Niagara Frontier Services, Inc.

National Labor Relations Board - Board Decisions

Nov 24, 1970

186 N.L.R.B. 769 (N.L.R.B. 1970)

NIAGARA FRONTIER SERVICES, INC.
Niagara Frontier Services, Inc. and 500 Genesee Street
Market , Inc. andAmalgamated Meat Cutters , Gutch-
er Workment and Affiliated Crafts of North Ameri-
ca, District Union Local No. 1 and Retail Store
Employees Union, Local 345 and Amalgamated
Meat Cutters, Butcher Workmen and Affiliated
Crafts of North America, District Union Local No. 1
Niagara Frontier Services, Inc. and 70 Hinchey Road
Market, Inc. and Amalgamated Meat Cutters,
Butcher Workmen and Affiliated Crafts of North
America, District Union Local No. 1 and Retail
Store Employees Union . Local 345 and Amalgamat-
ed Meat Cutters , Butcher Workmen and Affiliated
Crafts of North America , District Union Local
No. 1.Cases 3-CA-3966, 3-CB-1385, 3-CA-4028,
and 3-CB-1411
November 24, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On July 15, 1970, Trial Examiner George J. Bott
issued his Decision in the above-entitled proceedings,
finding that the Respondents had engaged in and
were engaging in certain unfair labor practices and
recommending that they cease and desist therefrom
and take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. Thereafter, the
Respondent Union filed exceptions to the Trial
Examiner's Decision and a supporting brief.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings made by the
Trial Examiner at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, brief, and the
entire record in this case, and hereby adopts the
findings, conclusions,2 and recommendations 3 of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recommend-
ed Order of the Trial Examiner directed to the
Respondent Union and Respondent Employers, and
hereby orders that the Respondents, Retail Store
Employees Union, Local 345, its officers, representa-
tives, and agents, and Niagara Frontier Services, Inc.,
186 NLRB No. 107
769
500 Genesee Street Market, Inc., and 70 Hichney
Road Market, Inc., their officers, agents, successors,
and assigns, shall take the action set forth in the Trial
Examiner's Recommended Order.
The Respondent Union's request for oral argument is hereby denied
as the exceptions, brief, and the entire record adequately present the issues
and positions of the parties.
2 In the absence of exceptions, we adopt pro forma the Trial Examiner's
conclusion that no real question concerning the representation of
employees existed at the time of the Respondent Employer's recognition of
the Respondent Union.
3 We find no merit in the Respondent Union's contention that the Trial
Examiner's recommended reimbursement remedy is inappropriate. The
recommended remedy by its terms excludes any employees who may have
joined the Union before, and accordingly could not have been coerced by,
the execution of the unlawful agreement. See Sinko Manufacturing and Tool
Company, 154 NLRB 1474, 1476.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
GEORGE J. BOTT, Trial Examiner: Upon charges of unfair
labor practices filed by Amalgamated Meat Cutters,
Butcher Workmen and Affiliated Crafts of North America,
District Union Local No. 1, herein called Meat Cutters or
Charging Party, against Niagara Frontier Services, Inc.,
and 70 Hinchey Road Market, Inc., in Case 3-CA-4028,
and against Retail Store Employees Union, Local 345,
herein called Retail Clerks or Respondent Union, in Case
3-CB-141 1, and on charges of unfair labor practices in
Case 3-CA-3966 against Niagara Frontier Services, Inc.,
and 500 Genesee Street Market, Inc., and in Case
3-CB-1385, against Respondent Union, the General
Counsel of the National Labor Relations Board issued
complaints, which he later consolidated for hearing,
alleging that Respondent Employers had engaged in unfair
labor practices within the meaning of Section 8(a)(1) and
(2) of the National Labor Relations Act, herein called the
Act, and that Respondent Union had engaged in unfair
labor practices within the meaning of Section 8(b)(1)(A) of
the Act.' Respondent Employers and Respondent Union
filed answers, and a hearing was held before me in
Rochester, New York, on May 12 and 13, 1970, at which all
parties were represented. Subsequent to the hearing,
Respondent Union, the Charging Party, and Respondent
Employers filed briefs which have been carefully consid-
ered.
Upon the entire record in the case and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. THE EMPLOYERS' BUSINESSES
Niagara Frontier Services, Inc., herein sometimes called
Niagara Frontier, is a New York corporation with its
principal office and place of business in Buffalo, New York.
' The original charge in 3-CA-4028 was filed on February 27, 1970; in
3-CB-141 I. on March 11, 1970; and the consolidated complaint in these
cases issued on March 26. 1970. The charge in 3-CA-3966 was filed on
December 4, 1969, in 3-CB-1385, on March 11, 1970, and the consolidated
complaint in these cases issued on March 26. 1970. On March 26, 1970, all
cases were consolidated for hearing.
770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent 500 Genesee Street Market, Inc., herein
sometimes called Respondent Genesee Market, is a New
York corporation and a wholly-owned subsidiary of
Respondent Niagara Frontier. Respondent Genesee Mar-
ket operates a retail store in the vicinity of Rochester, New
York, where it is engaged in the sale of foodstuffs and
related products. During the period from October 8, 1969,
which was the date on which the store opened for business,
until the date the consolidated complaint issued, Respon-
dent Genesee Market sold and distributed products the
gross value of which exceeded $500,000, and, during the
same period of time, it received goods valued in excess of
$50,000, transported to its place of business in interstate
commerce directly from States of the United States other
than the State of New York.
Respondent Niagara Frontier and Respondent Genesee
Market admit and I find that they are employers engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
Respondent Niagara Frontier and Respondent Genesee
Market also admit for the purpose of this proceeding, and I
so find, that they constitute a joint employer of the Genesee
Market employees.
Respondent 70 Hinchey Road Market, Inc., herein
sometimes called Respondent Hinchey Road Market, is a
New York corporation operating a retail store under a
franchise arrangement with Respondent Niagara Frontier
in the city of Rochester where it is engaged in the sale and
distribution of foodstuffs. During the period from on or
about September 15, 1969, until the date the consolidated
complaint issued, Respondent Hinchey Road Market sold
and distributed products the gross value of which exceeded
$500,000, and during the same period of time, received
goods valued in excess of $50,000, transported to its place
of business in interstate commerce directly from States of
the United States other than the State of New York.
Respondent Niagara Services and Respondent Hinchey
Road Market admit, and I find that they are employers
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
These Respondents also admit for the purpose of this
proceeding that they constitute a joint employer of the
employees at Hinchey Road Market, and I so find.
II. THE LABOR ORGANIZATIONS INVOLVED
Meat Cutters and Retail Clerks are both labor organiza-
tions as defined in the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Issues
The Hinchey Road store, employing about 44 persons,
opened for business on September 17, 1969, and the
Genesee Street Market, with approximately 60 employees,
opened on October 8, 1969. The Meat Cutters Union was
aware that Respondents planned to open both stores and
was interested in organizing their employees when the
stores opened. As will be expanded on later, representatives
of the Meat Cutters talked with applicants and visited the
stores after they opened and spoke with newly hired
employees as well as representatives of management. On
October 7, Kristie Johnson, regular head cashier at a
Batavia , New York, Tops Market,2 was assigned by Charles
Doerflinger, owner of Respondent Hinchey Road Market
and operator of the Batavia Tops Market, to Respondent
Genesee Street Market to train the head cashier and help
train regular cashiers.
