Mammoth Mart, Inc.

National Labor Relations Board - Board DecisionsApr 30, 1973

203 N.L.R.B. 339 (N.L.R.B. 1973)

BEL-AIR MART, INC. 339 Bel-Air Mart, Inc., a Subsidiary of Mammoth Mart, Inc. and Retail Store Employees Union , Local 692, Retail Clerks International Association . Cases 5- CA-5624 and 5-CA-5771 April 30, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On January 9, 1973, Administrative Law Judge Robert Cohn issued the attached Decision in this pro- ceeding. Thereafter, Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. 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 Administrative Law Judge and hereby orders that Respondent, Bel-Air Mart, Inc., a Subsid- iary of Mammoth Mart, Inc., Bel Air, Maryland, its officers , agents , successors, and assigns , shall take the action set forth in the said recommended Order ex- cept that the attached notice is substituted for the Administrative Law Judge's notice i In adopting the Administrative Law Judge 's finding with regard to un- lawful surveillance and the remedy therefor , we do not rely on the activities of Robert Gibbs. Thus, we note that the record shows other independent evidence of unlawful surveillance sufficient in itself to sustain a finding that Respondent violated Sec . 8(a)(I). In this regard , we note the uncontradicted testimony of the leading union advocate , Dorothy Himmelman , who testified that she was being watched by various of Respondent 's department managers and that Store Manager Leavitt had advised her that he had "called off the boys" subsequent to his promising her certain extra benefits if she would discontinue her campaigning for the Union. APPENDIX discharging an employee for supporting a union and by otherwise interfering with our employees' right to join and support a union: WE WILL offer full reinstatement to James Pila- chowski to his former job or, if that job no longer exists, to a substantially equivalent position, with backpay plus 6-percent interest. WE WILL NOT discharge any of you for support- ing Retail Store Employees Union, Local 692, Retail Clerks International Association, or any other union. WE WILL NOT harass or intimidate you for sup- porting Retail Store Employees Union, Local 692, Retail Clerks International Association, or any other union. WE WILL NOT Spy on your union meetings or other union activities. WE WILL NOT coercively question you about union support or union activity. WE WILL NOT unlawfully interfere with your union activities. BEL-AIR MART, INC, A SUB- SIDIARY OF MAMMOTH MART, INC. (Employer) Dated By (Representative) (Title) We will notify immediately the above-named individ- ual if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. 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 compli- ance with its provisions may be directed to the Board's Office, Federal Building, Room 1019, Charles Center, Baltimore , Maryland 21201, Telephone 301- 962-2822. NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board having found , after trial , that we violated Federal law by DECISION STATEMENT OF THE CASE ROBERT COHN, Administrative Law Judge: This consoli- dated proceeding, under Section 10(b) of the National La- 203 NLRB No. 54 340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bor Relations Act, as amended (herein the Act), was heard at Baltimore , Maryland , on October 25 and 26 , 1972,1 pur- suant to due notice . The consolidated amended complaint, issued September 25, by the General Counsel of the Nation- al Labor Relations Board , through the Regional Director for Region 5, alleges , in substance , that Bel-Air Mart, Inc., a Subsidiary of Mammoth Mart , Inc. (herein the Respon- dent or Company), violated Section 8(a)(1) and (3) of the Act through acts and conduct of its agents and supervisors more fully detailed hereinafter.2 At the hearing , all parties were represented by counsel and were afforded full opportunity to introduce relevant testimony , to examine and cross -examine witnesses, and to argue orally on the record . At the close of the hearing, counsel for the General Counsel engaged in oral argument on the record while counsel for the Respondent waived oral argument in favor of filing a written brief . Within the time allowed , both counsel filed written memoranda in support of their respective positions , which have been duly consid- ered. Upon the entire record in the case , including my observa- tion of the demeanor of the witnesses and the arguments of counsel , I make the following: FINDINGS AND CONCLUSIONS Iii THE ALLEGED UNFAIR LABOR PRACTICES A. Background Respondent's discount department store employs ap- proximately 90 employees who are engaged primarily in selling functions. As far as the record shows, none of the employees prior to 1972 had been represented for purposes of collective bargaining by any labor organization. Howev- er, in about March, employee Dorothy Himmelman com- menced an organizational campaign among the employees in an effort to have them represented for purposes of collec- tive bargaining by the Union. Thus, she talked to employees while at the store property, soliciting their membership in the Union and, beginning around the first of April, com- menced having union meetings every Wednesday night at the Holiday Inn in