Shoppers Choice

National Labor Relations Board - Board Decisions

Jul 31, 1986

280 N.L.R.B. 1306 (N.L.R.B. 1986)

1306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Big R Distributors , Inc. d/b/a Shoppers Choice and
United Food & Commercial Workers Union
Local 212 . Case 3-CA-12586-2
31 July 1986
DECISION AND ORDER
BY MEMBERS JOHANSEN , BABSON, AND
STEPHENS
On 29 January 1986 Administrative Law Judge
James F. Morton issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed an answering 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 briefs and
has decided to affirm the judge's rulings, findings 2
and conclusions 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, Big R Dis-
tributors, Inc. d/b/a Shoppers Choice, Amherst
and North Tonawanda, New York, its officers,
agents, successors, and assigns , shall take the action
set forth in the Order.
DECISION
STATEMENT OF THE CASE
JAMES F. MORTON, Administrative Law Judge. The
amended complaint , as further amended at the hearing,
alleges that Big R Distributors , Inc. d/b/a Shoppers
Choice (Big R) has committed unfair labor practices in
violation of Section 8(axl) and (5) of the National Labor
Relations Act by having refused to recognize and bar-
gain collectively with United Food & Commercial
Workers Union, Local 212 (the Union) as the exclusive
representative of Big R employees employed respectively
in two separate units : one at Big R 's store in Amherst,
New York, and the other at its store in North Tonawan-
da, New York. The amended complaint further alleges
that Big R has also violated Section 8(a)(1) and (5) by
having failed to bargain with the Union concerning the
effects on the North Tonawanda unit employees of the
closing of that store.
The underlying issue in this case is whether Big R is
the successor to the former owner/operator of the Am-
herst and North Tonawanda stores. The former owner,
according to the complaint allegation, is Parker Welling-
ton, Inc. d/b/a Shoppers Choice (P.W.). Big R asserts
that it is not the successor to P.W .; it also puts in issue
the Union 's alleged majority status in the Amherst unit.
I held the hearing in Buffalo , New York, on 7 and 8
October 1985 . On the entire record , including my obser-
vation of the demeanor of the witnesses, and after due
consideration of the briefs filed by the General Counsel
and Respondent Big R, I make the following
FINDINGS OF FACT
1 The Respondent has excepted to some of the judge's credibility find-
ings. 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), eufd. 188 F.2d 362 (3d Cit. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
a In adopting the ,fudge 's credibility resolutions , we note that, although
employee Sharyl Taylor did not specifically testify that the Respondent's
Amherst store manager , Victor Malucci, did not tell employees that they
had no expectancy of recall , she did testify that she never asked Malucci
about her chances of recall upon her layoff, and that her notice of layoff
had been given to her in the same way as on past occasions . Further, the
judge relied on other reasons for discrediting Malucci's testimony, which
we agree support his credibility resolutions.
In adopting the decision , we correct certain inadvertent errors made
by the judge. First, it is clear from the record that the six Amherst store
employees were informed that the store was closing on 7 February 1985,
rather than 7 January 1985 . Second, it is clear from the record that Edna
Nedopak, rather than Edna Matusek, stated that she gave her application
to Ragusa Finally, it is clear from the record that the Respondent 's pred-
ecessor reduced the store selling area from 40,000 square feet , to 8000
square feet , rather than to 1000 square feet , as found by the judge. These
errors are insufficient to affect the results of our decision.
Michael Cooperman, Esq., for the General Counsel.
Thomas Gill, Esq. (Saperston, Day Galliclc, Kirschner &
Gaglione), of Buffalo, New York , for Big R Distribu-
tors, Inc.