Johnson spent 3 or 4 days at the Genesee Street Market
before Doerflinger transferred her to Hinchey Road
Market, and during that time she solicited employees to
sign authorization cards for the Respondent Retail Clerks,
obtaining employee signatures to approximately 42 cards,
which were all the cards the Retail Clerks had in its
possession when it was recognized by Respondent Genesee
Street Market as sole bargaining agent for employees at
that store.
Johnson obtained practically all authorization cards at
Genesee Street Market on October 9, a day she said was her
regular day off, and on the same day she visited the
Hinchey Road store, where she had previously spent some
time helping train employees before the establishment
opened, and signed 29 employees to cards designating
Respondent Retail Clerks as their representative. Here
again Johnson was the only solicitor for Retail Clerks and
she obtained all the cards used in obtaining recognition at
this store.
On October 17, 1969, a clergyman checked the Retail
Clerk's authorization cards against current payrolls at both
the Genesee Street and Hinchey Road stores and certified
to the respective employers that a majority of employees in
each store had authorized Retail Clerks to represent them
for the purposes of collective bargaining. Subsequent to the
card check, Respondents Genesee Market and Hinchey
Road Market immediately recognized Retail Clerks as
collective bargaining agent for employees, and on October
20, 1969, signed separate contracts with Retail Clerks
containing provisions requiring membership in Retail
Clerks and for dues checkoff.
The principal issue is whether or not Respondent
Employers, mainly through the activities of Johnson, aided
and assisted Retail Clerks Union in violation of Section
8(a)(2) and (1) of the Act, thereby tainting its ostensible
majorities upon which recognition and contracts were
based. Retail Clerks, of course, is charged with violating
Section 8(a)(b)(1)(A) of the Act by accepting recognition
and signing a contract based upon a coerced majority.
B. Basic Findings
1. Johnson's management functions
There is no controversy about the facts I have just set out.
Johnson collected all the authorization cards for Retail
Clerks in both stores, and the issue, stated another way, is
whether her actions bound Respondent Employers, either
because she was a supervisor or, if not a supervisor,
occupied a position in relation to other employees which
2 This is the style under which stores owned or franchised by National
Frontier Services, Inc., operate.
NIAGARA FRONTIER SERVICES, INC.
would justifiably cause them to believe that she was
speaking and acting on management's behalf.
Johnson testified that at the time of the hearing she was,
and had been for 3 years, head cashier at the Tops Market
in Batavia, New York, which is owned by Charles
Doerflinger, who also owns the Hinchey Road store. As
head cashier, Johnson works in the store's office, not at the
registers where the other cashiers work. She said her duties
include counting the store's money to make sure it
balances, and approving customer checks for cashing. She
also does a certain amount of other book work or record
keeping. Her responsibilities in regard to other employees
include telling cashiers when to take a break or go to lunch.
She also schedules their work, subject, however, to the store
manager's approval. She cannot grant time off to an
employee without the manager's approval, but if a person
becomes ill, she may release her. If a replacement is needed
for an absentee, Johnson telephones for a substitute
cashier, but the manager tells her when and who to call. She
also receives telephone calls from cashiers reporting their
absences.
Johnson said that she does not train new cashiers at the
Batavia store because she has "to watch the office" to see
that "nobody steals the money," so she assigns another
cashier to do the training.
Johnson also observes to see that cashiers are adequately
serviced by bag boys. If one is needed at a particular
station, she may call him on the loud speaker by name, but
it also appears that cashiers may do this on their own .3
Johnson said she went to the Genesee Street store at
Doerflinger's request "to help open, the store, run the
office." It is not too clear from her testimony whether she
claims she was or was not at the store before it opened. In
any case, I credit Hughes, the store manager at that time,
who testified that she was there just before the store opened
officially and helped train cashiers. The store opened on or
about October 8, and Johnson "ran the office" for a few
days and during that time trained an employee to be head
cashier. It also appears that during that period Johnson
spoke with a person named Ryan, who was applying for a
job as cashier. Ryan was being interviewed by a
representative of Respondent Niagara Frontier Services
who was training cashiers, but Johnson admittedly asked
the applicant what hours she would be able to work.
Johnson said that she "thought" this person was ultimately
hired, but she denied that she made any recommendation to
the store manager or to Doerflinger about her. Hughes, on
the other hand, testified that he "believed" Johnson hired a
"girl by the name of Ann Ryan that came in and said she
was sent over by Kris." Although this testimony is
undenied, neither was it fully developed. Johnson denied
that she had the power to hire and fire. I credit her in that
respect, but although I find that she was not instrumental in
hiring Ryan, I find that she played some significant part in
the interview that led to her hire.4
While Johnson was at the Genesee Street store, she was
3 Respondent Employers have moved to strike this evidence of
Johnson's functions at Batavia as having no bearing on her responsibilities
at Hinchey Road or Genesee Street The motion is denied for the evidence
throws light on her functions generally
771
not on that store's payroll and she was not under Hughes'
supervision, but reported directly to Doerflinger.
Johnson stayed at the Genesee store through Saturday,
October 11, 1969, when she was temporarily transferred to
the Hinchey Road store as head cashier where she
remained until the end of the year. Her explanation for this
move was that the store had no head cashier. When she
reported for work at Hinchey Road the cashiers were told
that they would be reporting to her beginning the following
week. Her duties during her assignment to Hinchey Road
were essentially the same as they are at the Batavia store,
and it also appears that before she left she trained a head
cashier to take her place.5 As indicated earlier, Johnson had
been assigned to the Hinchey Road store for approximately
a week before it opened in late September to assist in
training cashiers and to set up the office procedure.
There is some evidence in the testimony of other
witnesses bearing on the extent of Johnson's responsibilities
while assigned to the Genesee Street and Hinchey Road
stores. Store Manager Hughes' testimony that he believed
that Johnson hired a cashier has already been alluded to.
He also said that during Johnson's brief stay he asked her
how the new cashiers were progressing, and she made
certain suggestions about characteristics he should watch.
He said that he kept these suggestions in mind. Judy
Seymour, who was trained by Johnson at the Hinchey
Road store as head cashier and took her place, said that she
would consult Johnson by telephone about minor office
problems after she left. Seymour was discharged by two
representatives from National Frontier Services, Inc.,
sometime in November 1969. She testified without
contradiction that when approximately 2 weeks before her
discharge she left the office unattended, Johnson warned
her that she would be fired if she did it again. Seymour also
received a written reprimand and warning from Doerflinger
on October 24, 1969, for leaving the office unguarded and
unlocked. The reprimand refers to prior warnings, and
Seymour said that the only prior warnings she had received
were from Johnson.
Johnson was also present when the men from National
Frontier Services interviewed Seymour before the decision
to discharge her was made. Johnson also participated in
checking Seymour's accounts and was present again when
Seymour was told that she was being terminated.
