Midway Golden Dawn

National Labor Relations Board - Board Decisions

Mar 10, 1989

293 N.L.R.B. 152 (N.L.R.B. 1989)

152 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Midway Foodmart , Inc d/b/a Midway Golden
Dawn and United Food & Commercial Workers
International Union , Local 23 , AFL-CIO-CLC
Cases 8-CA-19668-2 and 8-CA-19997
March 10, 1989
DECISION AND ORDER
By CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND HIGGINS
On August 9, 1988, Administrative Law Judge
Richard H Beddow Jr issued the attached deci
sion The Respondent filed exceptions and a sup
porting brief
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three
member panel
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, I and
conclusions2 and to adopt the recommended
Order
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Midway
Foodmart, Inc, d/b/a Midway Golden Dawn,
Wintersville, Ohio, its officers, agents, successors,
and assigns, shall take the action set forth in the
Order
I The Respondent has excepted to some of the judge s credibility find
rags The Board s established policy is not to overrule an administrative
law judge s credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
2 In adopting the judge s conclusion that the Respondent violated Sec
8(a)(5) and (1) by withdrawing recognition from the Union in November
1986 we note that the most significant evidence of purported employee
disaffection from the Union-and the only documentary evidence of
record-is the petition of November 19-20 This document did not
appear until 2 full months into the Respondents unlawful course of
avoidance of its bargaining obligations by refusing to accept or acknowl
edge the Union s attempted communications-conduct that strikes at the
heart of the Union s legitimate role as representative of the employees
Given the Respondents repeated and open rejection of the Unions of
forts to obtain a meeting it is clear that the Respondents conduct would
likely have contributed to the Union s loss of standing among the unit
employees thereby rendering unreliable the November petition See Lou
isiana Pacific Corp Y NLRB 858 F 2d 576 (9th Cir 1988)
Richard F Mack, Esq for the General Counsel
Jonathan E Jones Esq of Pittsburgh Pennsylvania for
the Respondent
James R Reehl Esq of Pittsburgh Pennsylvania for the
Charging Party
DECISION
STATEMENT OF THE CASE
RICHARD H BEDDOW JR , Administrative Law Judge
This matter was heard in Stubenville Ohio on March 2
1988 Subsequently , briefs were filed by the General
Counsel and the Respondent The proceeding is based on
charges filed December 15, 1986 , and April 9 , 1987 i by
United Food & Commercial Workers International
Union , Local 23, AFL-CIO-CLC The Regional Direc
tor s consolidated complaint dated May 22, 1987, alleges
that Respondent Midway Foodmart , Inc, doing business
as Midway Golden Dawn , violated Section 8(a)(1) and
(5) of the National Labor Relations Act by refusing to
bargain with the Union as exclusive representative of its
employees , refusing to provide information requested by
the Union which was necessary for and relevant to the
Union s performance of its function as the exclusive rep
resentative , and refusing to make payments to the
Union s Tri State U F C W and Employee Benefits
Funds without prior notice or bargaining with the
Union
On a review of the entire record in this case and from
my observation of the witnesses and their demeanor I
make the following
FINDINGS OF FACT
I JURISDICTION
Respondent is engaged in the retail sale of groceries at
Wintersville, Ohio and it has annual gross revenues over
$500 000 It annually purchases and receives goods and
materials valued in excess of $50,000 directly from points
outside Ohio and it admits that at all times material is
and has been an employer engaged in operations affect
mg commerce within the meaning of Section 2(2) (6)
and (7) of the Act It also admits that the Union is a
labor organization within the meaning of Section 2(5) of
the Act
II THE ALLEGED UNFAIR LABOR PRACTICES
Amelia Zatezalo began working at the involved gro
cery store in 1964 She was a shop steward in the store's
union and was instrumental in establishing Local 590 of
the United Food & Commercial Workers International
Union, AFL-CIO-CLC which was the Charging Party s
predecessor union at the Respondents facility (In Febru
ary 1983 Local 590 merged with Local 1407 in the for
mation of Local 23) The Union has represented employ
ees at the involved Wintersville grocery store for many
years and the most recent contract was effective between
December 16 1983, and December 16, 1986
On February 14 1984, Zatezalo and her husband
became owners of the store and as a successor employ
er recognized Local 23 as the employees collective bar
gaining representative Amelia Zatezalo became presi
dent of the Respondent There is no indication that her
husband plays any active role in Respondents affairs
i All following dates are in 1986 unless otherwise indicated
293 NLRB No 18
MIDWAY GOLDEN DAWN