1. JURISDICTION-LABOR ORGANIZATION
Based on the stipulations received at the hearing, I
find that (1) the operations of Big R, a retailer of mer-
chandise , meet the Board 's retail jurisdictional standard,
and (2) the Union is a labor organization as defined in
the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Big R's alleged predecessor , P.W., itself had succeeded
another retailer as the party to a collective-bargaining
agreement with the Union covering , inter alia, the stores
at Amherst and North Tonawanda. That other retailer,
Century Hardwares (Century), had owned and operated
57 catalog showroom stores, located in 7 States . Century
sold television sets, jewelry, and other fairly expensive
merchandise. In 1973 the Union had been certified as the
bargaining representative at the Amherst store; in 1974,
Century had voluntarily recognized the Union as the
representative of the employees at the North Tonawanda
store. Century and the Union treated both the units as
separate.
In 1981, petitions were filed in Case 3-UD-98 and 3-
UD-99 for deauthorization elections at two Century
stores, not otherwise involved in this case. The Union
had sought to have those petitions dismissed on the
280 NLRB No. 148
SHOPPERS CHOICE
ground that the separate units at those two stores had
been, through contract negotiations over the years,
merged into an overall unit. The Union had urged that
the other stores it represented, including the Amherst
and North Tonawanda locations involved in the instant
case , had also been merged into that single overall unit.
The Union's contention was rejected in the Decision and
Direction of Election that issued in those UD cases.
Thus, "all stores [were held to] operate as separate self-
contained units"; the employees in each store had origi-
nally been represented by the Union in separate units;
and there was no evidence that the parties agreed to ex-
tinguish the existence of the separate store units.
In 1982 Century and the Union signed a renewal con-
tract covering six separate units of employees, including
one at Amherst and another at North Tonawanda. That
contract was negotiated by a committee of employees
from each unit and was ratified by majority vote at a
meeting of employees of all six stores.
The former director of personnel for Century testified
that by December 1983, Century had closed all its cata-
log stores and that the individuals who owned Century
formed P.W., which then took over the operations of the
Amherst and North Tonawanda stores, among others.
P.W. then recognized the Union as bargaining agent for
the respective store units, including Amherst and North
Tonawanda. P.W. assumed the 1982-1985 collective-bar-
gaining agreement and applied its terms to those units.
In January 1984 a number of the Amherst employees
were laid off according to seniority. That layoff took
place at the end of the Christmas-New Year shopping
season . Those laid-off employees were recalled in about
April and they worked until about July 1984 when they
were again laid off. They were recalled in October. As
discussed below, there were layoffs again in January
1985 at the end of the selling season . In addition to the
employees on the seniority list at Amherst, there have
been at times seasonal employees, as they are termed,
employed at Amherst but these seasonal employees are
not involved in this proceeding.
When P.W. was formed in late 1983, Century provid-
ed it with management services. In their initial phase of
operations , P.W. stores had a mix of Century merchan-
dise (television sets, jewelry, etc.) and of inexpensive
houseware and similar merchandise. The latter merchan-
dise is termed "deep discount" as it is customarily
bought at distressed prices in bulk from manufacturer
overruns; this deep discount merchandise was sold by
P.W. at retail at less than $5 per item.
By July 1984 P.W. had undergone a change in top
management personnel and had also reduced the size of
some of its stores. At Amherst, it no longer needed the
warehouse area of 20,000 square feet. It also reduced the
selling area from 40,000 square feet to about 1000. The
complement of unit employees also had been materially
reduced by July 1984. Where there had been about 33
unit employees at Amherst when Century operated it,
the Amherst store had only 13 unit employees as of July
1984.
In February 1985, Big R took over the operations at
Amherst and North Tonawanda. A brief description of
its operations follows.
1307
B. Big R
The sole stockholder of Big R is its president, Antho-
ny Ragusa. He spends virtually all his working time on
the telephone, locating and buying distressed merchan-
dise. Purchases vary in amounts from $1100 to $100,000.
This merchandise is sent to Big R's warehouse where
employees price it according to Ragusa's direction. The
merchandise is then shipped to Big R stores, according
to a formula based on store volume. As of January 1985
Big R had eight stores, all within a 20-mile radius of its
office, located in Buffalo, New York.
C. Big R's Takeover of Several P. W. Stores
Big R bought the inventory and fixtures of three P.W.
stores-those in Amherst, North Tonawanda, and Niaga-
ra Falls. It was unable to secure an assignment of the Ni-
agara Falls lease . Consequently, the merchandise in that
store was removed, presumably to Big R's warehouse.
