P. G. Berland Paint City, Inc.

National Labor Relations Board - Board Decisions

Oct 24, 1972

199 N.L.R.B. 927 (N.L.R.B. 1972)

BERLAND PAINT CITY 927
P. G. Berland Paint City, Inc. and Gerhardt
swyk
Van Ry- discharge occurred immediately after the events of
August 21, 1971. On that day, while Robbins was on
P. G. Berland Paint City, Inc. and Jack W. Robbins.
Cases 13-CA-10870 and 13-CA-10919
October 24, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND PENELLO
On May 25, 1972, Administrative Law Judge 1
Paul E. Weil issued the attached Decision in this pro-
ceeding. Thereafter, the Respondent filed exceptions
and a supporting brief and the General Counsel filed
exceptions and an answering brief in support of the
Administrative Law Judge's Decision.
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
attached Decision in light of the exceptions and
briefs I and has decided to affirm the rulings, find-
ings,' and conclusions 4 of the Administrative Law
Judge, and to adopt his recommended Order 5 only to
the extent consistent with the following:
Our sole disagreement with the Administrative
Law Judge goes to his conclusion that the Respondent
discharged Jack W. Robbins in violation of Section
8(a)(3) and (1) of the Act. The allegedly unlawful
i The title "Trial Examiner" was changed to "Administrative Law Judge"
effective August 19, 1972.
2 The Respondent contends that the Administrative Law Judge wrote and
issued his Decision without adequately considering the bnef Respondent
submitted to him because only 3 days elapsed between the date the Adminis-
trative Law Judge received the Respondent 's brief and the date he issued his
Decision We find nothing in the Respondent 's assertions which negates the
Administrative Law Judge' s express affirmance that he considered
Respondent 's bnef in resolving the issues before him . Moreover, it appears
from his Decision as a whole, that the Administrative Law Judge carefully
weighed and considered the evidence adduced by the Respondent in its
behalf
3 The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge . It is the Board 's established policy not to overrule
an Administrative Law Judge 's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions were incorrect Standard Dry Wall Products, Inc, 91 NLRB 544,
enfd 188 F.2d 362 (C.A. 3) We have carefully examined the record and find
no basis for reversing his findings.
4 We deny the Respondent 's request for oral argument inasmuch as the
record and briefs, in our opinion , sufficiently reflect the facts and issues in
this proceeding and the positions of the parties.
S In the absence of exceptions thereto, we adopt , pro forma, the Adminis-
trative Law Judge 's denial of the request made by Respondent to him that
the 8 (a)(3) allegations be dismissed without regard to their merit in light of
the existence of an agreement between Respondent and the Union of a
contract containing a grievance arbitration provision.
his way to work, he was stopped and arrested by
police for a traffic offense. In the course of the arrest,
the police officers discovered that Robbins was car-
rying a loaded gun. Robbins was taken to the station
house and, while incarcerated, both the fact that he
was arrested and that he was then carrying a loaded
gun was communicated to Albert Berland, the officer
in charge of the store where Robbins was employed.
Berland decided he did not want Robbins to
come back to work and consulted his attorney on the
matter. On the next working day, Berland told Rob-
bins he was discharged because he (Berland) regarded
him as "too dangerous."
The complaint's allegations that Berland's action
in dismissing Robbins was moved by discriminatory
considerations is predicated on the theory that Ber-
land seized upon the gun incident as a convenient
pretext to rid himself of an employee he had long
resented because of his union membership and activi-
ties.
The record indisputably established, as the Ad-
ministrative Law Judge found, that Berland began
displaying considerable animus towards Robbins,
when, shortly after employing him as a potential man-
agement employee, Robbins joined the Union and
participated in the Union's 1970 strike. Thereafter,
Berland tried to discharge Robbins on a number of
occasions for alleged deficiencies or insubordinate
conduct, but found his efforts thwarted by union ac-
tion in support of Robbins. The Union told Berland
on each of these occasions that the reasons he ad-
vanced for discharging Robbins were unacceptable
under the union contract.
With each successive failure to get rid of Rob-
bins, Berland's resentment of Robbins rose . As Ber-
land admitted at the hearing, he hoped that "some
day" Robbins would "do something" that would af-
ford Berland a clearly legitimate reason for firing
Robbins and making the discharge stick. Robbins was
aware of all of this and, as the Administrative Law
Judge aptly put it, he made himself an "uncomforta-
ble employee." Indeed, during one of their numerous
altercations,. Robbins taunted Berland with state-
ments to the effect that the "only way" Berland would
succeed in getting rid of him was to offer Robbins a
year's salary in return for his resignation.
On the record it is fair to assume that the Respon-
dent entertained a desire to get rid of Robbins, whose
union activities it resented, and was pleased to have
an opportunity present itself for doing so. But that
alone is not enough to establish that the discharge was
in violation of Section 8(a)(3). The mere fact that an
199 NLRB No. 145
928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employer may want to part company with an employ-
ee whose union activities have made him persona non
grata does not per se establish that a subsequent dis-
charge of that employee must be unlawfully discrim-
inatory. If the employee himself obliges his employer
by providing a valid independent reason for dis-
charge-i.e., by engaging in conduct for which he
would have been discharged anyway-his discharge
cannot properly be labeled a pretext and ruled unlaw-
ful.
Save where the reason itself is unlawful, it is not
for the Board to substitute its judgment for that of
management as to what constitutes proper cause for
discharge. Unless the ground advanced is inherently
implausible, is unsupported by credible evidence, or
is proved by the record to have been used disparately
on the basis of unlawful considerations, its rejection
by the Board is unwarranted. In the instant case, Rob-
bins' gun-carrying activities clearly cannot be viewed
as providing an implausible ground for discharge.
Berland testified that it is contrary to company policy
for employees to carry guns on the premises and that
testimony is not inherently incredible. There is no
evidence such conduct has ever been condoned by the
Respondent. On all the foregoing evidence we find
that just cause existed for Robbins' discharge on or
about August 21, 1971. We therefore reverse the Ad-
ministrative Law Judge's findings that Robbins' dis-
charge was violative of Section 8(a)(3) and (1) and
hereby dismiss this part of the complaint.