nearby Aberdeen, Maryland. It is the position of counsel for the General Counsel that Respon- dent opposed these activities and, through its agents and supervisors, engaged in intimidatory and coercive conduct which interfered with, restrained, and coerced employees in the exercise of rights guaranteed them in Section 7 of the Act, in violation of Section 8(a)(1) of the Act, and discnmi- natorily discharged one employee (a security guard) for attending union meetings. Accordingly, we come now to a consideration of the evidence adduced in support of such contentions. I THE BUSINESS OF RESPONDENT Respondent , a Delaware corporation , is a subsidiary of Mammoth Mart , Inc., and operates a discount department store in Bel Air , Maryland, where it is engaged in the retail sale of goods and merchandise . In the course and conduct of its business operations, Respondent , during the preced- ing 12 -month period , had gross receipts in excess of $500,000, and received from outside the State of Maryland goods and merchandise valued in excess of $50,000. Based upon the foregoing facts as alleged in the com- plaint , and not denied in the Respondent 's answer, I find that Respondent is, and has been at all times material, en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. II THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer does not deny, and I find that the Union is, and has been at all times material, a labor organization within the meaning of Section 2(5) of the Act. 1 All dates hereinafter refer to the calendar year 1972 unless otherwise specified 2 The charges giving rise to the complaint were filed by Retail Store Em- ployees Union. Local 692, Retail Clerks International Association ( herein the Union) on May 18 in Case 5-CA-5624, and on September 7 in Case 5- CA-5771 The charges were served on the Respondent , respectively, on the day following their filing with Region 5 of the National Labor Relations Board B. The Discharge of James Prlachowski Pilachowski had worked for the Company as a security guard from October 31, 1969, until he was discharged on April 17. As a guard , he wore a uniform and carried keys to the store property but did not carry a firearm or a time- box. He described his job as being one which required him to be on the lookout for shoplifting, to make sure that all doors were closed and locked at nighttime , 3 and to take deposits to the bank . He was hourly paid. At the request of Ronald Himmelman , the husband of employee Dorothy Himmelman , Pilachowski attended the union meeting at the Holiday Inn on the evening of April 5. A few days later , according to Pilachowski 's testimony, he was approached while on the job by Respondent's per- sonnel manager , Alan Lerner. Lerner advised him that Pila- chowski was "considered management ," and that he was to "offer no opinion to the girls as to whether or not they should join the union." 4 i He was the only guard who worked during the evening shift, two other guards worked during the day shift Neither of the guards was a supervisor over the others, all reported directly to the store manager Lerner testified that on or about April 5 he held a meeting with the store manager, assistant store manager , and department heads of the store, includ- ing the security guards , in which he made them aware that they were not to become involved in any union discussion or give advice "pro or con" about the Union, or to attend any union meetings Pilachowski denied that Lerner told him that he was not to attend a union meeting I deem it unnecessary for the purpose of deciding the ulhmdte issue of discrimination to resolve this particular difference in testimony , however, were it necessary , I would re- solve it in favor of Pilachowski who impressed me as an honest and forthright witness In addition, I have considered the circumstance that Lerner 's testi- mony was not corroborated by that of any other representative of manage- ment BEL-AIR MART, INC. Pilachowski attended another union meeting the next Wednesday evening , April 12. The following Monday he was paged by Store Manager Leavitt to come into his office. There, Leavitt confronted Pilachowski with the assertion that the latter had attended two union meetings, and he admitted that he had done so. Whereupon, Leavitt advised that "they tell me I will have to let you go," and Pilachowski was discharged .5 Analysis and Concluding Findings as to the Discharge of Pilachowski Respondent's defense on this aspect of the case, as expli- cated in its brief, is that the discharge of Pilachowski should not be found to be unlawful because by engaging in union activities , i.e., attending union meetings , Pilachowski "was not engaged in a protected activity under the Act." 6 In support of its position, it cites Section 9(b)(3) of the Act, which prohibits the Board from deciding "that any unit is appropriate for [collective-bargaining] purposes if it in- cludes, together with other employees, any individual em- ployed as a guard . . . but no labor organization shall be certified as the representatives of employees in a bargaining unit of guards if such organization admits to membership, or is affiliated directly or indirectly with an organization which admits to membership, employees other than