2. Johnson's activities on behalf of Respondent
Retail Clerks
Respondent Retail Clerks was a party to a contract
covering the employees of Tops Market in Batavia, New
York , where Johnson was employed as head cashier before
the events in this case began . Johnson was covered by the
agreement and was a member of the Clerks Union.
Respondent Hinchey Road opened on or about September
17. Johnson had spent about a week there training
employees before the store opened and she remained
temporarily as head cashier after the opening . She testified
that she was prompted to get in touch with Respondent
4 There is an authorization card in evidence for a cashier named Anne
Ryan and also for the head cashier, Carol Miller, both obtained by
Johnson
5 This was Seymour. who also signed a card for Johnson.
772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Retail Clerks when she overheard Pizzo, business represent-
ative of Meat Cutters , inform Doerflinger , owner of
Hinchey Road , that "his union was going to get in one way
or another or else they would send 20 men in with cards and
jam the place up." This remark , according to Johnson, was
made about a week before she telephoned Columbo,
secretary-treasurer of Respondent Union , to seek his help.
When she met with Columbo shortly thereafter he supplied
her with union authorization cards and instructions about
where and how to solicit and what to say to employees. The
meeting with Columbo, as I reconstruct the situation,
would have taken place on or about October 7 or 8, because
she began to solicit cards at both stores a day or so later,
and the great majority of the cards she obtained from
employees are dated October 9, 1969.
As indicated earlier , Johnson spent most of the second
week of October at the Genesee Street store , at Doerfling-
er's request , assisting , as she said , in getting the store
opened and running the office . During that period,
however, she also took a day off and solicited for
Respondent Union in the store . This day off must have
been October 9, for all but four or five of the cards obtained
from employees at that market are so dated , and the rest are
dated October 10.
Johnson testified that she, spent about 3 hours soliciting
signatures at Genesee Street on Thursday and a short
period on Friday , October 10 . Employees for the most part
were spoken to in a space behind the office where cashiers
perform certain duties, or in a "back room" behind the
office . She also spoke with bag boys in a group and visited
the meat department to secure signatures . Johnson stated
that she made an effort to discuss the Union with
employees in the back room while they were on breaks, but
she admitted that while she was not in the back room on
Thursday , October 9 , she walked around the store and
talked with employees , some of whom were working at the
time . On Friday, however , she said she talked with
employees only while they and she were on a break.
The Retail Clerks authorization cards which employees
in both stores signed at Johnson 's request is a single
purpose card clearly declaring a purpose to designate Retail
Clerks to represent the signer as bargaining agent, but
General Counsel contends that Johnson misrepresented the
purpose of the card to employees when she solicited them,
and that these misrepresentations , apart from Johnson's
status as a management representative , invalidate the cards.
Johnson testified that she told the employees that "this was
an authorization card for the Union to draw up a contract
and the Union had mentioned about a 15 cent raise would
be in the contract and Blue Cross and Blue Shield for full-
time and that if they signed this card it would authorize the
Union to draw this contract up and they would call a
meeting and they would vote on the contract." She added
that if "a majority signed" cards the Union would prepare a
contract and call a meeting to vote on it, and she explained
that when certain employees asked if signing the card made
them members of the Retail Clerks , she told them it was not
a membership card , but "it was an authorization and it
stated right on the card ." In some cases , Johnson also told
employees that Meat Cutters were also "trying to get in,"
but she belonged to the Retail Clerks Union , and thought it
was the better of the two.
Henderson , Nero , Miller and Conley , employees at the
Genesee Street Market , signed authorization cards for
Johnson . Although I credit Henderson's undenied testimo-
ny that Johnson came to the store in November , after she
had been made head cashier on a part time basis, to give her
certain instructions and assistance regarding office proce-
dure and book work , and also find , in accord with her
testimony , that Johnson approached her while she was
working and asked her to come with another employee to
the back room where she signed an authorization card,
there is nothing in her brief testimony indicating that
Johnson misrepresented the purpose of the card. As a
matter of fact , Henderson 's testimony coincides in some
respects with what Johnson said she told employees.
Conley also testified without contradiction that she and
about six other meat department employees were working
when Johnson solicited them . She also said that Johnson
told them that the card "didn't mean anything" and that
she did not read it . Conley also recalled, however, that
Johnson said two unions were organizing the store, that
union dues were mentioned , but a 15 cent raise was not. In
effect , she said that she was told that the reason for signing
the card was "just to call a meeting and tell us what their
union was and their benefits and things."
Nero, although stating that Johnson told her the card was
not a membership card , "but to hold a meeting," also
testified that Johnson told her that she was in favor of the
Retail Clerks and "wished that (she) would sign a card in
favor of the Retail Clerks...." Nero also said that she did
not read the authorization card , but later in her testimony
she stated that when she signed "the thing " for Johnson she
"thought it was kind of understood that they would take
out dues...." Nero also recalled Johnson mentioning that
dues for Retail Clerks were lower than for Meat Cutters
when she solicited her.
Miller was also solicited by Johnson during working
hours. She said she told Johnson that she was "not signing"
until she heard what "they have to offer ." Johnson told her
that she was "not signing for the union ," but "to bring the
union in to talk to you ...." This is why she signed, said
Miller, and she did not read the card . She recalled that
Johnson said "something" about Retail Clerks being a
"good" union.
In my opinion there is little , if anything , in the testimony
of Conley , Nero and Miller about what Johnson told them
to overcome the clear language of the card itself . All these
employees are literate and had ample time to read the cards
which Johnson handed to them , and, if they did not, their
testimony in some respects is not unlike what Johnson said
she told them. I also thought that Conley in particular was
having afterthoughts at the hearing about why she signed
the card and was not too sure about whether she had read it
or not before she signed it. I find that General Counsel had
not established by a preponderance of the evidence that the
cards of Henderson , Nero, Miller and Conley were a
product of misrepresentation .6
Tobin , Cammilleri , Laschander and Seymour testified
about she solicited them for Retail Clerks. Tobin read the
6 Levi Strauss & Co., 172 NLRB No. 57.
NIAGARA FRONTIER SERVICES, INC.
card before she signed it. When she asked Johnson why she
wanted her to sign, she said Johnson replied that "it was to
call a meeting" and was "not a vote" for Retail Clerks.
Cammilleri testified that Johnson asked for her signature
in order to "call a meeting" to be held on the following
Tuesday. A 15 cent raise was mentioned, as were
comparative dues and initiation fees. Although she
remained with Johnson for from 5 to 10 minutes, she said
she did not read the card.
Laschander's version of what Johnson told her stresses
Johnson's emphasis on signing "a card for a meeting to be
held so we could hear what the Retail Clerks had to say,"
but it also appears from her testimony that before she
signed it she asked Doerflinger why "we were going to have
a union" in the store. Moreover, Laschander spent
approximately 10 minutes with Johnson when she was first
approached about Retail Clerks, but, nevertheless, declined
to sign the authorization card at that time. It was only after
she talked with Doerflinger later that she executed the
instrument.