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 Or-
der of the Administrative Law Judge and hereby
orders that the Respondent, P. G. Berland Paint City,
Inc., Chicago, Illinois, its officers, agents, successors,
and assigns, shall take the action set forth in the Ad-
ministrative Law Judge's recommended Order with
the following modification:
1. Substitute the following for paragraph 2(a):
"(a) Offer to Gerhardt Van Ryswyk immediate
and full reinstatement to his former job or, if that job
no longer exists, to a substantially equivalent position
without prejudice to his seniority or other rights and
privileges and make him whole for any loss of earn-
ings set forth in The Remedy section above."
2. Substitute the attached notice for the notice of
the Administrative Law Judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial at which all sides had a chance to give
evidence, the National Labor, Relations Board has
found that we violated the National Labor Relations
Act and has ordered us to post this notice and we
intend to carry out the Order of the Board and abide
by the following:
The Act gives all employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through representa-
tives of their choosing
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all of these things.
WE WILL NOT do anything that interferes with or
restrains or coerces employees with respect to these
rights.
WE WILL NOT discriminate against our employees
for engaging in activities on behalf of the Union or on
their own behalf.
WE WILL NOT threaten to get rid of the Union or
to change our way of doing business in order to get
rid of the employees who are represented by the Un-
ion.
WE WILL reinstate Gerhardt Van Ryswyk to his
former job or, if that position no longer exists, to a
substantially equivalent position and make him whole
for any pay he lost as a result of our discrimination
against him.
Dated By
P. G. BERLAND PAINT CITY, INC.
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain. posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Everett McKinley Dirksen Building,
Room 881, 219 South Dearborn Street, Chicago, Illi-
nois 60604, Telephone 312-353-7572.
BERLAND PAINT CITY 929
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
PAUL E. WEIL, Trial Examiner : On September 9, 1971,
Gerhardt Van Ryswyk filed a charge with the Regional
Director of Region 13 of the National Labor Relations
Board, hereinafter called the Board, alleging that P. G. Ber-
land Paint and Wallpaper City, Inc., discharged him in
violation of Section 8(a)(4), (3), and (1) of the Act (Case
13-CA-10870). On September 30, 1971, Jack W. Robbins
filed a charge alleging that P. G. Berland Paint and Wallpa-
per city, Inc., discharged him in violation of Section
8(a)(4), (3), and (1) of the Act. On October 29, 1971, the
Regional Director of Region 13 of the Board issued an order
consolidating the two cases and issued a complaint alleging
that P. G. Berland Paint City, Inc., hereinafter called Re-
spondent, discharged Van Ryswyk and Robbins in violation
of Section 8(a)(3) and (4) of the Act and that further Re-
spondent violated Section 8(a)(1) of the Act by the dis-
charges and threats of discharge, by threats that the store in
which the employees worked would be changed to a self-
service store, by threats to get rid of the Union, and by
telling an employee that he was terminated because he had
caused Respondent trouble with the Labor Board and Un-
ion. By its duly filed answer the Respondent denied the
commission of any unfair labor practice, alleged that Van
Ryswyk voluntarily quit Respondent's employment and
Robbins was terminated for cause. Respondent's answer
further contends that the instant cases should be dismissed
because the grievance and arbitration procedures in the
contract between Respondent and the Production Workers'
Union of Chicago and Vicinity, affiliated with Chicago
Truck Drivers, Helpers and Warehouse Workers Union In-
dependent, hereinafter called the Union, should be used to
determine the issue with regard to Van Ryswyk and is being
used to determine the issue with regard to Robbins. On
October 19, 1972, the Regional Director issued an order
consolidating with the cases heretofore consolidated an ad-
ditional case, Case 13-CA-11131, the charge of which was
filed December 21, 1971, by the Union. The complaint was
also amended by the addition of various allegations of viola-
tions of Section 8(a)(1) and (3) of the Act. Respondent duly
answered the amended complaint denying the commission
of any unfair labor practices and on March 30, 1972, the
said Regional Director issued an order severing Case 13-
CA-11131 from the other two cases and granting permis-
sion to the Charging Party to withdraw the charges therein.
On the same day the said Regional Director issued a new
consolidated complaint and notice of hearing again alleging
the terminations of Van Ryswyk and Robbins as violations
of Section 8(a)(1), (3), and (4) and alleging five incidents of
violations of Section 8(a)(1).
The Respondent again answered denying the commis-
sion of any unfair labor practices and the case came on for
hearing before me on April 10, 11, and 12, 1972. At the
commencement of the hearing the General Counsel with-
drew one of the independent 8(a)(l) allegations.
Respondent and the General Counsel were represented
by counsel at the hearing. The Charging Parties represented
themselves . All parties had an opportunity to call witnesses,
to adduce relevant and material evidence , to argue on the
record, and to submit briefs. Oral argument was waived by
the parties and briefs have been received from the General
Counsel and Respondent.
Upon the entire record in the case and in consideration
of the briefs, I make the following:
FINDINGS OF FACT
I BUSINESS OF THE EMPLOYER
Respondent is an Illinois corporation engaged in the
business of selling at retail and wholesale paints , wallpaper,
and.related supplies . Respondent annually purchases goods
and materials valued in excess of $50 ,000 transported di-
rectly to its store in Chicago , Illinois , from States other than
the State of Illinois . Respondent is 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 a labor organization within the meaning
of Section 2(5) of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent operates three stores in Chicago, one on
Ogden Avenue, which is the subject of this proceeding,
another on Peterson Avenue, and a third on Howard Street.
The Peterson Avenue store sells only wallpaper, no paint.
The Howard Street store is a self-service store, which sells
both paint and wallpaper. The Ogden Avenue store is a
service store in which paint and wallpaper are sold. The
Union represents the employees at the Ogden Avenue store
only.
Respondent was founded 36 years ago by P. G. Berland
and his wife Ethel. P. G. Berland is still connected with the
business, although he seems fo have taken no part in any of
the incidents litigated herein. His wife Ethel is the treasurer
of the corporation and the cashier of the Ogden Avenue
store. Their son Albert Berland, is in charge of paint sales
for the enterprise and Fred Berland, his brother, is in charge
of wallpaper sales.