Human Resources Management, Inc (H R M) became
Respondents labor consultant in January 1984, and pur
ports to represent Respondent in all facets of personnel
and labor relations, including representation in grievance
proceedings and labor negotiations At a meeting in Jan
uary the employees and a union representative were told
of Respondents purchase of the business and that
H R M (which also had a representative present at the
meeting) would handle all the labor negotiations The ex
isting contract contained a valid union security clause
however, this authority was withdrawn subsequent to a
petition by the employees (Case 8-UD-21 1) on Novem
ber 29, 1985
On Friday, September 19, 1986 (as reflected in the
postmark), the Union sent notification to the Respondent
of its desire to open contract negotiations This notice
was sent by certified mail in accordance with the Union s
regular practice As reflected on the returned envelope
(the envelope prominently identifies the Union in a pre
printed format), the certified mail was rejected by Re
spondent on September 23 and returned to the post
office (the return receipt bearing a stamp dated Septem
ber 24, Stubenville), and subsequently returned to the
Union by the postal service
On September 26 an RD decertification petition was
filed with the Board by employee Terese Antol (Case 8-
RD-1359)
Zatezalo testified that she went to Florida on Septem
ber 14 and that when she returned on September 21 or
22 she found a copy of the employees petition on her
desk She called H R M and sent it the copy The next
day she was asked by Terese Antol if she had received
her letter She replied yes, and assertedly had no
further conversation
Antol testified that she had talked to other employees
about their vote to remove the union security clause
(which had occurred before she was hired), and that
some employees got together and decided to seek de
certification of the Union She contacted the National
Labor Relations Board, prepared and circulated a peti
tion, sent it to the Board, and placed a copy on Zateza
lo s desk She failed to testify as to the dates when these
specific actions occurred and the petition was not made a
part of the record 2 Almost 2 months later a second pet!
Lion was prepared, after Antol was told by the Board
that it needed a copy This second petition (R Exh 2)
reflects the signatures of 26 employees bearing dates of
November 19 and 20, 1986
Antol testified that when she came to work no one
had told her to join the Union and she knew she had no
obligation to join She testified that she was not trying to
get rid of the Union for herself personally but that it
was her understanding that our contract was coming
due ' and that she had the interest of the majority of the
employees She did not explain the source of her under
standing but admitted that she knew Frank Botta, a rep
resentative of H R M , from his coming into the store
When asked if they ever discussed the petition, she an
2 The referred to petition copy given to Zatezalo was totally in
Antos s own handwriting as Antol testified that she did not have a photo
copier
153
swered that she had asked him questions and that he had
said he could not give her information because he repre
sented Zatezalo Antol also said she was not sure what
she did but may have given Botta a copy of the petition
after she got it signed
Meanwhile on October 7, 1986, the Union sent a
second certified letter to Respondent that repeated the
request contained in the September 19 letter and also in
cluded a request for Respondent's current seniority list
This letter also was rejected by Respondent and returned
to the Union by the postal service
Zatezalo testified that the letters were rejected because
she has a policy that certified mail be rejected when she
is not present to authorize its acceptance She further tes
tified that on the dates delivery was attempted she was
away from the store and that she was unaware of the
Union s attempts to reach her by certified mail
Following rejection of the Union s second letter,
Union Business Representative Anthony Helfer was in
structed to personally hand deliver a copy of the Octo
ber 7, 1986 letter to Respondents facility He went to
the store office about noon on October 21, 1986, and
spoke with Mildred Beatty, who is Zatezalo s daughter
Beatty said Zatezalo was not there Helfer gave the
letter to Beatty and Eleanor Pitzer, an employee who
had come into the office The letter was read by Pitzer
and Beatty and Beatty told Helfer that although the in
formation was upstairs she did not have authority to get
it for Helfer Helfer requested that Beatty give the letter
to her mother but received an ambiguous response 3
In late November Zatezalo was given a copy of the
second petition In this document, 26 (of between 29 and
31) employees indicated a desire that they no longer
wished to be represented by the Union Zatezalo asserts
that she was unaware the petition was being circulated as
she was away at a 3 day seminar in Buffalo and that she
