Niagara Frontier Services, Inc.

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)