Shoppers Choice

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."