played no role in its preparation 4 Zatezalo testified that
because of the petitions and her awareness of other com
plaints from and communications with employees she de
veloped the belief that the Union no longer held a major
sty status in the store She did not indicate on the record
how this belief was communicated to the store s labor
consultant However the Union was notified by letter of
November 24 from H R M Representative Frank Botta
3 Beatty has worked at the store since 1977 She testified that the only
time she had previously seen Helfer was at an arbitration proceeding and
that she had never seen him at the store or had any conversation with
him She said she did not know if she was at the store on October 21
Respondent s work schedule however indicated that she worked from
noon to 5 p in that day Otherwise she testified that she is at the store
on a daily basis and is often at her parent s home above the store when
not actually on the schedule Neither party called Pitzer as a witness I
find that Helfer s overall demeanor indicated that he was a credible wit
ness Under the circumstances especially those which indicate that
Beatty was at the store when Helfer assertedly came Beatty s long serv
ice at the store her relationship to the owner and the absence of cor
roborating testimony from an identified witness I do not credit her
denial of the conversation and I find Helfer s testimony to be the most
believable
* Conversely she also testified that she was unsure of the date she had
gone to Buffalo and answered a question that implied that the dates of
the Buffalo trip precluded her from being in the store when Helfer made
his October 21 visit
154 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
on behalf of the Respondent, that the Respondent was
withdrawing recognition from the Union
Thereafter, in January 1987, the Employer ceased
making monthly payments to the Union's employee pen
sion and benefit funds
III DISCUSSION
The Charging Party has been the certified collective
bargaining representative at the Respondent's store for
many years and, as such, it has the benefit of a rebuttable
presumption that it continued to enjoy majority repre
sentative status The fact that a union security provision
was withdrawn in November 1985 is irrelevant to the
Union's majority status and, accordingly, I find that the
presumption is operative and that a prima facie case has
been established that the Respondent Employer is obli
gated to bargain with the Union
A Refusal to Acknowledge Communications
The Union attempted to begin negotiations for a new
contract on September 19, approximately 3 months prior
to the expiration date of the existing contract on Decem
ber 16, 1986 The Union s method of communication was
by certified mail on September 19 and again on October
7, both addressed to Mildred Zatezalo, president of
Midway Golden Dawn, at the appropriate address and
the outside of the envelope clearly identified the Union
as the sender A third effort was a personal visit from the
union representative to the store on October 21 and hand
delivery of a letter to Zatezalo s daughter (a store em
ployee), and another employee, accompanied by a re
quest that the letter be conveyed to Zatezalo Although
the Respondent denies the personal delivery as found
above I credit the testimony of the union representative
that delivery was accomplished in the manner he de
scribed
Subsequent to each of the attempted communications,
the Respondents owner the owners daughter and some
employees engaged in a series of interrelated actions in
which the Respondent affirmatively precluded acknowl
edgment of the Union's repeated attempts to communi
cate with the Respondent's owner
My review of Zatezalo s testimony and demeanor
leads to the conclusion that she has made an apparent at
tempt to present the appearance of a person who has di
vorced herself from day to day knowledge and responsi
bility of personal labor related matters regarding her em
ployees However she also testified that she had been a
union steward and a prime mover in bringing the Re
spondent Union into the store and she purports to have
received and understood objective indications that most
of her employees no longer desired to be represented by
the Union On the other hand, she purports to refer ev
erything regarding labor matters to her consultant,
H R M, and to be completely unknowledgeable about
such matters Under these circumstances I find Zateza
lo's disclaimers to be implausible and so self serving as to
lack probative value, and I do not credit her testimony
that she was unaware of the Union s three attempts to
begin contract negotiations
I find that based on her experience as a company
president, an apparent principal operating officer, and a
former union member and steward, she was aware that
the then current contract was due to expire shortly, and
I infer that she had reason to believe any communication
from the Union at this time would relate to the subject
of a new contract This is especially true in that, in an