The Union has represented the employees at the Ogden
Avenue store at least since 1966. The relations between the
Union and Respondent have not always been completely
amicable. It appears that a strike took place in the spring of
1970. Charges were filed in December 1970 by the Union
and a settlement ensued therefrom in February 1971. Addi-
tional charges were filed by the Union later in 1971 and
settled early in 1972. Prior to June 1971 the Company's
main offices were located at the Ogden Avenue store. In
that month they were moved to the Peterson Avenue store.
B. The Discharge of Van Ryswyk
Van Ryswyk had been a member of the Union since
he was first employed at the store. He is 73 years of age but
930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he appears to be younger. He took part in the strike in 1970
and walked the picket line. He filed a grievance in Decem-
ber 1970 which was subsequently merged into a charge
which had been filed theretofore. The charge was ultimately
settled informally and the Union withdrew it. As a result of
the settlement Van Ryswyk was paid $350 less normal de-
ductions.'
In December during the pendency of the earlier
charges Van Ryswyk became very nervous and on the ad-
vice of his doctor took a 2-week vacation in Hawaii leaving
on January 16. He returned to work February 1.
Shortly after he returned to work, according to Van
Ryswyk's testimony, Albert Berland told him in a conversa-
tion in the store that he would have to get rid of him because
Van Ryswyk caused him too much trouble with the Union
and the Labor Board. This conversation took place about
the middle of February. It is denied by Albert Berland
whom I do not credit. I note that the conversation took
place immediately after the settlement agreement in the
earlier case but before the payment to Van Ryswyk of the
backpay he received as a result of the settlement agreement.
On March 19, Van Ryswyk testified, a police officer
bought a quart of paint and paid Mrs. Berland for it. As
he left he asked Van Ryswyk for a couple of paint caps and
paddles for stirring paint which Van Ryswyk gave to him.
As he walked out the door Mrs. Berland told Van Ryswyk
that she did not get the money for those caps and paddles.
Van Ryswyk answered "he is from the District, (Police Sta-
tion), we never know when we are going to need him, let him
go," but she complained "you are giving my merchandise
away, get the hell out of here, we don't want you, we don't
need you, I don't like you." It was then 12:30 and Van
Ryswyk went to lunch. After lunch he came back and saw
Albert Berland and told him about the incident with the
officer and the caps and paddles. Berland asked "Why
didn't you give them to him?" Van Ryswyk said that he did
so but that Berland 's mother fired him. Berland said "Well,
you know how she is , forget it." However, Van Ryswyk said
that he was hurt and shook up and he was going home.
When he got home he came to the conclusion that he should
stay away from the store for a few days; he got airline
reservations for Florida where his son lived for that same
evening. At about 8 p.m. that evening immediately before
Van Ryswyk left for the airport Albert Berland called him
at his home and told him that the trouble was all straight-
ened out and that he could come to work in the morning.
Van Ryswyk answered that he was too shook up and nerv-
ous, that he was taking a few days off and going to Florida,
but he would be back in a few days, to which Berland
answered "OK, see me when you come in."
On his return 5 days later, Van Ryswyk went to the
store and punched in at his usual time in the morning. A half
hour later, Albert Berland came in and told him to get out
of there, upbraiding him, stating that he was expected to
work when Berland wanted him to work, not when Van
Ryswyk wanted to work, and stating that he never wanted
to see Van Ryswyk's face again and that Van Ryswyk had
'Although the settlement was entered into in February, Respondent's
check to Mr. Van Ryswyk for the monies paid him as a result of the settle-
ment was not drawn until April 12,197 1, and was cashed by Mr. Van Ryswyk
on May 7 of that year
caused him too much trouble with the Union and the Labor
Board. At this point P. G. Berland stepped out of his office
and told Albert Berland that there were people in the store
and, if he wanted to talk, to take Van Ryswyk into his office.
P. G. Berland went back in his office and Albert Berland
again said "Get out of here, I don't want to see you
anymore, I don't like you, you caused me too much trouble
with the Union and the Labor Board."
Albert Berland testified on direct examination that on
the day of the caps and paddles incident he was at the
Peterson Avenue store and the manager of the Ogden store,
Sheldon Stein, called him and told him that Van Ryswyk
was abusive and arrogant to Mrs. Berland and that Van
Ryswyk said that he was the manager and could do whatev-
er he wants. Stein also said that when he heard the commo-
tion he came out onto the floor and saw Van Ryswyk walk
out the door saying he was quitting and wasn't coming back.
Between 7 and 8 p.m. Berland called Van Ryswyk at his
home and asked him for his story. Van Ryswyk answered
only that it was no use, he didn't want to work there and
that he was going to Florida and then to Hawaii. Berland
said that Van Ryswyk had taken apart two paint mixers at
the Ogden Avenue store and that if he left without putting
them back together he would never take him back, but that
if Van Ryswyk wanted to come back the next morning he
could. Van Ryswyk said he was going to Florida, from there
he was going to Hawaii and he would not be back. Berland
denied saying at anytime that Van Ryswyk could come back
to work when he returned from Florida. Berland testified
that he did not again see Van Ryswyk until April 12, when
Van Ryswyk came into the store to pick up his check for
$350. Berland's testimony was that on that occasion he
could not recall what the check was for but he thought it was
for commissions that were owing to Van Ryswyk from his
period of employment.
On cross-examination Albert Berland's story was con-
siderably different. He testified that he was at the Howard
Street store on the day of the caps and paddles incident and
called Manager Stein who told him that Van Ryswyk came
back from lunch and was drunk and belligerent and arro-
gant, and when a customer came in for a quart of paint, Van
Ryswyk took a handful of paddles and a handful of caps
and said "here take them" and became very boisterous and
said he was the manager and he could do anything he want-
ed. Stein came running out from the backroom where he
was having lunch and heard Van Ryswyk say that he quit
and was not coming back because he did not have to work
there. Berland also testified that Van Ryswyk had taken one
paint shaker apart and that in the conversation with Stein
he asked whether the shaker had been fixed. He testified
that the shaker was subsequently fixed the next day by
another employee, Marshal Goldberg.