guards." Respondent argues that "it follows that guards may not join a labor organization which , as in this case, also represents non-guard employees of the same employer." I I disagree with this reasoning. In the first place, there is no evidence in the record that Pilachowski "joined" the Union here-he merely attended two meetings of the Union along with other employees. Thus the factual basis upon which Respondent's argument is based is not supported by the facts. But I do not rest my disposition of this issue on this narrow basis since, in my view, the scheme of the Act does not indicate that Congress intended that security guards should not have the protection that the Act affords other employees. Thus Section 7 of the Act grants employees broad rights to "self-organization, to form, join, or assist labor organizations, to bargain collec- tively through representatives of their own choosing, and to engage in other concerted activities for the purpose of col- lective bargaining or other mutual aid or protection.... " The term employee is defined in Section 2(3) of the Act as including "any employee, and not be limited to the employ- ees of a particular employer, unless the Act explicitly states otherwise.... " This latter Section of the Act specifically excludes certain classifications of workers such as agricul- tural laborers, domestic servants, and individuals employed by his parent or spouse, independent contractors, or indi- viduals employed by employers subject to the Railway La- bor Act. Nowhere in the definition is there an exclusion for security guards, although it is apparent that Congress knew how to exclude certain classifications of employees if it so desired. Accordingly, it would not seem that by limiting in some measure the Board's discretion in fashioning appro- 5 The foregoing finding is based upon the credited testimony of Pilachow- ski; Leavitt was not called as a witness 6 Respondent 's brief at p 12. Ibid 341 priate units in Section 9(b), Congress thereby deprived se- curity guards of their rights to engage in union or concerted activities under Section 7.8 Respondent's difficulty in this case appears to be that it lumped its supervisors and the security guards together in its direction that they not participate in union activities. That it had the right to do so as respects its supervisors seems clear since the latter are excluded from the definition of employee in Section 2(3). However, as pointed out above, security guards are not so excluded and therefore cannot be so deprived, at least inferentially. Thus, by attending meetings of the Union , Pilachowski was not engaging in activities unprotected by the Act; his discharge, therefore , had a purpose and effect of discourag- ing membership in a labor organization in violation of Sec- tion 8(a)(3) and (1) of the Act. C. Interference, Restraint, and Coercion 1. Surveillance The complaint alleges that on or about April 1 and April 5 Respondent's management trainee, Robert Gibbs, acting for and on behalf of the Respondent, engaged in surveil- lance of union meetings at the Aberdeen, Maryland, Holi- day Inn. The evidence shows that on the Saturday evening before Easter Sunday, in the spring of 1972, the employees of Re- spondent who were engaged in organizing the Union sched- uled a meeting after work at the said Holiday Inn .9 Two female members of the Union, not employees of Respon- dent ,10 were sitting in the cocktail lounge of the Holiday Inn about 9 p.m. that evening, having a drink. They noticed a man who came in and seated himself at a table near the entrance to the lounge, with a view toward the lobby of the motel. The man pulled out a pad from his pocket and made a notation thereon immediately after several of the employ- ees of Respondent passed through the lobby. II Dennis Meadowcroft, a business agent of the Union, came to the Holiday Inn that evening to attend the union meeting. He went into the cocktail lounge to see if any of the employees of Respondent were there, and saw the two Ames employees as well as the man at the table whom he recognized as Gibbs.12 Meadowcroft testified that he spoke to the two Ames employees (whom he knew by virtue of a 6 This analysis is in accord with that of the Board and the court in White Superior Division, White Motor Corporation, 162 NLRB 1496, enfd . as modi- fied 404 F.2d 1100 (C.A. 6, 1968) 91t appears that from the testimony of Dorothy Himmelman that this Saturday meeting was a special one, and was held in lieu of the regular Wednesday night meeting that week. 10 They were employees of Ames Department Store, a similar operation to that of Respondent , located several miles away. 11 Although, as above pointed out, neither of the two women was an employee of Respondent , one testified that she recognized about a half dozen of the passersby as the Respondent 's employees since she had been in the store quite often . She also testified that she recognized the face of the man sitting at the table since she had also seen him at Respondent 's store , but that she did not know his name until later. Both witnesses candidly acknowledged that they could not see exactly what information the man at the table was writing on his pad. 12 Meadowcroft testified that he had seen Gibbs on several occasions about the Respondent 's premises while he (Meadowcroft) was engaged in organizing activities. 