apparent response to Zatezalo's expressed fears about
keeping the store open, Respondent's employees had re
quested that the Union seek reopening of the contract in
the fall of 1985 and that after meetings with the Union,
the Union granted the Company concessions that it de
sired Accordingly, I do not credit her denial that she
was aware of the contracts impending expirations This
denial was accompanied by her implausible and gratui
tous testimony that she "didn't pay any attention to it be
cause she didn t handle that stuff " Zatezalo testified that
she had a close personal relationship with her employees
and would probably know anything that happened at the
store She had two daughters and other relations who
worked at the stores and, as noted, she lived above the
store, all factors that would support the inference that
she would have been made aware of each of the three
union attempts to reach her
The two rejected certified letters were in envelopes
that clearly identified the Union as the sender the letters
were addressed to Mildred Zatezalo president of
Midway Golden Dawn, and the letters were specifically
rejected by someone at the store I find that Zatezalo
had returned from Florida when the first certified mail
delivery was attempted and I infer that a decision was
made to disclaim her presence and reject the letter be
cause of its union letterhead
Although the Respondent claims a policy of not per
mitting certified mail to be received when Zatezalo was
not present at the store, the record does not persuasively
establish that such a policy existed that such a policy
was clearly communicated to its employees, or that Zate
zalo was in fact not present at her residence at the same
address as the store
Zatezalo testified that the policy was uniformly ad
hered to, but she admitted under cross examination that
other persons at the store had signed for certified mail
Subsequently she explained that certified mail directed
generally to the store could be accepted but not her per
sonal mail As noted the letter here was addressed to
both Moreover, it was established that at least two certi
feed letters from the Board addressed to Midway Food
mart, etc Attn Mildred Zatezalo, were signed for by
her daughter employee Beatty on May 23, 1987 and by
employee Pitzer on December 18, 1986
Shortly after Zatezalo returned to the store from her
Florida trip, the employee decertification petition sur
faced and appeared on Zatezalo s desk Zatezalo testified
"Approximately nine employees appeared to have family ties to the
owner Employee Hattie Vojvodich is married to Owner Zatezalo s
nephew JoAnn Nick Mark and Amelia Volvodich also are employees
In addition to Zatezalo s daughter Mildred Beatty a list of employees
also includes Jerry Beatty Marcella (identified as a daughter) and Mike
Zatezalo
MIDWAY GOLDEN DAWN
that her immediate reaction was to call the H R M rep
resentative and send him a copy
Respondent apparently contends that the petition was
prepared sometime prior to Zatezalo 's return from Flort
da and prior to the attempted delivery of the Union's
letter , however , no specific evidence was presented that
would establish this as a fact
Employee Antol, who circulated the petition , did not
specifically indicate when the petition was prepared, cir
culated , or signed No copy of the petition was placed
into evidence and none of the employee petitioners were
called to testify regarding the date or the circumstances
under which it was signed Moreover , no corroborative
letter , copy, or other communication , such as any notifi
cation to the Union, was made by any of the employees
Antol admitted, however, that she had spoken with
H R M 's representative about the petition and may"
have sent them a copy Under these circumstances, I find
that there is no probative evidence of record that would
show that any independent employee action with regards
to decertification took place prior to the attempted deliv
ery of the Union s letter requesting contract negotiations
Respondents second refusal to receive certified mail
occurred on an unspecified date after the letter was
mailed on October 7 Zatezalo asserts she was not
present to accept it because she was at a convention in
Warren, Ohio, from Sunday, October 5, through Tues
day, October 7 It would appear, however, that inas
much as the letter was mailed in Pittsburgh on October
7, the date of attempted delivery would have been
Thursday October 9 (or 1 day before or after), days
when Zatezalo was not shown or alleged to have been
out of town and unable to accept certified mail
It also was not established that Zatezalo was out of
town on October 21, when hand delivery of the letter
was attempted Although Zatezalo testified that neither
her daughter nor employee Pitzer told her that Helfer
had come to the store and tried to deliver a letter to her,
for the reasons otherwise noted above, I find such testi
mony to be inherently uncredible and I do not credit her
purported lack of knowledge of this delivery