Seymour asked Johnson what the card meant when she
asked her to sign it, and she said Johnson told her that "it
meant that I'd be present at a meeting." Seymour filled it
out and signed it. Seymour attended the meeting of Retail
Clerks where the contract with Respondent Hinchey Road
was discussed and made no objection to the proposed
agreement. She said she did not realize that she had
authorized the Retail Clerks to represent her.
Michael Ryan worked in the meat department at
Hinchey Road when Johnson solicited the employees there,
but he was in favor of Meat Cutters and did not sign a card.
He testified that Johnson had authorization cards in her
possession and "wanted us to sign to see if we wanted to
have a meeting with this particular union for negotiations, I
guess." He told her he wanted nothing to do with Retail
Clerks, although she argued the comparative merits of the
two unions.?
Here again I find that the testimony of what employees
said they were told is not so unlike what Johnson said she
told them to support a finding of deliberate misrepresenta-
tion of the card's purpose. I also note that the handwriting
in the various spaces on the cards signed at this store, as is
also true at Genesee Street, seems to be the same as that of
the signer of the card, which would indicate that those who
professed not to have read the cards had ample time and
opportunity to absorb the clear and brief designation of
Retail Clerks. Here again I am of the opinion that
employees were having second thoughts about the signifi-
cance of their acts.
Finally, with respect to misrepresentation, if all cards of
all employees who testified were invalidated, it would not
destroy Retail Clerks' substantial card majority at either
store.
7 Ryan was more experienced with unions than the other employees
who testified about what Johnson said to them He knew that Johnson
wanted their signatures to bring the Retail Clerks in for "negotiations,"
and, time at Genesee Street. and also more experienced in this field, who in
this respect, his testimony is like Comeau's head meat cutter at the testified
that Johnson "presented her story about the Retail Clerks and asked us to
773
3. Respondent Employers' knowledge of Johnson's
activities and how they reacted toward Meat
Cutter activity
Respondent Hinchey Road opened for business on or
about September 17, 1969, and on opening day Pizzo and
Tiberio, Meat Cutter representatives, visited the store and
told Doerflinger, the owner, that they were starting an
organizing campaign. Pizzo also told Doerflinger that he
had heard that a "honeymoon contract (was) being drafted
between the Retail Clerks and his company," which
Doerflinger denied.8 A few days later, when Doerflinger
discovered that Pizzo was in the store attempting to talk
union with employees, he summoned the police and
attempted to have him evicted. After a telephone call to
Respondent Niagara Frontier Services, initiated by Doer-
flinger and also participated in by Pizzo, DiMiceli, Niagara
Frontier Services' director of industrial relations, told Pizzo
that he would not be prevented "from walking around the
store provided you do not talk to our employees." After this
conversation, Pizzo said he returned to the store about three
times a week to speak with employees, but he was unable to
because Doerflinger followed him, or had someone else
follow him around the store. On September 18, Tiberio was
standing near the check-out area of the Hinchey Road store
waiting, so he said without contradiction, to hand union
leaflets to cashiers when they had finished with their
customers. Doerflinger observed him, took him "gently" by
the arm and told him to do his soliciting outside the store.
Pizzo also visited the Genesee Street store, shortly after it
opened for business, where he said he "went through the
same motions of trying to contact people in the store and
tried to get names and addresses where possible and pass
out authorization cards when I wasn't being directly
followed." He was observed once at least by Hughes, the
store manager, who ordered him to leave and threatened to
call the police if he did not. Pizzo did not leave, and Hughes
did not summon the police, but he trailed Pizzo as he
walked around the store.
Hughes testified that in early October, just before the
Genesee Street store opened, Battles, his immediate
supervisor at Niagara Frontier Services, telephoned him
and informed him that Meat Cutters was going to attempt
to organize the store. Battles told Hughes that Retail Clerks
was preferred over Meat Cutters, and he urged him to keep
him informed about anything he heard in the union area.
Doerflinger also told Hughes immediately before the
store opened that Meat Cutters was attempting to organize
Hinchey Road and would also try to organize Genesee
Street. He also directed Hughes to "keep everybody
informed if they did" and report any "mention of the
union." Doerflinger added that "we really don't want a
union in, but if we do (have to) we prefer to make it the
Retail Clerks."
On October 14, Meat Cutters sent a telegram to the
Genesee Street store, which Hughes admitted receiving,
sign a card "
" Pizzo and Tiberio also were present in the parking lots of both stores
before they opened while the Employers were interviewing applicants
They asked applicants to consider the Meat Cutters if they were hired, and
they were observed by National Frontier representatives.
774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
claiming an interest in the employees and warning
Respondent Genesee Street against negotiating with any
other labor organization . Hughes telephoned DiMiceli at
National Frontier Services and told him about the wire, but
DiMiceli had already received a copy . Respondents did not
reply to these telegrams.9
Hughes was present at a meeting of store managers and
owners with Niagara Frontier Services ' representatives in
Buffalo on October 14 , 1969. He , Battles and Doerflinger
engaged in a discussion "about the Union," and Hughes
said that he was told that "the union was voted on the night
before and voted in the Retail Clerks."
An employee by the name of Quinn was discharged at the
Genesee store on or about October 23 . Hughes testified that
around that time he had a meeting with 8 to 10 stock boys
to tell them that the Retail Clerks "were voted in" and he
wanted "no more disruptions of the work over the Union."
He said he told the employees that if anyone wanted to
argue the union issue to do it outside the store . Hughes
testified that some of the employees volunteered that they
had signed Meat Cutter authorization cards, but he
maintained that he did not seek this information or make
any threats . He conceded , however, that he told the
employees to report to him if they saw anyone soliciting
authorization cards for the Meat Cutters . He also admitted
that he had a discussion with Quinn at this time and that
"the topic of solicitation of Meat Cutter cards was the basis
for his discussion with Quinn ." Former employee Comeau
credibly threw a little more light on the Quinn incident by
his testimony that the discussion between Hughes and
Quinn was "heated," in the presence of many employees,
over the subject of Quinn 's alleged solicitation for Meat
Cutters , which Quinn denied , and Hughes offered to
establish by calling employees to prove it.
Hughes knew that Johnson was talking with employees
other than cashiers on October 9. Hughes said he
introduced her to stock boys and told them she would like
to talk with them , but did not stay to overhear what was
discussed.
A representative of Niagara Frontier Services who was
training cashiers at the Genesee Street store also knew that
Johnson was talking privately with employees in groups
during working hours. Nero signed her card on October 9,
and she testified without contradiction that Patti told
Johnson "to take us to the back room ," which she did, and
where they signed.
Although Doerflinger had no recollection of it , Hinchey
Road employee Tobin testified that he told her Johnson
wanted to speak with her. This was during working hours,
and when she saw Johnson , she asked her to sign an
authorization card . Two or three other employees were
present in the backroom with her when she signed her card.
