsuccessfully tried to get
Steril to sign the letter to get the Union out, Richard Roth-
kin spoke to McCown. Richard Rothkin asked McCown if
she had asked Steril to sign the letter. McCown told Richard
Rothkin that she didn't think Steril would sign the letter.
Around December 17, 1969, Richard Rothkin asked Mc-
Cown if she had talked to employee Joan Graham about
signing the letter. McCown told Richard Rothkin that she
had not had a chance to do so. Richard Rothkin suggested
that she call Graham at home about the matter. McCown
telephoned Graham and asked her about signing the letter
to get the Union out. Graham told McCown that she would
not sign the letter. McCown then told Richard Rothkin that
Graham would not sign the letter to get the Union out. A
few minutes later Richard Rothkin telephoned Graham and
told her in effect that she was fired and to come and pick
up her pay. What occurred with respect to the Richard
274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rothkin-Graham conversation is revealed ^by the following
credited excerpts of Graham 's testimony.
A. He asked me to come and pick up my pay and
that he wanted to talk to me . I said, "Well, I have a lot
of things to do and I can't get away now . Couldn't we
talk on the phone now and I will pick up my pay
Monday when I come in to work?" He said that Iliad
given my answer to Nancy and he wouldn't be needing
me any longer.
Q. Did you say anything to him after that?
A. I said, "Well, I thought you had told me in that
meeting on September the 5th when I was hired that
Nancy was for the union." He said, "She is ." She has
been fighting for it for about four years . I said, "Well,
I had a phone call from her asking me to sign the paper
against the union saying that we didn't want the union
in there." I stated that she had called me about it and
he said he didn 't know anything about the paper, but
if she was doing something like that he would sure
appreciate it because he needed the signatures to keep
the union out.
Q. Was anything else said to you by Mr . Rothkin?
A. I asked him in the conversation if my work was
satisfactory . He said, "Yes, quite so." But financially
they were under a burden trying to keep the union out
and they would have to cut expenses somewhere and
this would mean the ppaarttime help which was Elva and
I, we would have to-be cut.
I said I would like to know how I got to be part time
when I was full time . He told me that I should pick up
mick ay
. I said, "Why don 't you just send it home with
Q yAll right.
At some point did somebody else get on the line?
A. Yes, r knew that somebody had picked up the
phone and was listening in but he was talking during
this period and he didn 't hear them pick it up and it was
Vicky on the extension.
Q. What did Vicky say on the extension , if anything?
A. She stated that the chickens had come in.
Q. Did Dick say anything else to Vicky?
A. He asked her how long she had been on the phone
and she said just a short while. He told her to go check
the chickens in.
Q. Did he say anything to you after that?
A. When she hung up he said , "I am not supposed
to say anything to the employees about a union or
anything, but there seems like there is a little bit of a
mixup and I will have to straighten things out.
Q. All right.
And after that did either you or he say anything
further on the telephone?
A. He just stated that I should pick up my pay and
they didn't need me any longer.
Although McCown had solicited signatures to the letter
designed to repudiate the Union , she did not contact Attor-
ney Carabell . Apparently in late January or February 1970,
Richard Rothkm spoke to McCown about the letter. Rich-
ard Rothkin asked McCown if she had seen Carabell and
mailed the letter to the NLRB. McCown told Richard Roth-
kin that she had not seen Carabell , that she had seen the
address of the NLRB in the newspaper and had mailed her
letter directly to the NLRB. Rothkin told McCown that she
would have to write another letter and give it to Carabell.
Rothkin told McCown that Carabell would write a letter to
7 The facts reveal that employee Steril picked up an extension telephone
at the store and heard part of the conversation . I am persuaded that this
explains the apparent doubletalk in Richard Rothkm 's remarks.
the NLRB to go along with her letter. McCown then wrote
a letter to the same effect as her previous letter. Thereafter,
McCown was able to secure the signature of only one other
employee to this last letter.
3. Conclusions
(a) Considering all of the foregoing, I find that the facts
overwhelmingly reveal, as alleged, that the Respondent, by
Richard Rothkin, (1) initiated and sponsored a petition (the
letter) to have the Union removed as the collective-bargain-
ing representative of its employees; (2) solicited and coerced
employees into signing said petition and solicited signatures
from employees for said petition; and (3) interrogated em-
ployees as to which of its employees had signed said peti-
tion. Such conduct is clearly violative of Section 8(a)(I) of
the Act. It is so concluded and found.
(b) Considering all of the foregoing with reference to the
question of Graham's discharge on or about December 20,
1969, I find that the facts overwhelmingly reveal that Re-
spondent discharged Graham because of her refusal to sign
a letter repudiating the Union as her bargaining representa-
tive. Such conduct has the natural effect of discouraging
union and protected concerted activity and is violative of
Section 8(a(3) and (1) of the Act.