Albert Berland also testified that he did not recall
whether he had ever had any conversation with his mother
about the paint and paddle incident.
With regard to the paint and paddle incident Mrs. Eth-
el Berland testified that she saw Van Ryswyk give "a load
of paddles" to a customer to whom he should have given
only one cap and one paddle. She did not have any recollec-
tion as to who the customer was. She said to Van Ryswyk
"why did you give so many paddles, why did you do it?" He
BERLAND PAINT CITY 931
answered "well that is my job." She denied cursing at Van
Ryswyk or saying anything else and she denied that she ever
discharged anyone or told Van Ryswyk to get out of the
store. She testified that she thought that Van Ryswyk was
drunk on this occasion, that she could tell when he was
drunk, because he talked a lot and used dirty words, but she
also testified that on this occasion he did not use dirty words
or say anything to her.
On cross-examination, she testified that Van Ryswyk
gave this customer a handful of paddles, she did not know
how many, and also a handful of caps. She testified that the
caps and paddles had no price on them and were meant to
,be given away at that time, although later the policy was
changed and now they are sold. She testified that he talked
a lot on this particular occasion but she could not recall
what he said. Later in her cross-examination she testified
that Van Ryswyk did not talk to her at all after lunch, nor
did he talk to her at all prior to lunch, and she testified that
the incident took place after lunch, probably around 2:30
in the afternoon. Confronted with Van Ryswyk's timecard
which was punched out at 12:57 p.m., she testified that she
could not tell whether that was his timecard, whether it
indicated the day she had the conversation or what time she
had the conversation with Van Ryswyk. Mrs. Berland fur-
ther testified that after the conversation Van Ryswyk
walked out and said that he was through. Later in her cross-
examination she was again asked to recount the conversa-
tion and quoted herself as saying "why did you give so
many" to which Van Ryswyk answered "I am the boss." She
repeated "why did you give all those paddles?" Van Ryswyk
answered "I am the boss," and that was all that was
said .2 I believe that the story put forth by Respondent of this
incident is a fabrication. The initial testimony of Mrs. Ber-
land reveals no basis upon which Manager Stein could rea-
sonably have reported to Albert Berland either of the two
versions that he gave of the incident, nor does it reveal that
Van Ryswyk was in any way insolent or objectionable to
Mrs. Berland. Her changed story on cross-examination is
too improbable to warrant credit even if it were the only
story she gave. Stein was never called by Respondent to
testify as to what, if anything, he heard and what, if
anything, he told Albert Berland . I credit Van Ryswyk's
account of the incident.
Albert Berland denied any conversation whatsoever
with Van Ryswyk on Van Ryswyk's return from Florida
other than that Van Ryswyk called him by telephone and
asked him to stay in the store until he could get there and
Berland refused to do so. According to Berland, Van Ry-
swyk at this time said he was coming in to get his persoonal
things and was leaving to return to Florida. With regard to
the April 12 meeting, Berland denies stating to Van Ryswyk
then or at any other time that he would not permit him to
come back to work because of the trouble he had caused
Respondent with the Union and with the Labor Board, and
indeed he denied ever making such a statement or having
such an intention.
With regard the latter incident Respondent adduced
the testimony of Office Manager Theodore Janowitz who
testified that he was in the next office during most of the
conversation on April 12 and that he did not hear any
statement such as that attributed to Arthur Berland by Van
Ryswyk that Berland would not take Van Ryswyk back
because he caused him too much trouble with the Labor
Board and the Union. He also testified that he did not
remember the conversation between Van Ryswyk and Ber-
land but that Berland ordered him to make out a check in
the gross amount of $350 with the normal deductions.
Asked a second time on direct examination whether he
heard the conversation, he testified that he did remember it,
that Van Ryswyk asked for his job back, and that Berland
answered, "I won't take you back, you quit. I cannot rehire
you, I don't need you here any longer." To this Van Ryswyk
replied "give me my commission money and I will get out."
He also testified that when Berland told him to write the
check he told him it was for commissions although normally
he does not tell him the purpose of the checks Berland asks
him to write. I do not credit the testimony of Janowitz any
more than I do Berland's. It is incomprehensible to me that
Janowitz could have been unaware of the fact that the $350
check was part of the settlement of the prior unfair labor
practice case and I cannot believe that a conversation such
as that he reported could have taken place in view of the fact
that Van Ryswyk would have known very well that this was
a check that related to the settlement rather than a check for
earned commissions. It is notable, as the General Counsel
pointed out, that commissions theretofore paid Van Ry-
swyk were normally $20; the only one that exceeded that
amount was one for $40. It appears improbable therefore
that the check would have been for commissions or at
any rate that the conversations would have followed this
course .3 In any event Janowitz' alleged clear recollection
that Berland told him that the check was for commissions,
an unusual occurrence, is inconsistent with Berland's alleg-
edly clear recollection that he did not tell Janowitz nor did
Janowitz ask him what the check was for. I conclude that,
whether the conversation took place in March or April or
both, Berland in fact told Van Ryswyk that he would not
hire him because of the trouble he had caused with the
Union and with the Labor Board, and I believe that in fact
this is the reason that he refused to rehire him. It is clear
from the record as a whole that Berland was filled with
animosity to the Union. Particularly at this time when Ber-
land was paying off on a settlement of an unfair labor
practice charge brought by the Union, it is not improbable
that he took out his animosity on the recipient of the settle-
ment money. While I do not consider that Van Ryswyk's
testimony is completely credible, inasmuch as it is apparent
that he had great trouble with dates and was confused
throughout the hearing in his testimony in stating the dates
on which various occurrences took place, however, I believe
on the whole that he attempted to report the occurrences
that took place with candor to the best of his recollection.
I find that the refusal to reinstate Van Ryswyk on his
return from Florida was the result of his activities in support
3 The record does not reveal the basis on which $350 was paid in settlement
of an allegation of the unfair labor practice charge It could perhaps be that
the charge had something to do with the withholding of commissions in
which case Janowitz ' accounting would be correct if not his version of the
2 Albert Berland testified that the caps and paddles were for sale at this incident . However this does not explain the alleged inability of Berland to
time , the caps cost 10 cents each and paddles 2 cents each remember what the check for $350 was for
932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the charges filed with the National Labor Relations
Board and settled a month or two before his discharge and
because of his union activities and in order to' discourage
other employees in the exercise of their rights protected in
Section 7 of the Act, all in violation of Section 8(a)(4),
8(a)(3), and 8(a)(1) of the Act.