I therefore conclude that the Union is shown to have
made three valid communications of its request to bar
gain on or about September 23 and October 9 and 21 I
further infer that Respondent knowingly attempted to
preclude receipt of these communications from the
Union because it had reason to believe they concerned a
request to bargain with respect to the forthcoming expi
ration of their collective bargaining agreement Under
these circumstances Respondents refusal to acknowl
edge communications from the Union is an unfair labor
practice and further constitutes a refusal to bargain in
violation of Section 8(a)(1) and (5) of the Act, as alleged
As indicated above, I do not credit the testimony that
Respondents president and controlling official was com
pletely unknowledgeable of her Company s labor related
affair
Independent of this conclusion, however, I also find
that a company's burden of ultimate responsibility cannot
be ignored by or transferred from its president owner
Here, Zatezalo can not purport ignorance and delegate
all responsibility for the Company s labor relations to its
155
agent , H R M She cannot say "take care of it , I don't
want to know about it" and thereby be relieved of all re
sponsibilities under the National Labor Relations Act
While it may be inferred that Respondent 's labor rela
tions strategy has been orchestrated by Consultant
H R M , it is clear that this has been done in fulfillment
of Zatezalo 's own desires and directions If in fact these
practices could have actually insulated her from any
knowledge of the Union 's attempt to initiate collective
bargaining , this must be considered to have been done at
Respondent 's peril and, accordingly , I find that the com
munications otherwise shown to have been made by the
Union are sufficient to establish knowledge that must be
imputed to Respondent 's responsible official , Zatezalo
Although the Respondent suggests that the Union's
communication effort should have been directed to its
consultant, the Union noted that it is their standard pro
cedure to send all contract negotiation notices directly to
the Employer rather than representatives as the latter are
apt to change Otherwise, I find that delivery at the Em
ployer s regular place of business and mailing address
constitutes a valid communication of a request to negoti
ate regardless of the existence of any consulting arranged
between the Employer and a representative
B Withdrawal of Recognition and Refusal to Bargain
Respondent withdrew recognition of the Union by
letter to the Union dated November 24, 1986, signed by
a representative of H R M This letter stated
The employers good faith doubt is supported by
a National Labor Relations Board certified UD
election conducted on November 29, 1985, a decer
tification petition pending with the National Labor
Relations Board and the supporting showing of in
terest delivered to the employer, withdrawal cards
sent to a majority of employees and a recent peti
tion received by the employer and signed by a ma
jority of the employees stating that the employees
do not wish to be represented by Local 23
As noted above, the Respondent engaged in negotiations
with the Union and obtained contract concessions at a
time contemporaneous with the UD (security clause
withdrawal) proceeding I also find this recognition of
the Union s negotiating rights precludes any probative
affirmative basis for its belief based on the results of the
November 1985 election Moreover that proceeding was
directed solely at the deduction of union dues from em
ployees paychecks All purported employees resigna
tion statements (R Exh R 1), which were the basis for
the November 1985 proceeding in which the union secu
rity clause was withdrawn, are set forth in the identical
format as follows
I work at Midway Golden
Dawn and I do not want anymore Union dues de
ducted from my pay check
These employees statements were conveyed to the
Union along with a letter dated December 13 1985, in
which the Respondent, through H R M notified the
156 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Union that it would cease deduction of dues from these
employees and I find them to be valid for this purpose
The statements, however, fall far short of being an un
equivocal resignation of union membership The plain
language of the statements is directed at the withholding
of dues not union membership, and there is nothing to
indicate that any employee could not continue to retain
union membership (by paying dues directly to a union
steward or business representative, for example) There is
no indication that any individual employee conveyed any
specific form of membership resignation to the Union at
any time and there is no other resignation documentation
prior to the so called second petition which bears em
ployee signature dates of November 19 and 20
There is no probative evidence regarding the specific
contents or dates of employees' signatures in the first pe
tition, and I am not persuaded that it was prepared prior