Hinchey Road employee Laschander was asked by
Johnson to sign an authorization card on October 9. She
did not immediately sign the card , but asked Johnson why
she was engaged in solicitation . Johnson told her that
Doerflinger had asked her to do it . Laschander then spoke
with Doerflinger and asked him how it was that "we were
going to have a union , we were talking about a union now,
because when I was hired we were told there would be no
unions as long as everybody was working out allright." She
testified without contradiction that Doerflinger replied,
"there had to be a union-so we might just as well go with
the Retail Clerks ." Fifteen minutes later , Laschander
signed a Retail Clerks card . Johnson made a similar remark
when Seymour, employed as head cashier at Hinchey
Road, remembering that Doerflinger told her when he
hired her that he would rather not have a union, asked
Johnson about it when she solicited her for Retail Clerks.
Johnson replied, "if one of the unions had to get in, they'd
perfer to have the Retail Clerks union."
Doerflinger testified that Johnson told him that she had
solicited "practically all cards" for Retail Clerks after the
employees had met to ratify the contract between
Respondent Employers and Retail Clerks. He could not
recall exactly when or where he received this information
from her, but he maintained that although he knew
Johnson was a member of Retail Clerks at his Batavia store
and that "we discussed Retail Clerks quite frequently in
Batavia," they did not talk about the Retail Clerks' activity
at the Hinchey Road store or the Genesee Street store
before the contracts were ratified . Doerflinger stated that
he regularly ate lunch with Johnson and that during the
period when Johnson was soliciting union cards at both
stores he lunched with her several times a week, but she
never mentioned that she was soliciting authorization cards.
Johnson testified that she had no conversations with
Doerflinger about soliciting for Retail Clerks before she
began her activities , but that "a day or two after," at
Hinchey Road, Doerflinger asked her "why she was doing
it" and she told him that since the Batavia store was
represented by Retail Clerks and she did not like Meat
Cutters, she had gotten in touch with Columbo of Retail
Clerks. She said she recalled no conversations with
Doerflinger about the two unions "in general ," but later she
indicated that she told Doerflinger that her activities on
behalf of Retail Clerks had been motivated by Doerflinger's
encounter with Pizzo of the Meat Cutters in which Pizzo
threatened to organize the store with the use of 20 union
representatives . She also told Doerflinger at the time that
she "had a majority signed up," but his only response was
that he could not be involved.
Of course the clear implication in Doerflinger's and
Johnson's testimony is that Respondent Employers did not
know that Johnson had any part in soliciting authorization
cards for Respondent Retail Clerks until after a third party
had checked Retail Clerks cards against Respondents'
payrolls and until after labor agreements were signed with
Respondent Retail Clerks on the basis of that examination.
I find the implication too unreal to accept , and I find that
Respondents knew what Johnson was doing in regard to
soliciting for Retail Clerks in both stores , at least from the
moment she brought the cards into the Genesee Street
store . In brief, the record shows that Respondents were
aware that Meat Cutters were trying to organize both stores
and warned Hughes, the store manager at Genesee Street,
to be alert and report any union activity he observed.
Johnson was assigned to Genesee Street for a few days,
9 An earlier telegram to Respondent Hinchey Road in September in the
same vein was also ignored.
NIAGARA FRONTIER SERVICES, INC.
ostensibly to help train a head cashier and assist in getting
the business launched successfully, yet she took one full day
off from that assignment to sign up a majority of the
employees at both stores, in the stores and during working
hours in many cases. Her activities could not have gone
unobserved and they were not, for both Patti, a representa-
tive from Niagara Frontier Services, and Hughes told
employees that Johnson wanted to see them. Doerflinger
also told one employee, in answer to her inquiry about
Johnson's solicitation of her, that if there had to be a union
in the store, it might just as well be Retail Clerks, and that
employee signed a card for Johnson thereafter. It is also too
much to accept as a coincidence only Johnson's solicitation
of Tobin in the presence of two or three employees in a
room behind the office after Doerflinger had told Tobin
that Johnson wanted to see her. Finally, Johnson solicited
employees in groups, and this is additional evidence that
management knew what she was doing and approved of it,
and I so find.
4. Alleged threats in violation of Section 8(a)(1)
of the Act subsequent to the signing of labor
contract with Retail Clerks
Employee Laschander testified without contradiction
that, on or about December 1, a representative of Niagara
Frontier Services at the Hinchey Road store asked her to
sign a membership card and dues checkoff authorization on
behalf of Retail Clerks, and told her that she would be
terminated if she did not.
Some time in December 1969, Hughes, store manager at
Hinchey Road, told employee Nero that if she did not sign
a membership card and checkoff authorization for Retail
Clerks the company would no longer be able to schedule
her for work. Nero did not sign a card, and the store
continued to use her, but some time later, Battles, of
Respondent Niagara Frontier Services, also told her that
she would be terminated if she did not join Retail Clerks.
Subsequently, Nero joined Retail Clerks, and dues are
regularly deducted from her wages.
C. Analysis, Additional Findings and Conclusions
The complaints in both cases allege that Respondent
Employers gave unlawful aid, assistance and support to
Respondent Union in violation of Section 8(a)(2) of the
Act, by Johnson's conduct in soliciting employees to sign
authorization cards for Respondent Union, and by
recognizing, bargaining with, and contracting with Respon-
dent Union when it had not been duly designated by a
majority of employees.10 If Respondent Employers are
chargeable with Johnson's actions under any theory, illegal
aid and assistance to Respondent Union is clear, because it
had no support that Johnson did not secure, and, for the
same reason, recognition, bargaining, and contracting were
all illegal because they were founded on a totally coerced
majority. I find that Johnson was not a supervisor within
the meaning of Section 2(11) of the Act, but that
10 The complaints also allege as an additional ground for invalidating
Respondent Union's status, Respondent Employers' recognition, bargain-
ing, and contracting with it at a time when there existed a question
concerning the representation of Respondent Employers' employees See
775
Respondent Employers are legally responsible for her
actions because of the position they permitted her to
occupy and because they authorized and ratified her
actions.
Johnson was employed at Doerflinger's Batavia store as
head cashier before the events in these cases started, and,
after spending some time at Hinchey Road before the store
opened, a few days at the Genesee Street store around its
opening, and then back to Hinchey Road for approximate-
ly 2 months as head cashier, she returned to Batavia where
she was employed as head cashier when this case was heard.
The only evidence that relates to any possible supervisory
responsibilities Johnson has or had at Batavia is in
connection with making up cashiers' work schedules,
permitting a cashier to leave if she becomes ill and calling in
cashiers to substitute for an absentee. It appears, however,
that the store manager approves the work schedules and
Johnson does not choose which employees are to work, that
she can only permit an employee to leave in case of illness
and any other request based on any other ground must be
approved by the store manager, and Johnson telephones
only employees designated by the manager to come to work
in the place of another employee. Johnson's exercise of
whatever authority she has to "assign" or "direct"
employees at Batavia appears, therefore, to be "routine"
and not to require the exercise of "independent judgment."
This is not enough to qualify her as a supervisor under the
definition.
The evidence with respect to Johnson's authority at
Hinchey Road during her assignment there lends a little
more support to General Counsel's contention that she was
a supervisor, but not enough, in my opinion. Johnson
trained Seymour and apparently stayed with her until she
completed her training, and she was also present when
Niagara Frontier Services representatives fired Seymour.