342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD previous organizational campaign there), and told them that if they would stay for awhile he would come back and buy them a drink. Meadowcroft returned to the lounge at approximately 10:30 p.m., after the union meeting of Respondent's em- ployees had commenced. At that time, he was advised by the two Ames employees that Gibbs had just left. He sat down with them and they discussed the incident, and he confirmed to them that the man was Gibbs from the Respondent's store.13 Based upon the foregoing findings, I conclude that an object of Gibbs' presence in the lounge of the Holiday Inn that evening was to surveil the union meeting . As above noted, Gibbs was not called as a witness, and the only explanation offered for his presence in the lounge was through the testimony of Respondent's personnel director. Lerner, who stated that Gibbs lived across the street at a Quality Court Motel and frequently visited the lounge at the Holiday Inn for personal pleasure. However, I deem such evidence insufficient to rebut the prima facie case of the General Counsel and therefore find, as noted, that an objec- tive of Gibbs' presence was surveillance . Nevertheless, as Respondent contends that Gibbs was neither a supervisor nor an agent of Respondent, it is necessary to consider the evidence on that issue. 14 2. Gibbs' supervisory status Gibbs was hired in February as a management trainee. It was his function in that capacity to learn every aspect of the Respondent's operation and, as Personnel Director Lerner testified, it takes an average of 6 months for a trainee to learn the operation.15 Lerner further testified that Gibbs had the authority to make recommendations to the store manag- er with respect to any aspect of the store's operation. Based upon the testimony of employee witnesses, whom I credit in the absence of any countervailing evidence, I find that Gibbs did have certain independent authority in the store. Thus, he assigned work to employees and transferred them from one department of the store to another; he had the right to authorize clearance of a customer's check in excess of $50, and to authorize "voiding" a transaction in the cash register, neither of which was within the authority of a rank-and-file employee. Gibbs attended meetings of the "management team" along with admitted supervisors.16 In- 13 The foregoing findings are based upon a synthesis of the testimony of the three persons involved , Gibbs not having been called as a witness Al- though, as might be expected , there are some discrepancies in the testimony of the three , I find them to be essentially honest attempts at recollection of the facts and, particularly in the absence of countervailing testimony , I credit them 14 Dorothy Himmelman testified as to another occasion when, following a union meeting at the Holiday Inn, she noticed Gibbs at the bar in the lounge of the inn and spoke to him The following day he came to her place of work and denied that he had been in the Holiday Inn the previous evening to spy on their meeting While I do not necessarily credit such denial, I find that there is insufficient evidence to sustain a finding that Gibbs was present on that occasion for the purpose of engaging in surveillance (cf. Reidbord Bros Co, 189 NLRB 158), and I will recommend that the complaint be dismissed to that extent 15 This, even though Gibbs had previous experience in the retail trade 16 The only personnel conceded by Respondent in this proceeding to be supervisors are Store Manager Leavitt and Assistant Store Manager Ander- deed, Gibbs' rate of pay is in excess of that of the assistant store manager, an admitted supervisor. Finally, it appears that, as noted previously, there are approximately 90 employees who worked at Respondent's store on two shifts. Generally speaking, the store manager is present on the first shift and the assistant store manager is present on the second shift, although there may be some overlapping . Nevertheless , assuming the Respondent's theory of supervision, there would be only one supervisor for approximately 50 employees on the first shift and a single supervisor for the 40 employees on the second shift. The Board has on many occasions taken into consideration such a disproportionate ratio of supervisors to rank-and-file employees in considering the supervisory status of a contest- ed supervisor, 17 Based upon all the foregoing, I find and conclude that, at all times material, Gibbs was a supervisor within the mean- ing of the Act and therefore a person for whose conduct Respondent may be held accountable, even though there is no direct proof in this record that Respondent authorized or directed such conduct.'s Accordingly, I find and con- clude that Gibbs' surveillance of the union meeting at the Holiday Inn on the Saturday prior to Easter constituted interference , restraint , and coercion within the meaning of Section 8(a)(1) of the Act. 3. Promises of benefit, coercive threats, and interrogation With one exception to be discussed infra, the remaining allegations of the complaint with respect to independent violations of Section 8(a)(1) of the