Van Ryswyk's relationship with Respondent did not
cease with his discharge. He had been utilized by Respon-
dent, during his tenure with it as an employee, to repair,
build, and rebuild equipment, machinery and fixtures in
Respondent's various stores. After his discharge he was
Jiired by Fred Berland to do some work on fixtures in the
Howard Street store. After working at the Howard Street
store for a period of time, he worked at the Peterson Avenue
store and after working at the Peterson Avenue store for 2
weeks he was sent to the Ogden Street store to work for
several days until, in another argument with Albert Berland,
he was again ejected from the store. Since that time he has
purchased paint on a number of occasions from the Howard
Street store and has had conversations with Albert Berland
in connection therewith. Van Ryswyk testified that in mid-
June he went to see Albert Berland at the Ogden Avenue
store and asked him if he could come back to work. Berland
said he would think it over. Berland and Van Ryswyk then
walked to the coffee machine for a cup of coffee. At the
coffee machine Van Ryswyk said, "well, think it over" and
Berland said "I will think it over but you have caused me
too much trouble with the Union and Labor Board, but I
might be able to use you at Howard Street." The General
Counsel contends that this is an independent violation of
Section 8(a)(1). Berland testified that no such conversation
ever took place. He testified further that he never saw Van
Ryswyk at the Ogden Avenue store after April 12 when he
picked up the check for $350, although Berland saw him on
Peterson Avenue on one occasion in June and again in
August, and on the latter occasion took him from the Pe-
terson Avenue store to the Howard Street store to discuss
some improvements which Van Ryswyk proposed to make
for him at that store. Berland also denies that he ever made
the statement attributed to him by Van Ryswyk mentioning
the Union or the Labor Board.
Jack Robbins testified that he was present at the occa-
sion of the conversation at the coffee machine. In his initial
testimony he did not testify to the statement attributed to
Berland that Van Ryswyk had caused him too much trouble
with the Union and the Labor Board. At a later point in his
testimony, however, Robbins appeared to recall the inci-
dent, and quoted Albert Berland in the same terminology
found in the testimony of Van Ryswyk.
While I was unimpressed with the credibility of Albert
Berland, and I believe that Van Ryswyk generally attempt-
ed to be truthful, I believe that his recollection on this
occasion may be at fault, and I do not trust the attempted
corroboration in the testimony of Robbins. Accordingly, I
do not credit Van Ryswyk's account of the incident, and I
find that the General Counsel has failed to meet his burden
of proving the allegation by a preponderance of credible
evidence. I shall recommend that this allegation be dis-
missed.4
I have credited Van Ryswyk's testimony that a similar statement was
In mid-August Van Ryswyk went with Albert Berland
to the Howard Street store . On that occasion he again asked
Berland whether he could come back to work . Berland told
him that he planned to change the Ogden Avenue store to
be self-service like the Howard Street store . Berland also
said that he would thus get rid of the Union , and he told Van
Ryswyk that he could not put him on until he got rid of the
Union in this fashion . This incident was admitted by Ber-
land, except that he denied making the statement that he
would get rid of the Union , or that he would not put Van
Ryswyk back until he had done so . I do not credit his denial
and I find that he made the statements attributed to him by
Van Ryswyk.5
C. The Discharge of Jack Robbins
Jack W. Robbins was hired to become the manager of
the Howard Street store, but because he was inexperienced
in the specific nature of Respondent's enterprise, he was
taken to the Ogden Street store as a management trainee.
He took part in the strike in 1970, joined the Union, and
walked the picket line. After the strike, which lasted 10 to
12 days, when Robbins entered the store, Berland pushed
him into an aisle, knocking his glasses off, seized him by the
neck, and demanded to know why he joined the Union,
picketed, and chased his customers away, and then told him
that he was discharged. Robbins went out into the parking
lot where there were a couple of union agents, and told them
what had happened, and one of the agents, Cappitelli, went
back into the store with him and conversed privately with
Berland, after which Robbins went back to work.
Berland testified that as part of the strike settlement,
the Union had agreed that he could lay off Robbins and two
other employees. He testified that when Robbins entered
the store, he seized him by the shoulders and wanted to
know what he was doing in the store, and told him he was
discharged, and that thereafter the union agent entered the
store and prevailed on him to accept Robbins back because
Berland and Robbins were both Jewish and he should look
after Robbins for that reason. On cross-examination, Ber-
land testified that he had been prevailed upon to retain
Robbins on another occasion by a different union agent
with the same argument. I found it unnecessary to litigate
the circumstances of the discharge which took place outside
the 10(b) period, but I credit Robbins' testimony ahout the
statements made by Berland on this occasion. I have no
doubt that he made statements of an abusive nature to
Robbins. I find that he had considerable animus against
made in February by Albert Berland. The February date, however, is more
than 6 months before the filing of the charge, and no allegation of a violation
of Section 8(a)(1) may be predicated upon it, nor is it alleged in the complaint
as a violation . It is, however, supportive of my conclusion above that Van
Ryswyk's discharge resulted from his union activities.
5 I found Albert Berland generally incredible. The internal contradictions
and improbability in his testimony, some of which are spelled out above,
convinced me that his testimony is unworthy of credit, except to the extent
that it is corroborated by otherwise credible testimony . During his cross-
examination by the General Counsel, the General Counsel adduced evidence
that in 1970 he had been convicted on a plea of guilty to counts of forging
and counterfeiting documents and making false statements on applications
for loans, and of conspiracy in violation of the United States code. While this
evidence is certainly relevant to the assessment to his credibility I do not find
it necessary to reach this consideration , and I rely on the evidence of his
conviction in no part in my discrediting of him in this and other regards.
BERLAND PAINT CITY 933
Robbins particularly , because of the strike , resulting from
Robbins' semi-managerial status with Respondent.
In May another incident occurred involving Robbins.
He had put out a number of paint rollers for a special sale.