This is substantial evidence to support a finding that
employees had good reason to believe that Johnson spoke
for management, but it would not support a finding that she
responsibly directed Seymour or recommended her dis-
charge. Similarly, Seymour had been warned or cautioned
by Johnson about leaving the office unattended, and
although it is a fair inference that Johnson reported this to
Doerflinger, the written warning which Seymour later
received is signed by Doerflinger, and, in addition, it is the
only evidence in the record of Johnson being in any way
responsible for anyone having been disciplined.
Johnson was at Genesee Street for only a few days and
helped train cashiers and the head cashier. She was present
when an applicant was interviewed for employment by
Niagara Frontier representatives, and she asked the
applicant a question or two. Hughes, the store manager,
said he "believed" that this applicant was hired and "sent
over by Kris (Johnson)." Johnson denied that she had made
a recommendation in the case. The evidence is too sketchy
to show supervisory authority, but here again it indicates
that Johnson occupied a position at a level higher than an
ordinary employee.
Shea Chemical Corporation, 121 NLRB 1027. This issue will be handled
separately
776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In I.A.M. v. N.L.R.B.11 the Court said that an employer
may be held to have assisted a union even though the acts
of the so-called agents were not expressly authorized or
attributable to him on strict application of the rules of
respondent superior. Noting that what we are dealing with in
these cases is "a clear legislative policy to free the
collective-bargaining process from all taint of an employ-
er's compulsion, domination or influence," the Court
observed that, "the existence of that interference must be
determined by a careful scrutiny of all factors, often subtle,
which restrain the employees' choice and for which the
employer may fairly be said to be responsible" and
concluded that "where the employees would have just cause
to believe that solicitors professedly for a labor organiza-
tion were acting for an on behalf of management, the Board
would be justified in concluding that they did not have the
complete and unhampered freedom of choice which the Act
contemplates." The Court found that although the
solicitors were not high in the management hierachy, they,
because of their positions in relation to the employees,
"were in a strategic position to translate to their subordi-
nates the policies and desires of management." This is
exactly what they did, the Court held.
Here in our cases , Johnson exercised general authority
over a group of employees of a kind very close to the
supervisory line, and in one 'case she may actually have
influenced the decision to hire a cashier. In Seymour 's case,
she spent a long period training her for head cashier and
was also present when agents of Respondent Frontier
Services fired her. It is difficult not to assume, and it would
be only normal for employees not to believe, that she would
not have been consulted about Seymour's potential.12
In addition to her general authority near, if not at, the
supervisory level, as defined in the Act, Johnson received
responsible assignments and occupied a most unique
position. She was Doerflinger's head cashier at Batavia, and
she was first assigned to assist in opening and to help train
employees of the Hinchey Road store, where she remained
for more than a week. During this period she began to train
Seymour as head cashier to take her place as acting head
cashier. When the Genesee Street store was ready to open
in early October, Johnson appeared at the store with
Doerflinger, but Hughes, the store manager, did not know
she was coming, and he exercised no authority over her.
Here too, while she was not soliciting employees to sign
authorization cards for Retail Clerks, Johnson did some
training of cashiers and helped the head cashier with her
office work. When Johnson wanted to speak with stock
boys, who were not remotely under her jurisdiction, Hughes
introduced her to them.13
When Johnson finished her assignment at the Genesee
Street store, she did not return to her permanent job in
11 311 U.S. 72, 80; See also Sioux City Brewing Company, 82 NLRB
1061, 1063, fn. 7; Birmingham Fabricating Company, 140 NLRB 640,
644645; Clifton Precision Products Division, Litton Precision Products, Inc.,
156 NLRB 555, 568-569; Welsh Sporting Goods Corp., 181 NLRB No. 136.
12 Seymour said she considered Johnson to be her supervisor.
13 Some indication of Johnson's impact on persons who worked directly
with her is revealed by an analysis of Respondent Union's authorization
cards . At Hinchey Road , 14 of the 29 cards were signed by cashiers, and at
Genesee Street , 15 of the 42 cards were obtained from cashiers by Johnson.
She also signed up some stock boys at both stores . Even if only these cards
Batavia, but went back to Hinchey Road where she
remained until late 1969, because the store had no regular
head cashier . Thus Johnson is used by Respondent
Employers in important managerial functions 14 where she
is needed , and it cannot be overlooked that she had the run
of both stores involved in this case while she secured every
authorization card which purported to justify Respondent
Employers' recognition of Retail Clerks. In this context
employees would naturally have believed that she spoke at
least with Doerflinger 's approval and was carrying out his
expressed policy that if there had to be a union in the stores
it might just as well be Retail Clerks.
I have found that Doerflinger knew how Johnson was
spending her time and approved of and ratified her actions.
The law is simple and clear-an employer may not interfere
with the formation of a labor organization or contribute
support to it, because the law guarantees employees
"complete and unfettered freedom of choice." 15 and "slight
suggestions as to the employer 's choice between unions
may have a telling effect among (women) who know the
consequences of incurring that employer's strong
displeasure." 16 Even if no other labor organization was
involved Johnson 's efforts were illegal aid and assistance to
Retail Clerks.17
But two labor organizations were involved,18 and
employers must act evenhandedly and not give one union
an advantage over the other for the allegiance of its
employees . A legitimate consideration in determining the
significance of any aid or assistance afforded one union,
and consequently the size of its advantage over a rival, is an
employer's expressed attitude or treatment of the rival.
Respondent Employers' disparate treatment of Meat
Cutters is revealing.
An employer's feeling at the prospect of unionization
may range from rapport to revulsion, and these sentiments
may be expressed by him or his choice of the lesser of two
evils indicated without interdiction , but Section 8(c) of the
Act does not insulate his motives and acts from examina-
tion in the light of his statements and is no refuge at all if he
acts in accord with his opinions.
Respondent Employers' officials told Manager Hughes
that management preferred Retail Clerks and to keep them
informed about any Meat Cutter activity in the store, and
Doerflinger expressed this preference to at least one
employee, as well as to Johnson . Johnson of course
transmitted it to many. In line with this expressed policy of
opposition to Meat Cutters , the Employers as described
more fully above, tried to expell Meat Cutter representa-
tives from the stores , or asked them to leave and followed
them when they tried to talk with employees. Their
surveillance was not covert, but open and apparent to
employees, and Manager Hughes heatedly berated employ-
of persons who were most susceptible to Johnson 's influence because of her
most strategic position in regard to them were considered tainted, it would
destroy Respondent Union's ostensible majority by far at both stores.
14 Not the least of which is watching a store 's daily receipts.
15 N. L. R. B. v. Link-Belt Co., 311 U.S. 584, 588.
16 LA . M. v. N. L. R. B., supra, fn. 60 at 78.
17 N. L. R. B. v. A & S Electronic Die Corp., (C.A. 2), decided March It,
1970,73 LRRM 2750.
18 Ironically, the only evidence in the record that there was any union
activity going on before Johnson put on her effective, whirlwind campaign
relates to Meat Cutter activity.