Act by Respondent's agents or supervisors are based upon the testimony of Doro- thy Himmelman, who was, as previously pointed out, the principal organizer of the Union among Respondent's em- ployees.19 Himmelman testified that shortly after she commenced her attempts to organize the Union in the store in March her activities were constantly surveilled by the managers of the various departments in the store (of which there were ap- proximately eight or nine.) She also testified as to incidents of harassment wherein Store Manager Leavitt reprimanded her for taking a spoon in the snackbar, and on another occasion accused her-apparently-of theft for having something in a paper bag. When she showed him that it was a bag in which she brought old working shoes, he apolo- gized. In April, Gibbs told her that he respected the way she was doing herjob of organizing, but that he also had hisjob to do and that he was going to "fight [her] all the way. I don't want to fight you, but I'm going to have to." Himmelman was absent from the store during May and son However, I note that in the concurrent representation case involving the Respondent the latter also conceded Gibbs to be a "supervisory employee " See G C Exh 2 17 See , eg, M & M Charter Lines, Inc, 173 NLRB 605, 610, Brewton Fashions, Inc, a Division of Judy Bond, 145 NLRB 99, 107, enfd 361 F 2d 8 (C A 5), cert denied 385 U S 842 18 See the Copps Corporation, 181 NLRB 294, 295 19 The complaint ascribes certain unlawful conduct to Respondent Person- nel Manager Lerner . However, there being no evidence adduced in the record in support of such allegations, I will recommend that the complaint be dismissed to that extent BEL-AIR MART, INC. 343 June because of illness and during July because of the death of her father. When she returned in August, Store Manager Leavitt requested that she see him in his office. There, he promised her any position in the store that she desired when the union campaign was over if she would "back off" of the pressure she had been exerting on the other employees 20 In the same conversation, Leavitt advised Himmelman that he had "told the boys to lay off of her" and that if anyone treated her as formerly he wanted to know about it. I believe this undenied statement to warrant a reasonable inference that Leavitt had directed the department managers to sur- veil Himmelman's activities, as previously described, even if the department managers do not technically come within the definition of supervisor as defined in the Act. Accord- ingly, I find the allegation in the complaint, that Respon- dent, by its department managers, harassed employees because of their union activities, to be sustained. Approximately a week later, Himmelman had another conversation with Leavitt in which he told her that he had noticed that she had not been as active as previously and that he was pleased and that if she continued in that direc- tion he would, in turn, also help her. Himmelman testified that around the beginning of Sep- tember Leavitt telephoned her while at work (even though he might be in the store, he did not want other employees to see him in conversation with her) and asked her "how things were going and were there any meetings coming up in the future." I find these interrogations to constitute inter- ference, restraint, and coercion within the meaning of Sec- tion 8(a)(1). 4. Alleged threat by Jessie Rich The complaint alleges that on or about August 30 Respondent's supervisor, Jessie Rich, threatened employees with discharge if they engaged in union activities. Evidence in support of this allegation was adduced by the General Counsel through the testimony of Linda McClung, an em- ployee in Respondent's "wig department" in August 21 It appears that, at the time of the alleged threat, there were only two employees in the wig department, McClung and Jessie Rich, whom McClung referred to as her "superior" and "manager of wigs." However, on cross-examination, McClung acknowledged that, the store being open for 72 hours per week, she and Rich, for the most part, shared the time between them so that one person would be on duty while the other was off. McClung further testified that, al- though Rich had certain authority with respect to promo- tions, demotions, granting time off, and hiring or firing of other employees, "she always had to check with Mr. Leav- itt." Thus, it can be fairly stated that Rich possessed no "independent judgment" with respect to these matters. While the evidence shows, as hereinabove set forth, that "department managers" attended certain meetings with Lerner as part of the "management team," it does not spe- cifically appear that Rich attended any of these meetings. In addition, McClung could not testify of her own knowl- 20 1 find this promise of benefit in return for limitation of legitimate union activities to be violative of Sec S(a)(1) of the Act. 21 McClung at the time of the hearing had left the employ of Respondent edge that Rich received money as a Christmas bonus (as, apparently, other department managers did). Rich denied receiving such a bonus from Respondent. Accordingly, after a consideration of all the evidence in the record as a whole, I find and conclude that the General Counsel did not prove by a preponderance