(c) Considering all of the foregoing, Respondent's obliga-
tion to bargain with the Union as collective-bargaining
agent for its employees and the totality of Respondent's
conduct in attempting to undermine the Union by the peti-
tion or repudiation described above, and by the discharge
of Graham for her refusal to sign such petition, I find that
the facts as a whole overwhelmingly reveal that the Respon-
dent has refused to bargain collective) with the Union.
Such conduct is violative of Section 8(aX5) and (1) of the
Act.
C. Interrogation S
Jerry Allen, who had formerly worked at Miracle Mart,
was hired on October 8, 1969, by the Respondent. On Octo-
ber 9, 1969, Respondent' s agent, Fran Rothkin, spoke to
Allen at work. Fran Rothkin asked Allen if he had belonged
to the union at Miracle Mart. Allen replied that he had
belonged to a union at Miracle Mart. Fran Rothkin asked
Allen if he would join a union again . Allen told Rothkin that
he did not think that he would.
Considering the foregoing in context with all of the facts
in this case, I conclude and find that the Respondent, by
Fran Rothkm, engaged in illegal interrogation as to employ-
ee union activity or desires on or about October 8, 1969.
Such conduct is violative of Section 8(aXI) of the Act. It is
so concluded and found.
IV THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the Respondent's oper-
ations described in section I, above, have a close, intimate,
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 of
commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair
s The facts are based upon Allen 's credited testimony.
IRV'S MARKET
labor practices , it will be recommended that Respondent
cease and desist therefrom and take certain affirmative ac-
tion to effectuate the policies of the Act.
It having been found that the Respondent discharged
Joan Graham on December 17, 1969 , in violation of Section
8(a)(3) and ( 1) of the Act , the Recommended Order will
provide that Respondent offer her reinstatement to her job,
and make her whole for loss of earnings within the meaning
and in accord with the Board 's decision in F. W. Woolworth
Company, 90 NLRB 289; Isis Plumbing & Heating Co., 138
NLRB 716, except as specifically modified by the wording
of such Recommended Order.
Having found that the Respondent has refused to bargain
collectively with the Union , it will be recommended that the
Respondent , upon request , bargain with the Union as the
exclusive representative of his employees in the appropriate
unit.
Because of the character and scope of the unfair labor
practices herein found , the Recommended Order will pro-
vide that the Respondent cease and desist from the specific
unfair labor practices found, and that it cease and desist
from in any other manner *interfering with , restraining, and
coercing employees in the exercise oftheir rights guaranteed
by Section 7 of the Act.
Upon the basis of the above findings of fact and upon the
entire record in the case , I make the following:
CONCLUSIONS OF LAW
1. Irving H . Rothkin d/b/a Irv's Market, the Respondent,
is an em Io er en aged in commerce within the meaning of
Section 2(6)) and (7) of the Act.
2. Retail Clerks International Association , Local No. 698,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. By discharging Joan Graham , the Respondent has dis-
couraged union membership by discrimination in regard to
tenure of employment, thereby en in unfair labor
practices in violation of Section 8(a)(3) a
g
nd ( 1) of the Act.
4. All Respondent's regular full-time and regular part-
time employees , but excluding professional employees,
guards , and supervisors as defined in the Act , constitute a
unit appropriate for the purpose of collective bargaining
within the meaning of Section 9(b) of the Act.
5. At all times on and after July 12, 1968 , the Union has
been the exclusive representative of all the employees in said
unit for the purpose of collective bargaining with respect to
rates of pay , wages, hours of employment, and other condi-
tions of employment.
6. By refusing to bargain with the Union on and after
December 2, 1969 , Respondent engaged in unfair labor
practices within the meaning of Section 8(a)(5) of the Act.
7. By the foregoing and by interfering with , restraining,
and coercing its employees in the exercise of rights guaran-
teed in Section 7 of the Act , Respondent engaged in unfair
labor practices proscribed by Section 8(ax
8. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER 9
Upon the basis of the foregoing findings of fact and con-
clusions of law and the entire record in this case, I recom-
275
mend that Respondent , its agents , successors , and assigns,
shall:
1. Cease and desist from:
(a) Interrogating Respondent's employees concerning
their union membership , activities , and sympathies.
(b) Initiating and sponsoring a petition to have the Union
removed as the collective-bargaining representative of
Res ondent 's employees.
(c) Soliciting and coercing Respondent 's employees into
signing said petition, referred to above , and soliciting signa-
tures from the employees for said petition.
(d) Interrogating Respondent 's employees as to which of
its employees have signed such petition, referred to above.