NIAGARA FRONTIER SERVICES, INC. 777
ee Quinn in the presence of a large group of other
employees for attempting to solicit for Meat Cutters,
threatened to bring employee witnesses to prove his charge
and warned employees to report to him any other Meat
Cutter activity they observed in the store. Respondent
Employers' disparate treatment of Meat Cutters demon-
strates that Johnson's Retail Clerks activity was done with
managements' aid and approval, if not prior authorization,
and highlights the importance of the advantage that Retail
Clerks enjoyed in their "campaign." 19
I find and conclude, on the basis of the facts set forth
above, that Respondent Employers lent substantial support
and assistance to Respondent Union and that by recogniz-
ing and bargaining with Respondent Union as the exclusive
representative of its employees and contracting with it on
that basis when it did not represent an uncoerced majority
of employees Respondent Employers violated Section
8(a)(I) and (2) and Respondent Union violated Section
8(b)(l)(A) of the Act.20
D. Illegality Based On Alleged Question Concerning
Representation When Recognition Granted
The complaints allege that Respondents violated the Act
by granting and accepting recognition at a time when Meat
Cutters had raised a question of representation. To invoke
this doctrine, the question of representation must be real.
Meat Cutters did make timely demands on Respondent
Employers for recognition, but it did not follow through
with petitions for investigation and certification of
representatives, and the record in this case does not show
that it had enough authorization cards to support such
petitions. Meat Cutters were obviously handicapped in
their campaign, and although I find that Respondent
Employers' instantaneous recognition, rapid bargaining,
and speedy agreement with Retail Clerks is some evidence
of aid and assistance to that Union in the light of the rest of
its conduct, I find that no real question concerning the
representation of employees within the meaning of the
cases existed at the time of recognition.21
E. Additional Violations of the Act
In addition to being of further assistance to an already
assisted union in violation of Section 8(a)(1) and (2) of the
Act, Respondent Employers violated Section 8(a)(1) by
Hughes' threat to Nero and a Niagara Frontier Services'
agents' threat to Laschander to terminate them unless they
signed membership applications and dues checkoff authori-
zations on behalf of Respondent Retail Clerks.22
F. The Remedy
It having been found that Respondent Employers by
recognizing Respondent Union as the collective bargaining
19 Employees Quinn, Comeau and Seymour were not openly soliciting
for Retail Clerks in the stores, as the briefs suggest, and, in any case, the
employer reacted adversely when he discovered what Quinn was doing. I
also reject as illogical and legally impermissible the argument that Hughes'
or Doerflinger's interference with Meat Cutter activity was proper because
Respondent Employers had already recognized and contracted with Retail
Clerks, if for no other reason than because their conduct is evidence of
discrimination in regard to access as part of a continuing pattern of
representative and by executing a contract with said Union
at a time when it did not represent a free and uncoerced
majority of employees violated Section 8(a)(2) and (1) of
the Act, and Respondent Union, by the same acts , violated
Section 8(a)(1)(A), it will be recommended that Respon-
dent Employers and Respondent Union cease and desist
from violating the Act and take certain affirmative actions
designed to effectuate the policies of the Act. Respondent
Employers must be required to withhold all recognition
from Respondent Union as representative of any of their
employees unless and until said labor organization shall
demonstrate its exclusive majority status in a Board-
conducted election. The Employers should also cease giving
effect to the October 20, 1969, collective-bargaining
contracts. Nothing herein shall be construed, however, as
requiring the Employers to vary any wage or other
substantive features of their relations with their employees
which they have established in performance of said
agreements. Respondent Union should, it will be recom-
mended, cease acting as collective-bargaining representa-
tive unless and until it demonstrates its exclusive majority
representative status in a Board-conducted election, and
should also cease giving effect to the October 20 contracts.
It also appears that the labor agreements contain union
security clauses requiring membership in Respondent
Union, and since any dues, initiation fees, and other monies
paid to Respondent Union subsequent to the execution of
the agreements, pursuant to the union security clauses, were
deducted and paid under coercion and a reimbursement
order is necessary to remedy the unfair labor practices and
to establish an atmosphere wherein employees may
voluntary select or reject a bargaining representative as
provided in the Act, it will be recommended that
Respondent Employers and Respondent Union shall
jointly and severally reimburse with 6 percent interest all
present and former employees for all dues, initiation fees
and other monies illegally exacted from them pursuant to
the provisions of the union-security clause or pursuant to
any union checkoff authorization cards executed by them
prior to the date of compliance with the Order recommend-
ed herein.
Upon the basis of the foregoing findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent Niagara Frontier Services, Inc. and
Respondent 500 Genesee Street Market, Inc., are jointly an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act, as are Respondents Niagara
Frontier Services, Inc. and 70 Hinchey Road Market, Inc.
2. Respondent Union and Charging Party Meat Cutters
are labor organizations within the meaning of Section 2(5)
of the Act.
3. By unlawfully assisting and supporting Respondent
assistance to Retail Clerks.
20 LL.G.W. v. N. L. R. B., 366 U.S. 731
21 See Shea Chemical Corporation , 121 NLRB 1027 ; Higgins Industries,
Inc., 150 NLRB 106. 107, In. 2b.
22 There is , no evidence , however, to support the allegation in the
Genesee store complaint that Hughes interrogated employees about their
union activities.
778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union, Respondent Employers engaged in unfair labor
practices within the meaning of Section 8(a)(2) and (1) of
the Act.
4. By accepting recognition as the sole bargaining
representative of employees and by executing and main-
taining collective -bargaining agreements as found herein,
Respondent Union restrained and coerced , and is restrain-
ing and coercing , the employees of Respondent Employers
in the exercise of the rights guaranteed in Section 7 of the
Act, in violation of Section 8(b)(1)(A) of the Act.
5. By threatening employees with discharge if they did
not join Respondent Union , Respondent Employers
violated Section 8(a)(1) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2 (6) and (7) of the
Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in the case, I
recommend that Niagara Frontier Services, Inc. and 500
Genesee Street Market, Inc., and Niagara Frontier Services
Inc. and 70 Hinchey Road Market, Inc., their officers,
agents, successors, and assigns; shall:
1. Cease and desist from:
(a) Contributing support and assistance to Respondent
Union or any other labor organization of its employees.
(b) Recognizing Respondent Union as the bargaining
representative of any of their employees for the purpose of
dealing with them concerning grievances, labor disputes,
wages , rates of pay, hours of employment, or other
conditions of employment, unless and until Respondent
Union shall have demonstrated its exclusive majority status
among such employees pursuant to a Board-conducted
election.
(c) Giving effect to the collective-bargaining agreements
of October 20, 1969, between Respondent Employers and
Respondent Union, or to any extensions, renewals or
modifications thereof, provided, however, that nothing
herein shall require Respondent Employers to vary or
abandon any wages , hours or other substantive features of
their relations with their employees which they have
established in the performance of the contracts, or to
prejudice the assertion by employees of any rights they may
have thereunder.
(d) Threatening employees with discharge if they do not
join Respondent Union.
(e) In any other manner interfering with, restraining, or
coercing its 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 authorized in Section 8(a)(3) of the Act.