Mrs. Berland had concluded that the paint rollers were
being sold at a loss , and ordered the store manager to re-
move them from the selling area . When Berland learned
that they were not on sale, he called the store and castigated
Robbins for taking them off the floor . Robbins told him the
circumstances . Berland came to the store and Robbins
showed him the box of rollers that had been put into the
storage area . Berland accused Robbins of insulting his
mother and discharged him. Robbins went to the union hall,
on his way stopping to tell Mrs . Berland that he had been
discharged because he allegedly had insulted her. She told
him not to worry about it and not to go to the Union, she
would talk to Berland and call him back . Nevertheless he
went to the Union . The union agent called Berland and after
a day's delay met with him. This resulted in Robbins' re-
turning to work on the following day. When he showed up
at work, Berland asked him what he was doing there. Rob-
bins answered that Gus Karlo , the union agent, had told
him it was okay to come back to work . Berland rejoined
"Oh, I didn't tell you to come back to work , get out and
come back Tuesday." The following Tuesday Robbins re-
turned to the store and started working on the rollers, when
he was tapped on the shoulder by Berland , who said "Put
my merchandise down, that is mine ." Berland then sent
Robbins to work as a stockman , loading and unloading
trucks , and working with the "warehouse gang." This lasted
for a few days , after which Robbins resumed his normal
work status . Robbins testified that at the time Berland dis-
charged him he said, "I am getting stronger , and the Union
is getting weaker."
Berland denied making the last quoted statement, and
generally admitted the incident , although he attempted to
leave the impression that the transfer to warehouse work
was either (a) part of Robbins' managerial training, or (b)
the normal shifting around of all the help for the purpose
of unloading a truck in an emergency . I do not believe either
explanation , and I find that the incident occurred substan-
tially as testified to by Robbins . There is no doubt that
throughout the period from the strike until the time of the
hearing Albert Berland resented the inhibition to his normal
domineering managerial tactics caused by the Union, and
schemed and planned to get rid of the Union at the Ogden
Street store. I find that he made the statement attributed to
him and that it violates Section 8(a)(1) of the Act.
In July late one afternoon, Robbins was working in the
roller department attempting to finish before 4:30 because
he had been instructed by Fred Berland never to work on
stock after 4:30 so that he could devote his time to the
counter and wait on trade . A newly hired manager, Sid
Shayman , directed him to clean up a litter of pails and
brushes on another counter . Robbins suggested that one of
the four paint salesmen who were not working at the time
could help him . Albert Berland who was nearby told Rob-
bins that when Sid Shayman told him to do anything he
should do it, that he was the boss , and Berland pointed out
that he paid Robbins' salary . Robbins said he would do it
but asked why he was the only one that was supposed to
work when four salesmen were standing around doing noth-
ing. Berland 's quick temper rose and he telephoned Union
Agent Gus Karlo announcing that he was going to test the
strength of the Union by firing Robbins . Berland and Karlo
talked for a few minutes and Berland walked away without
further reference to the discharge of Robbins . Berland ad-
mitted that an incident of this nature took place but denied
making the statement that he was going to test the Union
by firing Robbins . According to his testimony , the incident
took place when he reached a decision to try to remodel the
roller department . Robbins at this time refused to cooperate
with Shayman and Berland remonstrated with him and told
him to do what Shayman asked him to do. Robbins replied
"You see , you can't get rid of me and the only way you're
going to get rid of me is pay me a year's salary . You can't
tell me what to do," At this point Berland called Union
Agent Karlo and described the incident and said that he
could not get Robbins to take his orders and warned Karlo
to either straighten Robbins out or get rid of him because
Robbins thought he was a superior person because he be-
longed to the Union . Asked directly whether he said "I'm
going to test the strength of the Union by firing you," Ber-
land answered , "Well, if I fired him , I wouldn 't havc both-
ered calling Gus Karlo . So I did not."
Robbins testified that on an occasion in July or August
he was arguing with Al Berland and told him that he knew
Berland didn't like him and wanted him to quit . At this time
he offered to quit if he was given a year's severance pay
because , at his age, 60 years, he didn't know when he could
get another job. He denied that this conversation was the
same conversation in which he had been ordered by Shay-
man to clean up the tools and brushes.
Shayman was not called to testify. I conclude that the
statements that each attributed to the other were in effect
made and I believe that when Berland told Robbins to obey
Shayman's instructions Robbins told him in effect that Ber-
land couldn't fire him because the Union wouldn 't let him
do so and that he would quit if he was given a year's salary
in advance . Berland replied that he would test whether the
Union could protect Robbins in these circumstances. He
thereupon made a phone call to Karlo as a result of which
he decided not to press the discharge. I see no violation of
Section 8(a)(1) in this exchange . I believe that the union
consideration was first raised by Robbins and that
Berland's answer was what naturally could be expected
therefrom and is not coercive under the circumstances. Ac-
cordingly, I shall recommend that the complaint be dis-
missed insofar as this exchange is alleged to violate Section
8(a)(1).
Early in August Berland decided to change the method
of paying commissions so that the salesmen would have to
split their commissions with the stock boys on whom some
of the salesmen were relying to fill and deliver orders to
customer's cars . He called a meeting and announced the
change . One of the employees apparently argued with him
and was told that he was discharged although he obviously
did not stay discharged. The union agent , Gus Karlo, was
informed of the change and called Berland and told him
that he could not make a change of that nature without
negotiating with the Union and that the Union would nego-
tiate about it at the next contract term but not at that time.
934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Another meeting was called at which Berland informed
the employees that the change was rescinded. According to
Robbins' testimony at this point, Berland told the employ-
ees that he was going to turn the store into a self-service
store like that at Howard Street and get rid of the salesmen
and the Union. Berland denied that statement but admitted
saying something at the meeting about going "semi-self-
service" and that he told the employees that if they didn't
cooperate that he'd rather have the customers come in and
take what they want. I credit Robbins in this regard and
believe again Berland/was resentful of the inhibition pre-
sented by the union contract and voiced his resentment at
the employee meeting thereby violating Section 8(a)(1) of
the Act.