Big R took over the North Tonawanda store of P.W.
on 7 February 1985, a few hours after P.W. had closed
it. All the former P.W. employees there were hired by
Big R. They had been represented, as noted above, by
the Union as a separate collective-bargaining unit. They
continued to work at that location, under the same man-
ager , until it closed on about 1 July 1985.
Big R also took over the Amherst store several hours
after P.W. closed. The operations of the Amherst store
are described next.
D. The Operations of the Amherst Store
When Century had operated the Amherst store, one
group of employees worked in the warehouse area un-
loading and stocking the merchandise, picking orders,
and performing related fuctions. The other group assisted
customers in the selling area, rang up sales, and packaged
items. These groups were supervised by the store manag-
er and assistant manager. When P.W. took over, the
same individuals were retained as store manager and as
assistant manager. The employee complement, as noted
earlier, was reduced under P.W. and all P.W. employees
performed the same functions; unloading, stocking, pric-
ing, and cashiering.
The P.W. employees punched a timeclock and used
cash registers which were tied into a computer to enable
P.W. to keep track of inventory. These employees had
been given handbooks containing work rules and other
useful information; they were covered by the 1982-1985
collective-bargaining agreement which contained griev-
ance-arbitration provisions and other features.
The P.W. Amherst store manager reported to a district
manager who, in turn, reported to a regional manager.
When Big R took over the operation of the Amherst
store, it employed the same store manager and assistant
manager. Big R has no administrative hierarchy; its store
managers report to Anthony Ragusa, its president. The
employees punch the same timeclock as they did when
they worked for P.W. They operate cash registers which
are not connected to a computer. Big R pays its stores
employees the statutory minimum wage and provides
them with no benefits, other than those required by stat-
1308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ute. Ragusa testified that he may give an employee a
week's vacation based on length of service. Big R em-
ployees are given no handbooks or written work rules.
Ragusa testified that he approves the hiring of all em-
ployees after they are interviewed by the store manager.
His explication of this testimony reveals that the store
manager is expected to first send a prospective employee
for a lie detector test, conducted by an outside firm, and
to await word from Ragusa's office whether the individ-
ual had passed. In practice, as is evident from the uncon-
troverted account of one of the General Counsel's wit-
nesses, employees have been hired and have begun work
for Big R without having taken the test.
Because Ragusa's workday is principally devoted to
purchasing and administrative tasks, he visits the Big R
stores on a relatively infrequent basis.
D. The Union's Alleged Majority Status at Big R's
Store in Amherst
When Big R took over the Amherst store from P.W.
in February 1985, it hired five employees. The General
Counsel contends that three of those five employees had
been P.W. employees at that location whom the Union
represented and thus the General Counsel argues that the
Union enjoyed majority status of Big R's employees at
Amherst. Respondent asserts that two of the three
former P.W. employees whom it hired, namely, Sharyl
Taylor and David Sinski, had been permanently laid off
by P.W. in January 1985; Respondent contends therefore
that they were, as of then, no longer employees of P.W.
Respondent thus would not count those two towards the
Union's majority. To put the matter in context, I will
review briefly the manner in which the Amherst store
was staffed.
On 7 January 1985 the P.W. store manager at Amherst
informed the six employees there that P.W. was closing
that store and that they were no longer in its employ. He
gave them Big R's job application forms to fill out and
asked them to wait for Big R's president, Ragusa, to talk
with them.
Ragusa arrived at 1:20 p.m. that day and asked to talk
to each. One of the six, Barbara Fisher, told him that he
could not talk to them separately, but only as a group.
She also said that she heard that Big R pays only the
minimum wage . Ragusa said that that was correct and
that he would talk to any of them interested in being
hired. Fisher answered that none of them was interested
as they "are union." One of the group, Edna Matusek,
stated, however, that she needed a job; she gave her
completed application to Ragusa. He then hired her. She
was the only one of the six to apply.