23 In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings , conclusions , recommendations, and Recommended Order herein
shall, as provided in Section 102.48 of the Rules and Regulations, be
adopted by the Board and become its findings, conclusions, and order, and
all objections thereto shall be deemed waived for all purposes. 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
2. Take the following affirmative action, which will
effectuate the policies of the Act:
(a) Withdraw and withhold all recognition from Respon-
dent Union as exclusive representatives of their employees
for the purpose of dealing with them concerning grievances,
labor disputes, wages, rates of pay, hours of employment, or
other conditions of employment, unless and until said labor
organization shall have demonstrated its exclusive majority
status pursuant to a Board-conducted election among
employees at the stores involved in these cases.
(b) Jointly and severally with Respondent Union,
reimburse with 6 percent interest all employees and former
employees for all dues, initiation fees and other monies
illegally exacted from them pursuant to the provisions of
the union security clause or any checkoff authorizations
executed by them subsequent to the execution of the labor
agreements of October 20, 1969.
(c) Post at 500 Genesee Street Market, Inc. and 70
Hinchey Road Market, Inc., copies of the attached notice
marked "Appendix A."23 Copies of said notice, on forms
provided by the Regional Director for Region 3, after being
duly signed by Respondents or their representatives, shall
be posted by Respondents immediately upon receipt
thereof, and be maintained by them for 60 consecutive days
thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by Respondents to insure that said
notices are not altered, defaced, or covered by any other
material.
(d) Post at the same places and under the same conditions
as set forth in (c) above, and as soon as they are forwarded
by the Regional Director, copies of Respondent Union's
notice herein, marked "Appendix B."
(e) Notify the said Regional Director, in writing, within
20 days from the date of receipt of this Decision, what steps
Respondents have taken to comply herewith.24
The Respondent Union, their officers, representatives,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Acting as the exclusive bargaining agency of any of
Respondent Employers' employees at the stores involved
herein for the purpose of dealing with the Employers
concerning grievances, labor disputes, wages, rates of pay,
hours of employment, or other conditions of employment
unless and until said Union shall have demonstrated its
exclusive majority representative status pursuant to a
Board-conducted election among the employees at each
store.
(b) Giving effect to the October 20, 1969, collective-
bargaining contracts between the Employers and Respon-
dent Union, or to any extension, renewals, or modifications
thereof.
(c) In any other manner, restraining or coercing the
employees of the Employers in the exercise of the rights
THE NATIONAL LABOR RELATIONS BOARD" shall be changed to
read "POSTED PURSUANT TO A JUDGMENT OF THE UNITED
STATES COURT OF APPEALS ENFORCING AN ORDER OF THE
NATIONAL LABOR RELATIONS BOARD."
24 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read : "Notify said Regional Director, in
writing, within 10 days from the date of this Order, what steps the
Respondents have taken to comply herewith."
NIAGARA FRONTIER SERVICES, INC. 779
guaranteed them 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 authorized in Section 8(a)(3) of
the Act.
2. Take the following affirmative action which will
effectuate the policies of the Act:
(a) Jointly and severally with Respondent Employers
reimburse with 6 percent interest all employees and former
employees of Respondent Employers for all dues , initiation
fees and other monies illegally exacted from them as
described in "The Remedy" section of this decision.
(b) Post in conspicuous places in the Respondent Union's
business office , meeting halls and places where notices to its
members are customarily posted , copies of the attached
notice marked "Appendix B." 25 Copies of said notice, to be
furnished by the Regional Director for Region 3, shall, after
being duly signed by an authorized representative of
Respondent Union be posted immediately upon receipt
thereof, and be maintained by it for a period of 60
consecutive days thereafter . Reasonable steps shall be
taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(c) Furnish to the Regional Director signed copies of the
aforesaid notice for posting by Respondent Employers in
places where notices to employees are customarily posted.
Copies of said notice , to be furnished by the Regional
Director , shall after being signed by the Respondents, as
indicated be forthwith returned to the Regional Director
for disposition by him.
(d) Notify the Regional Director in writing within 20 days
from the receipt of this Decision and Recommended Order
what steps they have taken to comply herewith.26
25 See In 23, supra
26 See In 24, supra
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT assist or contribute support to Retail
Store Employees Union, Local 345, or to any other
labor organization of our employees.
WE WILL NOT recognize said Union as the exclusive
representative of our employees , unless and until the
said labor organization shall have demonstrated its
exclusive majority status pursuant to a Board -conduct-
ed election among our employees.
WE WILL NOT give effect to the collective-bargaining
contract of October 20, 1969, with said Union:
provided, however, that nothing in this order requires us
to vary or abandon those wages, hours, or other
substantive features of our relations with our employ-
ees, established in performance of said agreement, or to
prejudice the assertion by employees of any rights they
may have thereunder.
WE WILL jointly and severally with said Union
reimburse all present and former employees for any
dues, initiation fees, or other monies they paid said
Union pursuant to the terms of said contract or
checkoff authorizations executed subsequent to the
signing of said contract.
WE WILL NOT threaten employees with discharge
because they did not join Retail Store Employees
Union, Local 345.
WE WILL NOT in any other manner interfere with,
restrain , or coerce our employees in the exercise of their
right to self-organization , to form labor organizations,
to join or assist the above-named or any other labor
organization , to bargain collectively through represent-
atives of their own choosing , or to engage in other
concerted activities for the purpose of collective
bargaining or other mutual aid or protection or to
refrain from any or all such activities , 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 authorized in Section
8(a)(3) of the Act, as amended.
NIAGARA FRONTIER
SERVICES , INC. AND 500
GENESEE STREET MARKET,
INC. OR NIAGARA FRONTIER
SERVICES , INC. AND 70
HINCHEY ROAD MARKET,
INC.
(Employer)
Dated By
(Representative) (Title)
THIS IS AN OFFICIAL NOTICE AND MUST NOT
BE DEFACED BY ANYONE
This Notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material.
Any questions concerning this Notice or compliance with
its provisions , may be directed to the Board 's Office, 4th
Floor , The 120 Building , 120 Delaware Avenue , Buffalo,
New York 14202, Telephone 716-842-3112.
APPENDIX B
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT act as the exclusive bargaining
representative of any of the employees of Tops Market
at 500 Genesee Street and 70 Hinchey Road , unless and
until we have demonstrated our exclusive majority
representative status in an election conducted by the
National Labor Relations Board among the employees
in said stores.
WE WILL NOT give effect to the collective-bargaining
contracts dated October 20, 1969 , between the owners
of the stores and ourselves , or to any extension,
renewals or modifications thereof.
WE WILL jointly and severally with the Employers of
the employees in those stores reimburse all present or
former employees for dues, initiation fees, or other
780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
monies received from them after the execution of the
said labor agreements.
WE WILL NOT in any manner restrain or coerce the
employees of the stores in the exercise of their rights
guaranteed them 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 authorized in Section
8(a)(3) of the 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 compliance with
its provisions, may be directed to the Board 's Office, 4th
Floor, The 120 Building, 120 Delaware Avenue, Buffalo,
New York 14202, Telephone 716-842-3112.
RETAIL STORE EMPLOYEES
UNION, LOCAL 345
(Employer)
Dated By
(Representative) (Title)