to the Respondent's refusal to accept the Union's first
certified letter in September The testimony of employee,
Antol, who prepared the petition, stands alone The first
petition apparently was not received by the Board in
Pittsburgh until September 26 In view of the timing and
other circumstances noted above, I find Antol s testimo
ny to be implausible and unpersuasive as it was vague,
unspecific regarding dates, and stands uncorroborated by
any written document or by the testimony of any of the
alleged signees
The burden is on an employer to rebut the presump
tion of continuing majority status and here there is no
persuasive showing that the Respondent had an objective
basis for a good faith belief regarding the majority status
of the Union even at the time its representative sent its
letter withdrawing recognition
The limited number of employees authorizing dues de
ductions is not reliable evidence of employees dissatis
faction and cannot be considered a probative objective
consideration See Alexander Linn Hospital Assn 288
NLRB 103 (1988) Moreover the mere filing of a decer
tification petition neither requires nor permits an employ
er to withdraw from bargaining Dresser Industries 264
NLRB 1088 (1982), and it does not afford an employer
the privilege of taking the further step of withdrawing
recognition See Alexander Linn Hospital Assn , supra
Here Respondents withdrawal of recognition was
made precipitously without benefit of waiting for the
Board s procedures, and it was made in an atmosphere
tainted by Respondents repeated unfair labor practices
in rejecting and ignoring the Union's attempts to bargain
Otherwise, the sequence of events shown above indicate
that employee manifestations of union disenchantment
were generated in apparent reaction to attempted com
munication by the Union made shortly before the time
for expiration of the existing bargaining agreement
Respondent did not wait for the results of the election
sought by the employees petition to thereby resolve any
of its asserted doubts I conclude that the timing of its
overall actions showed its assertation of a doubt of ma
jonty status was a pretext to avoid its statutory duty to
bargain with the Union for a new contract Accordingly,
I conclude that the General Counsel has shown that Re
spondent has refused to bargain with the Union and has
violated Section 8(a)(5) of the Act as alleged
The allegations in the complaint with respect to the
failure to provide information are admitted by Respond
ent in its answer and Respondent admits that it has re
fused to make payments into the various benefits funds
Accordingly and in view of the conclusions made
above it is clear that Respondents failures and refusals
in these respects constitute further violation of Section
8(a)(1) and (5) of the Act as alleged
CONCLUSIONS OF LAW
1 Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act
2 The Union is a labor organization within the mean
ing of Section 2(5) of the Act
3 At all times material, the Union has been the exclu
sive bargaining representative of the employees within
the meaning of Section 9(a) of the Act
4 By refusing to receive appropriately delivered com
munications from the Union and by refusing to bargain
with the Union, on request, concerning the wages, hours,
and other terms and conditions of employment for em
ployees in the above bargaining unit, and by failing and
refusing to furnish the Union information necessary for
and relevant to the performance of its collective bargain
ing functions, Respondent has engaged in and is engag
ing in unfair labor practices within the meaning of Sec
tion 8(a)(1) and (5) of the Act
5 By refusing since January 10, 1987, to make pay
ments to the Union s Tri State UFCW and employee
benefits funds without prior notice to or bargaining with
the Union, Respondent has engaged in unfair labor prac
tices within the meaning of Section 8(a)(1) and (5) of the
Act
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, it is recommended that Respond
ent cease and desist therefrom and take certain affirma
tive action designed to effectuate the policies of the Act
Having found that the Respondent refused to furnish
information and bargain collectively with the Union as
the exclusive representative of its employees in the ap
propriate unit, I will recommend that the Respondent on
request provide necessary and relevant information and
bargain collectively with the Union as such representa
tive and if an understanding is reached embody the un
derstanding in a signed agreement Having found that the
Respondent unilaterally ceased making required pay
ments to the union and employees benefits funds Re
spondent also will be ordered to resume making such
payments and to reimburse the funds for all payments it
has failed to make, with interest to be computed in the
manner prescribed in Merryweather Optical Co, 240
NLRB 1213 1216 fn 7 (1979)
Otherwise it is not considered to be necessary that a
broad order be issued
MIDWAY GOLDEN DAWN
K
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend
ed6
ORDER
The Respondent Midway Foodmart, Inc d/b/a
Midway Golden Dawn, Wintersville, Ohio its officers
agents successors, and assigns, shall
1 Cease and desist from
(a) Refusing to receive appropriately delivered com
munications from its employees certified collective bar
gaining representative
(b) Refusing to bargain collectively with the Union on
request as the exclusive representative of all employees
in the appropriate unit with respect to rates of pay,
wages hours of employment or other terms and condi
tions of employment
(c) Refusing to furnish the Union with information rel
evant to the Union s collective bargaining duties
(d) Unilaterally refusing to make payments to the
Union s Tri State UFCW and employee benefits funds
(e) In any like or related manner interfering with, re
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) On request provide the Union with information
relevant to the Union's collective bargaining duties and
bargain collectively with the Union as the exclusive rep
resentative of all employees with respect to rates of pay
wages hours of employment, and other terms and condi
tions of employment and, if any understanding is
reached, embody such understanding in a signed agree
ment
(b) Establish procedures whereby communications
from the Union to the Respondents business and or its
president will not be rejected but will be received and
delivered to Respondents president
(c) Resume making payments to the Union s Tri State
UFCW and employee benefits funds and reimburse the
funds for all payments that it failed to make with inter
est in the manner specified in the remedy section above
(d) Preserve and on request make available to the
Board or its agents for examination and copying all
payroll records, social security records, timecards per
sonnel records and reports, and all other records neces
nary to analyze Respondents obligations to reimburse the
Union s benefits funds for losses suffered as a result of
the above described unfair labor practice
(e) Post at its Wintersville Ohio facility, copies of the
attached notice marked Appendix ' Copies of the
6 If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations the findings conclusions and recommended
Order shall as provided in Sec 102 48 of the Rules be adopted by the
Board and all objections to them shall be deemed waived for all pur
poses
° If this Order is enforced by a judgment of a United States court of
appeals the words in the notice reading Posted by Order of the Nation
a] 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
157
notice on forms provided by the Regional Director for
Region 8, after being signed by Respondent's authorized
representative, shall be posted by Respondent immediate
ly upon receipt and maintained for 60 consecutive days
in conspicuous places, including all places where notices
to employees are customarily posted Reasonable steps
shall be taken by Respondent to ensure that said notices
are not altered, defaced or covered by an other material
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re
spondent has taken to comply
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or
dered us to post and abide by this notice
Section 7 of the Act gives employees these rights
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec
tion
To choose not to engage in any of these protect
ed concerted activities
WE WILL NOT refuse to receive appropriately deliv
ered communications from United Food & Commercial
Workers International Union Local 23 AFL-CIO-
CLC, our employees' collective bargaining representa
tive
WE WILL NOT refuse to bargain collectively with the
Union on request as the exclusive representative of our
employees in the appropriate unit with respect to rates of
pay wages hours of employment or other terms and
conditions of employment
WE WILL NOT refuse to furnish the Union with infor
mation relevant to the Union s collective bargaining
duties
WE WILL NOT unilaterally refuse to make payments to
the Union s Tri State UFCW and employee benefits
funds
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
the rights guaranteed them by Section 7 of the Act
WE WILL resume contributions to the Tri State
UFCW and employee benefits funds and transmit to the
funds all contributions we have withheld since January
10, 1987 with interest
WE WILL on request provide the Union with informa
tion relevant to the Union s collective bargaining duties
and bargain collectively with the Union as the exclusive
representative of our employees with respect to rates of
pay, wages, hours of employment and other terms and
conditions of employment and if any understanding is
158 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
reached , embody such understanding in a signed agree president will not be rejected , but will be received and
ment delivered to the appropriate official
WE WILL establish procedures whereby communica
tions from the Union to our business office and or our MIDWAY FOODMART, INC D/B/A MIDWAY
GOLDEN DAWN