of such evidence that Rich was a supervisor or agent of Respondent for whom Respondent could be held responsible for any re- marks that she may have made to McClung. As a conse- quence, I do not reach the question of whether any statements she may have made to McClung on or about August 30 constituted a violation of Section 8(a)(1), and I will recommend that the complaint be dismissed to that extent. IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section II, above, occurring in connection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and com- merce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. Upon the basis of the foregoing findings of fact, and upon the entire record, I make the following: CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of the Act. 2. The Union is a labor organization within the meaning of the Act. 3. By discharging James Pilachowski, as described above, the Respondent discriminated against an employee in regard to his hire and tenure of employment in order to discourage membership in the Union, and has thereby en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 4. By surveilling their union activities, by harassing and intimidating employees because they engaged in union ac- tivities, by coercively interrogating employees concerning their union activities, and by promising employees benefits if they would cease supporting the Union, the Respondent has interfered with, restrained, and coerced employees in the exercise of rights guaranteed them in Section 7 of the Act, in violation of Section 8(a)(1) 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. THE REMEDY Having found that the Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) and (3) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent discriminatorily dis- charged James Pilachowski , it will be recommended that the 344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent offer him immediate and full reinstatement to his former job or, if that position no longer exists, to a substantially equivalent position , without prejudice to his seniority or other rights and privileges , and that he be made whole for any loss he may have suffered by reason of the discrimination against him. Backpay shall be computed in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. As the unfair labor practices committed by the Respon- dent are of a character striking at the root of employee rights safeguarded by the Act, it will be recommended that the said Respondent be ordered to cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act. N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4). Upon the basis of the entire record , and pursuant to Section 10(c) of the Act, I hereby issue the following recom- mended: ORDER22 The Respondent, Bel-Air Mart, Inc., a Subsidiary of Mammoth Mart, Inc., Bel Air, Maryland, its officers, agents , successors , and assigns, shall: 1. Cease and desist from: (a) Engaging in surveillance of employees ' union activi- ties. (b) Harassing and intimidating employees because they engage in union activities. (c) Coercively interrogating employees concerning union activities. (d) Promising benefits to employees in return for their ceasing union activities. (e) Discouraging membership in or activities on behalf of Retail Store Employees Union, Local 692, Retail Clerks International Association, or any other labor organization, by discharging or otherwise discnminating against employ- ees with respect to their rates of pay, wages , hours , tenure 22 In the event no exceptions are filed as provided by Sec. 102 .46 of the Rules and Regulations of the National Labor Relations Board , the findings, conclusions , and recommended Order herein shall, as provided in Sec . 102.48 of the Rules and Regulations , be adopted by the Board and become its findings, conclusions , and Order, and all objections thereto shall be deemed waived for all purposes of employment, or any term or condition of employment. (f) In any manner interfering with, restraining, or coerc- ing its employees in the exercise of their right to self-organi- zation, to form, join, or assist the above-named labor organization, or any other labor organization, to bargain collectively through representatives of their own choosing and to engage in concerted activities for the purpose of co'lective bargaining or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Offer to James Pilachowski immediate and full rein- statement 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 his loss of earnings in the manner set forth in the "Remedy" section of this Decision. (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 under the terms of this Order. (c) Post at its store in Bel Air, Maryland, copies of the attached notice marked "Appendix." 3 Copies of the no- tice, on forms provided by the Regional Director for Region 5, after being duly signed by Respondent's authorized repre- sentative, shall be posted by Respondent immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that the notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 5, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges violations of the Act not specifically found. 23 In the event that the Board 's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."