(e) Discharging or otherwise discriminating against em-
ployees in regard to hire or tenure of employment or any
term or condition of employment, in order to encourage or
discourage membership in any labor organization.
(f) Refusing to bargain collectively with the Union as the
exclusive representative of Respondent 's employees in the
unit herein found to be appropriate.
(g) In any other manner interfering with, restraining, or
coercing Respondent 's employees in the exercise of their
rights guaranteed in Section 7 of the Act except to the extent
that such rights may be affected by lawful agreements in
accord with Section 8(a)(3) of the Act.
2. Take the following affirmative action which it is found
will effectuate the policies of the Act:
(a) Upon request bargain with Retail Clerks International
Association, Local No. 698, AFL-CIO, as the exclusive
representative of Respondent's employees in the unit herein
found appropriate and embody any understanding reached
in a signed agreement.
(b) Offer to Joan Graham immediate and full reinstate-
ment to her former position or, if such position is no longer
available , to a substantially equivalent position, without
prejudice to her seniority or other rights previously enjoyed,
and make her whole for any loss o{pay suffered by reason
of the discrimination against her, in the manner described
above in the section entitled "The Remedy."
(c) Notify Joan Graham if presently serviig in the Armed
Forces of the United States of her right to full reinstatement
upon application in accordance with the Selective Service
Act and the Universal Military Training and Service Act, as
amended , after discharge from the Armed Forces.
(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, person-
nel records and reports , and all other records necessary to
analyze the amount of backpay due under the terms of this
Recommended Order.
(e) Post at Respondent's store and offices at Akron, Ohio,
copies of the attached notice marked "Appendix."10 Copies
of said notice , on forms provided by the Regional Director
for Region 8, after being duly signed by Respondent 's repre-
9 In the event no exceptions are filed as provided by Section 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , recommendations , and Recommended Order herein shall, as
provided in Section 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.
10 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 be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sentative, shall be posted by him immediately upon receipt
thereof, and be maintained by Respondent for 60 consecu-
tive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by any
other material.
(f) Notify the Regional Director for Region 8, in writing,
within 20 days from the receipt of this Decision, what steps
have been taken to comply herewith.' I
11 In the event that this Recommended Order is adopted by the Board, this
provision shall be modified to read : "Notify the Regional Director for Re-
gion 8 , in writing, within 10 days from the date of this Order, what steps
Respondent has taken to comply herewith."
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT coercively interrogate our employees as
to their or other employees ' union membership , activi-
ties, or desires.
WE WILL NOT initiate and sponsor a petition to have
the Union removed as the collective-bargaining repre-
sentative of employees.
WE WILL NOT solicit and coerce employees into sign-
ing said petition ; nor will we solicit signatures from the
employees for said petition.
WE WILL NOT interrogate employees as to which em-
pl ees have signed such petition.
WE WILL NOT discharge or otherwise discriminate
against employees in regard to hire or tenure of em-
plo ent or any term or condition of employment, in
order to encourage or discourage membership in any
labor organization.
WE WILL NoT refuse to bargain with Retail Clerks In-
ternational Association, Local No. 698, AFL-CIO, as
the exclusive representative of employees in the bar-
gaining unit.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce employees in the exercise of their
rights guaranteed in Section 7 of the Act, except to the
extent that such rights may be affected by lawful agree-
ments in accordance with Section 8(a)(3) of the Act.
WE WILL bargain collectively , upon request, with Re-
tail Clerks International Association , Local No. 698,
AFL-CIO , as the exclusive representative of
Respondent's employees in the bargaining unit de-
scribed below with respect to rates of pay, wages, hours
of employment, and other conditions of employment
and, if an understanding is reached , embody such un-
derstanding in a signed contract . The bargaining unit
is:
All regular full-time and part-time employees,
but excluding professional employees, guards, and
supervisors as defined in the Act.
WE WILL offer to Joan Graham immediate and full
reinstatement to her former position or, if such position
is no longer available, to a substantially equivalent pos-
ition, without prejudice to her seniority or other rights
previously enjoyed, and make her whole for any loss of
pay suffered by reason of the discrimination against
her.
WE WILL notify Joan Graham if presently serving in
the Armed Forces of the United States of her right to
full reinstatement upon application in accordance with
the Selective Service Act and the Universal Military
Training and Service Act, as amended, after discharge
from the Armed Forces.
All employees are free to become or remain, or refrain
from becoming or remaining, members of Retail Clerks
International Association, Local No. 698, AFL-CIO, or any
other labor organization, except to the extent provided by
Section 8(a)(3) of the Act.
IRVING . N. ROTHKIN d/b/a IRV's
MARKET
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, 1695
Federal Office Building, 1240 East Ninth Street, Cleveland,
Ohio 44199, Telephone 216-522-3715.