Regarding the status of the two former P.W. employ-
ees laid off in January 1985, Taylor and Sinski, the Gen-
eral Counsel adduced evidence that their names were on
P.W.'s seniority list for Amherst as employees who were
"laid off." As noted earlier, Century and P.W. had a pat-
tern of laying off and recalling employees on the seniori-
ty list, most lately exemplified by two occasions in 1984.
In support of its contention that Taylor and Sinski had
been permanently laid off by P.W. in January 1985, Re-
spondent called its Amherst store manager, Victor Ma-
lucci. He testified that he had been the store manager at
Amherst under Century and later under P.W. His testi-
mony on direct examination was that he was of the opin-
ion that the employees who were laid off by P.W. in
January 1985 had no reasonable expectancy of recall.
During his cross-examination, he acknowledged that he
had no knowledge in January 1985 that P.W. might close
the Amherst store. He based his opinion on his having
been told by P.W.'s president that advertising would be
reduced. Malucci then related that all the employees
P.W. laid off in January had asked him then of their
chances of recall and that he told each that there were
none. He later modified that answer, on further cross-ex-
amination , by stating that one of the laid-off employees
had not asked as that employee had earlier given notice
that she would leave P.W.'s employ for a job elsewhere.
To rebut Malucci's account, the General Counsel
called Sharyl Taylor. She testified that she telephoned
Malucci when she heard Big R took over the Amherst
store and that he hired her. She has since left Big R to
return to school. She testified that she had never asked
Malucci about her recall prospects when he laid her off
in January 1985, that he never told the employees laid
off then that they would not be recalled, and that the
layoff notice had been given in January 1985 in the same
way layoff notices had been given on similar occasions
previously.
I do not credit Malucci's account. It seems to me that
Malucci embellished his account too much by testifying
on cross-examination that he had expressly informed the
laid-off employees that their chances of recall were nil.
In that regard, I note, too, that it is improbable that he
would have told longtime employees that they would
not be recalled, based only on his related testimony that
P.W.'s president had told him at one time that advertis-
ing was being cut back. Incidentally, it seems obvious
that advertising would be cut back at the end of the
Christmas-New Year's season . I also place no probative
weight on Malucci's testimony insofar as it purports to
be a business projection for the Amherst store. That tes-
timony is superficial and conclusory. Further, it seems to
be based solely on surmise as Malucci clearly was not
privy to policy decisions being weighed by the corporate
officers of P.W. I credit Taylor's account over his, for
the further reason that Taylor appears to be disinterested
as she voluntarily left Big R's employ to return to
school. I
E. The Union's Demands
On 12 February 1985 the Union wrote Big R to re-
quest it meet with the Union respecting the Union's
claim that Big R was the successor to Century, a/k/a
Shoppers Choice. Big R's attorney responded that it pur-
chased P.W.'s inventory and other interests but did not
take over P.W.'s "business." The Union wrote Big R
again on 5 March 1985 demanding recognition and stat-
ing that, if Big R does not respond, its silence would be
' The General Counsel asked that I draw an adverse inference against
Respondent for its failure to call Sinski as a witness . Sinski is now an "as-
sistant manager-trainee" for Big R. There is no evidence that that posi-
tion is supervisory I ace no basis to draw that inference.
SHOPPERS CHOICE
construed as a rejection of that demand . Big R did not
respond.
F. Analysis
The General Counsel has submitted evidence that es-
tablishes that the Amherst, North Tonawanda, and other
stores of Century had been separate bargaining units
when the Union achieved representative status respec-
tively in each . These respective separate units each had
separate seniority rosters, had been locally managed in
their day-to-day operations including hiring, had experi-
enced virtually no interchange with employees from
other units, and significantly had been treated by Centu-
ry, P.W., and the Union as separate units. There were
factors which pointed to the existence of an overall unit,
as the Union had argued in the 1981 UD cases. Those
factors were carefully considered then and found want-
ing, insofar as the Union had relied on them in its effort
to show that only an overall Century unit was appropri-
ate.