On the morning of Saturday, August 21, Robbins, en
route to work in his automobile, was stopped by police
because of a broken light on his car. At that time the police
found a gun in his pocket and arrested him, taking him to
the police station. According to Robbins' testimony, he told
the police that he carried a gun for protection when he went
home at night. He also testified that he never carried it at
work and it was in his pocket only because he had not taken
it out of his trousers the night before when he went home
and found a gang of juveniles loitering outside his home.
Robbins testified that after he got to the police station he
was permitted to use the public phone and called Berland
to come bail him out. Berland told him to say that he was
a security guard and they'd let him go.
According to the arresting officers, both of whom testi-
fied in this proceeding, Robbins was not permitted to use
the telephone until after they had booked him, but when
they initially stopped him he stated that he was a security
officer. They did not believe this because of his lack of other
identification and paid no heed to the claim. At any rate,
as a result of the arrest, Berland consulted his counsel and
determined to discharge Robbins and did so.
The General Counsel contends that the discharge re-
sulted from Robbins' union activities. Berland testified that
the discharge resulted from the gun incident and from other
circumstances that came to light when the gun incident
became general knowledge in the store.
Berland testified that he had three reasons for dis-
charging Robbins. First was his carrying the gun on the
store premises. The second was that he conducted his pn-
vate business on company time and on the company tele-
phone and the third was "this constant harassment of
myself and telling me about, well, dust telling me about the
work of the other people in the store, the inefficiencies."
With regard to the gun incident, Berland testified that
he was told by Seymore Kovitz, manager of the Howard
Street store, that he had seen Robbins with a gun in his
pocket in the Ogden Avenue store in July 1971 and by
Marshall Goldberg, the wallpaper manager at the Ogden
Avenue store, that he had seen Robbins in June 1971 with
a revolver in the store. Berland testified that he would not
permit an employee to carry a revolver in the store and
especially Robbins because Robbins had a quick temper
and occasionally argued with him or with customers and he
was afraid that Robbins might shoot somebody. Goldberg
testified that on some occasion in June he went to the up-
stairs storeroom where wallpaper is stored and as he walked
up the steps he came upon Robbins polishing a revolver.
Although Robbins saw him at the same time , neither of
them spoke and Goldberg never mentioned it to Berland or
anyone else until August 21. Kovitz testified that he was in
the Ogden Street store and noticed the outline of a gun in
Robbins' pocket. He asked what the gun was for and Rob-
bins answered "Oh, you will never know when you run into
a problem." Kovitz, too, testified that he never mentioned
the incident to anyone, including Berland, although he
asked Berland what the company policy was with regard to
employees carrying guns. Berland answered that there was
no policy of anyone carrying a gun, and that as far as he
knew no one carried a gun. When Robbins was arrested on
August 21 Berland mentioned the matter to Kovitz, who
then told him about seeing Robbins with a gun in his pocket
in July.
Robbins denied ever carrying a gun in the store. I credit
his denial and I discredit Kovitz and Goldberg. I find it too
difficult to believe that these two men, both supervisory
employees of Respondent, would have failed to mention
seeing an employee with a gun in the store. I further find
it unlikely that the incident Goldberg described took place,
that Robbins would have stood polishing a gun in the store-
room in Goldberg's presence and neither one of them would
have said a word about it to each other. It is even more
incredible that store manager Kovitz, on being told that no
one carried a gun, would not have mentioned the fact that
he had seen an employee carrying a gun.
The second reason given for the discharge of Robbins
was that he was carrying on business on the company tele-
phone and on company time. The business to which Re-
spondent refers to is the business of repairing musical
instruments which used to be conducted by Robbins. Rob-
bins testified that he had not repaired instruments for 5
years prior to the incidents that took place herein, and that
he, in fact, had no business, but at the time he maintained
a shop in which he also lived because of the need for storing
equipment and supplies which he had formerly used and
which were not salable. There is no evidence on the record
that Robbins ever carried on business at the store other than
store business. Berland testified rather generally that Rob-
bins used the telephone quite a bit, and that on the day of
his arrest Berland was told by other employees that Robbins
had a business repairing musical instruments, and that he
conducted his business at the store. I do not believe Berland
in this testimony. It appears that he was around the store a
great deal. In fact, he testified to noticing Robbins on the
telephone a great deal. On a number of occasions , it appears
that he was one that answered the telephone. If Robbins
had, in fact, been conducting a musical instrument repair
business on the company telephone, it could scarcely had
been avoided that it would come to Berland's attention.
None of the employees who allegedly told Berland that
Robbins was doing this were called to testify. I believe that
the whole matter was contrived by Respondent as an excuse
to support the discharge of Robbins, and I do not credit it.
The third reason given for Robbins' discharge was that
Robbins constantly harassed him, telling him about the bad
work of other employees. The only incident of this nature
that appears in evidence is an occasion when Robbins de-
clined to mix certain paint on an order taken by the store
BERLAND PAINT CITY
manager. According to Berland's testimony, Robbins de-
clined to mix it because the manager had sold it too cheap,
and Robbins complained to him about that fact. According
to Robbins' testimony, he could not mix it because the base
paint in which it was to be mixed was not available. On
cross-examination, Berland admitted that Robbins might
have mentioned the matter of the base paint to him. I con-
clude that, in fact, Robbins declined to mix the paint be-
cause of the lack of stock of the base paint, and that
thereafter a different paint was substituted. On the same
occasion, I believe Robbins complained to Berland that the
paint was being sold too cheap because it would take, as he
testified, $9 worth of coloring to mix a $5.50 gallon of paint
with the base that was available.
Berland testified that he was looking for grounds to
discharge Robbins, and when he learned about the gun
incident and the musical business being conducted on com-
pany time, he thought he might have sufficient grounds,
whereupon he called his attorney who advised him to go
ahead and fire Robbins. Berland testified that the reason he
wanted grounds to discharge Robbins was "because of his
constant harassing me, of telling me that if I dismissed him
I would have the store closed up, he would call a strike. And
unless I gave him a year's salary, that is the only way I could
get him out of the store." I have no doubt that Respondent,
and particularly Albert Berland, wanted to get rid of Rob-
bins and I think that Berland felt harassed by Robbins. I
think that he was first disenchanted with Robbins as an
employee when Robbins took part in the strike in 1970, and
that Berland thereafter resented the fact that the Union kept
him from finng Robbins over a number of incidents. Final-
ly, Berland demanded the right to fire Robbins and Karlo
told him that if he, in effect, built a case, the Union would
not contest the discharge, but that he would have to be able
to show the Union that there was valid cause for the dis-
charge. Thereafter, just as he testified, Berland was looking
for reason to discharge Robbins, and "building a case" as
suggested by Karlo. He felt that he had an adequate case
built with the gun incident and Robbins was discharged.