Big R now points to its own operations and urges that
it is not the successor to P.W. as the Amherst and North
Tonawanda stores had been merged with Big R 's overall
unit. There is, however, but little factual basis in the
record before me to support a finding that the separate
units as they existed at Amherst and North Tonawanda
have, through merger, lost their respective identities. If
anything , their separate standing is clearer after Big R's
takeover; those two stores are no longer part of an ad-
ministrative district or region as they had been under
P.W. but are operated by Big R with considerable local
autonomy . Recently the Board has stated , "It is well es-
tablished , however, `that successorship obligations are
not defeated by the mere fact that only a portion of a
former union-represented operation is subject to the sale
or transfer to a new owner, so long as the employees in
the conveyed portion constitute a separate unit ...."'
Louis Pappas' Restaurant, 275 NLRB 1519 (1985). The
separate identity of each unit-that at Amherst and the
other at North Tonawanda-continued on Big R's take-
over, based on the considerations set forth above. It
would be improper also to hold now that these separate
units have lost their respective identities through their
merging into all of Big R 's operations . Such a holding
would seem to turn on union , not unit, considerations for
the Union, having lost in 1981 when it sought an overall
unit, should not again lose when it now seeks to maintain
the separate units found appropriate in the UD cases and,
for which there have been no substantive changes. That
P.W. had operated the Amherst and North Tonawanda
stores for but 1-1/2 years or so does not warrant recon-
sideration of the unit issue. Cf. Renaissance West Mental
Health, 276 NLRB 441 (1985), in which the Board found
successorship though one of the predecessor employers
had functioned for only a 7-month interval.
In deciding successorship issues, the relevant question
is whether substantially the same business continues, with
substantially the same employees under the same supervi-
sion . See Stewart Granite Enterprises, 255 NLRB 569
(1981); Jeffries Lithograph Co., 265 NLRB 1499 (1982).
Majority status of a union is a prime factor . Mondovi
Foods Corp., 235 NLRB 1080, 1082 (1978).
1309
At North Tonawanda, Big R hired a majority of the
unit employees represented by the Union and those em-
ployees went to work there with no hiatus; they contin-
ued to perform the same functions as before. I therefore
find that, at North Tonawanda, Big R was the successor
to P.W. and that Big R had the duty to recognize and
bargain with the Union , on request, concerning the em-
ployees in that unit . Big R's failure to honor the Union's
demand for recognition was thus an unfair labor practice
violative of Section 8(a)(5) and (1) of the Act; by its re-
jecting the Union's demand, Big R effectively precluded
bargaining about the effects on unit employees of the
closing of the North Tonawanda store and thereby sepa-
rately violated Section 8(a)(5) and (1). See Contris Pack-
ing Co., 268 NLRB 193 (1983).
Respecting the Amherst store, the credited evidence
establishes that the laid-off employees of P.W. had a rea-
sonable expectancy of recall. The size of the unit has
been trimmed substantially since late 1983 to counterbal-
ance the structural changes arising from P.W.'s having
taken over from Century. Insofar as the remaining unit
of 13 employees is concerned, the evidence discloses that
those who were laid off in January had been laid off in
the same manner as twice previously in 1984 and twice
recalled. Respondent offered only discredited, unsupport-
ed surmise by its Amherst store manager to rebut that
evidence. Thus, I fmd that the Union represented three
of the five unit employees when Big R began operations
at Amherst in February 1985. For substantially the same
reasons set forth above regarding the North Tonawanda
unit, I find that Big R is the successor to P.W. at Am-
herst and that its failure to honor the Union's recogni-
tional demand was violative of Section 8(a)(5) and (1) of
the Act. Respondent, in its brief, asserts that it had a fur-
ther reason for not honoring the Union's demands at
Amherst; Respondent thus contends that it had a good-
faith doubt concerning the Union's majority at Amherst.