The question is does this constitute a discharge to discour-
age his employees in their union activity?
I conclude that the discharge violates Section 8(a)(3)
and (1) of the Act. It is clear that Respondent seized on the
various reasons for the discharge to rid itself of an employee
against whom Albert Berland had a personal animosity. The
personal animosity stemmed from a number of causes in-
cluding the fact that when, on several prior occasions, Ber-
land attempted to discharge Robbins, he was successfully
protected by going to the Union, and because he threatened
to continue to go to the Union when he felt his job was
threatened. While the record reveals that Robbins was an
unconformable employee, it does not reveal that he was
guilty of any infractions sufficient to establish cause under
the terms of the union contract, which added to Berland's
feeling that he was being harassed by Robbins and the
Union . Inasmuch as the cause of the discharge was at least
in part Robbins' union activity, the necessary affect of the
discharge must be to discourage employees in the exercise
of their protected rights and thus the discharge violates
Section 8(a)(3) and (1) of the Act.
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
935
The activities of Respondent set forth in section III,
above, occurring in connection with the Respondent's op-
erations 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
thereof.
V THE REMEDY
Having found that Respondent engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom, and take affirmative action designed to
effectuate the policies of the Act. In my opinion, a broad
cease and desist order is warranted, particularly by reason
of the discriminatory discharge and Respondent's demon-
stration of a tendency to react to the employee's union
activities by the commission of unfair labor practices.
Respondent contends that no order should be issued in
the instant case because the discharges are cognizable under
the grievance and arbitration provisions of the contract,
that the provisions had already been invoked by the Union
on behalf of Robbins and could be and should be used to
determine the issue with regard to Van Ryswyk. However,
I do not consider that the Respondent's point is well taken.
The grievance and arbitration clause may permit an arbitra-
tor to determine whether, under the terms of the contract,
good cause is shown for the discharges, but the arbitrator
would not have before him the issue before me, which is to
say whether the discharges and other violative acts which I
have found interfere with, restrain, and coerce employees in
their exercise of their protected rights, a disposition pe-
culiarly within the province of the Board. Accordingly, I
reject Respondent's contention and I recommend that an
order issue herein.
It has been found that Respondent unlawfully dis-
charged Van Ryswyk and Robbins. It will be recommended
that Respondent offer to these individuals immediate and
full reinstatement to their former positions, or in the event
those positions are no longer available, to substantially
equivalent positions, without prejudice to their seniority or
other rights and privileges, and make them whole for any
loss of earnings suffered by them by reasons of their unlaw-
ful termination, by payment to them of a sum of money
equal to that which they normally would have earned from
the date of their discharge to the date of Respondent's offer
of reinstatement, less net earnings during said period, with
backpay computed on a quarterly basis in the manner es-
tablished by the Board in F. W. Woolworth Company, 90
NLRB 289. Backpay shall carry interest at a rate of 6 per-
cent per annum , as set forth in Isis Plumbing & Heating Co.,
138 NLRB 716.
Upon the foregoing findings of fact and upon the entire
record in the case, I make the following:
936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. Respondent is 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. By discriminatorily discharging Gerhardt Van Ry-
swyk and Jack W. Robbins, thereby discouraging member-
ship in the Union, Respondent engaged in and is engaging
in unfair labor practices within the meaning of Section
8(a)(3) of the Act.
4. By the discharge of the above-named employees and
by threatening to convert the store to self-service and get rid
of the Union, and by otherwise threatening to get rid of the
Union on various occasions, Respondent has restrained and
coerced employees in the exercise of the rights protected to
them by Section 7 of the Act, and has engaged in unfair
labor practices within the meaning of Section 8(axl) of the
Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
ORDER
Respondent , P. G. Berland Paint City, Inc., its officers,
agents , successors , and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in the Production Work-
ers' Union of Chicago and Vicinity , affiliated with Chicago
Truck Drivers , Helpers and Warehouse Workers Union In-
dependent , or any other labor organization , by discharging
employees or in any other manner discriminating in regard
to hire and tenure of employment, or any term or condition
of their employment, for engaging in concerted activities
protected by Section 7 of the Act.
(b) Threatening to get rid of the Union or change the
Respondent 's manner of doing business in order to get rid
of the employees who are members of the Union.
(c) In any other manner interfering with , restraining, or
coercing 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 an agreement requiring membership in
a labor organization as a condition of employment, as au-
thorized by Section 8(a)(3) of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act.
(a) Offer to Gerhardt Van Ryswyk and Jack W. Rob-
bins immediate and full reinstatement ' to their former jobs,
or if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or other rights
and privileges and make them whole for any loss of earnings
set forth in The Remedy section above.
(b) 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 and the above-named
employees' rights to reinstatement under the terms of this
recommended Order.
(c) Post at its store on Ogden Avenue in Chicago, Illi-
nois, copies of the attached notice marked "Appendix."
Copies of said notice on forms provided by the Regional
Director for Region 13, after being duly signed by
Respondent's representative, shall be posted by Respondent
immediately upon receipt thereof and be maintained by it
for 60 consecutive days thereafter in conspicuous places
including all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by the Respon-
dent to ensure that said notices are not altered, defaced, or
covered by any other material.
(d) Notify the Regional Director for Region 13, in writ-
ing, within 20 days from the date of the receipt of this
Decision, what steps Respondent has taken to comply here-
With .6
It is further ordered that those portions of the com-
plaint as to which no violation has been found be dismissed.
6 In the event that this recommended Order is adopted by the Board after
exceptions have been filed , this provision shall be modified to read- "Notify
the Regional Director for Region 13, in writing, within 20 days from the date
of this Order, what steps the Respondent has taken to comply herewith."