Initially, I note that Respondent had never made that as-
sertion in any response to the Union's demand for recog-
nition. Second, I note that Respondent is asking me to
infer that it had a good-faith doubt based on a further in-
ference it urges me to draw from evidence proferred by
the General Counsel as background and on a contention
it has made but which has been rejected, i.e.-that
Taylor and Sinski had no reasonable expectancy of recall
when laid off by P.W. I am disinclined to draw the
double inference sought by Respondent. To do so, I
would have to engage in pure speculation and perhaps
use it to fill the void in the record resulting from Re-
spondent's not having adduced any evidence that it had
entertained any good -faith doubt . In short , the evidence
as a whole fails to support this contention by Respond-
ent. See Louis Pappas' Restaurant, supra.
CONCLUSIONS OF LAW
1. Respondent Big R is an employer engaged in com-
merce 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(6) and (7) of the Act.
1310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. An appropriate unit for collective-bargaining pur-
poses within the meaning of Section 9(b) of the Act is:
All employees employed by Big R Distributors, Inc.
at its store in North Tonawanda, New York exclud-
ing managers, assistant managers, management train-
ees, administrative assistants , guards and supervisors
within the meaning of the Act.
4. An appropriate unit for collective-bargaining pur-
poses within the meaning of Section 9(b) of the Act is:
All employees employed by Big R Distributors, Inc.
at its store in Amherst, New York excluding man-
agers, assistant managers , management trainees, ad-
ministrative assistants, guards and supervisors within
the meaning of the Act.
5. At all times material, the Union has been the exclu-
sive collectivebargaining representative of the employ-
ees in each of the units described above in paragraphs 3
and 4.
6. Respondent is the legal successor for labor relations
purposes to P.W.'s operations at the North Tonawanda
store and at the Amherst store.
7. Since about 7 February 1985, Respondent has failed
and refused to recognize and bargain collectively with
the Union as the exclusive representative of the employ-
ees in each of the respective units described above and
Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(5) and
(1) of the Act.
8. Respondent has engaged in and is engaging in a fur-
ther unfair labor practice within the meaning of Section
8(a)(1) and (5) of the Act by having closed its North
Tonawanda store after having precluded the Union from
having the opportunity to bargain collectively respecting
the effects of the closing on unit employees there.
REMEDY
Having found that Big R has engaged in unfair labor
practices within the meaning of Section 8 (a)(1) and (5) of
the Act, I shall order the Respondent to cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
With respect to its unlawful failure to bargain with the
Union about the effects of its decision to close its North
Tonawanda store, the terminated employees have been
denied an opportunity to bargain through their collec-
tive-bargaining representative at a time when the Re-
spondent might still have been in need of their services
and a measure of balanced bargaining power existed.
Meaningful bargaining cannot be assured until some
measure of economic strength is restored to the Union.
A bargaining order alone , therefore, cannot serve as an
adequate remedy for the unfair labor practices commit-
ted. See Contris Packing Co., supra at 196.
Accordingly, I deem it necessary, in order to effectu-
ate the purposes of the Act, to require Big R to bargain
with the Union concerning the effects of the shutdown
on its employees and shall accompany the order with a
limited backpay requirement designed both to make
whole the employees for losses suffered as a result of the
violations and to recreate in some practicable manner a
situation in which the parties ' bargaining position is not
entirely devoid of economic consequences for Big R. I
shall do so in this case by requiring that Big R pay back-
pay to its employees in a manner similar to that required
in Transmarine Corp ., 170 NLRB 389 (1965). Thus, Big
R shall pay employees backpay at the rate of their
normal wages when last in Big R 's employ from 5 days
after the date of this decision and order until occurrence
of the earliest of the following conditions : (1) the date
Big R bargains to agreement with the Union on those
subjects pertaining to the effects of the shutdown on its
employees; (2) a bona fide impasse in bargaining ; (3) the
failure of the Union to request bargaining within 5 days
of the date of this decision , or to commence negotiations
within 5 days of Big R's notice of its desire to bargain
with the Union; (4) the subsequent failure of the Union
to bargain in good faith ; but in no event shall the sum
paid to any of these employees exceed the amount they
would have earned as wages from 1 July 1985, the date
on which Big R terminated its operation , to the time
they secured equivalent employment elsewhere, or the
date on which Big R shall have offered to bargain,
whichever occurs sooner; provided, however, that in no
event shall this sum be less than these employees would
have earned for a 2-week period at the rate of their
normal wages when last in Big R 's employ.
The General Counsel requests that a visitatorial clause
be made part of the order . The suggested clause appears
to be practical , useful, and even at times essential. I shall
include it.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed2
ORDER
The Respondent, Big R Distributors , Inc. d/b/a Shop-
pers Choice, Amherst and North Tonawanda, New
York, its officers, agents, successors , and assigns, shall
1. Cease and desist from
(a) Failing and refusing to recognize and to bargain
collectively with United Food & Commercial Workers
Union, Local 212, AFL-CIO-CLC (the Union), as the
exclusive collective-bargaining representative of Re-
spondent's employees in each of the units found appro-
priate.
(b) Failing and refusing to bargain collectively with
the Union to the effects on the unit of employees at the
North Tonawanda store of the closing of that store.
(c) 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 purposes of the Act.
2 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.
SHOPPERS CHOICE
(a) Notify the Union that it is recognized as the exclu-
sive bargaining agent of the respective employees de-
scribed as follows:
All employees employed by Big R Distributors,
Inc. at its store in North Tonawanda, New York ex-
cluding managers , assistant managers, management
trainees , administrative assistants, guards and super-
visors within the meaning of the Act.
All employees employed by Big R Distributors,
Inc. at its store in Amherst, New York excluding
managers , assistant managers, management trainees,
administrative assistants , guards and supervisors
within the meaning of the Act.
(b) On request, bargain collectively with the Union as
the exclusive representative of the employees in each of
tbose units concerning their rates of pay , hours of em-
ployment, the effects of the closing of the North Tona-
wanda store , or other terms and conditions of employ-
ment and, should agreement be reached , embody the
same on the Union's request, in a written and signed in-
strument.
(c) Pay the employees at North Tonawanda who were
laid off as a result of the closing of the store , their wages
as set forth in the remedy section of this decision.
(d) Post at its place of business located in Amherst,
New York, copies of the attached notice marked "Ap-
pendix."3 Copies of the notice, on forms provided by the
Regional Director for Region 3, after being signed by
the Respondent 's authorized representative , shall be
posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply. For the purpose of deter-
mining or securing compliance with this Order, the
Board , or any of its authorized representatives, may
obtain discovery from the Respondent , its officers,
agents, successors, or assigns, or any other person having
knowledge concerning any compliance matter, in the
manner provided by the Federal Rules of Civil Proce-
dure. Such discovery shall be conducted under the su-
pervision of the United States court of appeals enforcing
this Order and may be had upon any matter reasonably
related to compliance with this Order, as enforced by the
court.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
1311
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.
WE WILL NOT refuse to recognize and bargain with
Local 212, United Food and Commercial Workers,
AFL-CIO, as the exclusive representative of the em-
ployees in each of the following appropriate bargaining
units:
All employees employed by Big R Distributors,
Inc. at its store in North Tonawanda , New York ex-
cluding managers , assistant managers , management
trainees, administrative assistants , guards and super-
visors within the meaning of the Act.
All employees employed by Big R Distributors,
Inc. at its store in Amherst, New York excluding
managers , assistant managers , management trainees,
administrative assistants, guards and supervisors
within the meaning of the Act.
WE WILL notify the Union that we recognize it as the
exclusive collective-bargaining representative of the em-
ployees in each of the above described units.
WE WILL on request, bargain collectively with the
above Union with respect to the effects of closing our
North Tonawanda store on the unit employees there and
sign any agreement reached.
WE WILL on request, bargain collectively with the
Union as the exclusive representative with respect to
hours, rates of pay, and all terms and conditions of em-
ployment of the employees at our Amherst, New York
store and will sign any agreement reached thereon.
WE WILL pay the North Tonawanda employees laid
off in July 1985 their normal wages, with interest.
BIG R DISTRIBUTORS, INC. D/B/A SHOP-
PERS CHOICE
s 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-
al 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."