S.E. NICHOLS, INC. V. NATIONAL LABOR RELATIONS BOARD

   No. 88-1779

   In The Supreme Court Of The United States

   October Term, 1988

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Second Circuit

   Brief For The Respondent In Opposition

            TABLE OF CONTENTS
   Question Presented
   Opinions below
   Jurisdiction
   Statement
   Argument
   Conclusion

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. 1a-57a) is reported
at 862 F.2d 952.  The decision and order of the National Labor
Relations Board (Pet. App. 1c-75c), including the decision of the
administrative law judge (Pet. App. 1d-285d), are reported at 284
N.L.R.B. No. 55.

                             JURISDICTION

   The judgment of the court of appeals was entered on January 3,
1989.  The petition for a writ of certiorari was filed on April 3,
1989.  The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).

                          QUESTION PRESENTED

   Whether the court of appeals properly concluded that, in light of
petitioner's recidivist history and its extensive campaign of unfair
labor practices in response to an organizational drive at one of its
stores, the National Labor Relations Board did not abuse its
discretion to remedy unfair labor practices by ordering certain access
and notice remedies in addition to its traditional remedies.

                               STATEMENT

   1. Petitioner, S.E. Nichols, Inc., operates a chain of some 40
discount retail department stores in a number of states.  Five of
petitioner's stores in upstate New York (Herkimer, Marcy, New
Hartford, Gloversville, and Amsterdam) and three stores in Ohio
(Wooster, Ashtabula, and New Philadelphia) are supervised by District
Supervisor Henry Korcz.  Pet. App. 4a, 6a, 35c & n.13.  The Herkimer,
Marcy, and New Hartford stores are within 13 miles of each other (id.
at 44a).  Labor policy in all of petitioner's stores is determined and
directed by petitioner's president, Manfred Brecker, at corporate
headquarters in New York City (id. at 44a, 246d).  Petitioner has a
long history of using unlawful means to resist unionization of its
stores (id. at 4a, 29c and n.11).  /1/

   In August 1979, /2/ four employees of petitioner's Herimer store --
Dorothy Reinhardt, Doug Vincent, Denise Styles, and Kristin Burkle --
began an effort to secure union representation.  On August 31,
Reinhardt and Vincent contacted the Union, /3/ received blank
authorization cards, and started to collect signatures.  Within two
days, the four employees had obtained signed cards from about 27 of
the store's 70 employees;  in many cases, the cards were signed in or
near the store.  Pet. App. 5a-6a, 15d-21d.

   District supervisor Korcz knew of the organizing activity almost
immediately, and came to the Herkimer store two days after the
campaign started.  The next day he told Reinhardt that she was
discharged, handed her an already prepared final paycheck, and said
that, if she had any questions, she should call President Brecker or a
company vice-president.  /4/ That evening, Korcz discharged Vincent in
the same manner.  On September 4, the store manager received a
mailgram from the Union claiming majority representation and
requesting a card check.  Later that day, he summarily discharged
Burkle and Styles.  Pet. App. 6a-7a, 21d-24d.

   Immediately after receipt of the Union's request, Korcz initiated a
series of daily meetings with employees in which management
aggressively opposed unionization (Pet. App. 33d-34d).  In the course
of the meetings, Korcz stated that Reinhardt, Vincent, Styles, and
Burkle "had been fired for not doing their jobs and not cooperating
with management," that they "were passing out (union) cards," that he
"didn't want them harassing people in the store while they were
working," and that the harassment consisted of "(t)rying to get people
to sign union cards" (ibid.).  When asked if they would be reinstated,
Korcz answered "(Y)es, but once they're reinstated they don't last too
long," thus indicating that pretexts would be found for their later
discharge (id. at 7a, 99d-100d).  Korcz repeatedly advised employees
to report "harassment" or "trouble" or if anyone bothered them by
trying to get them to sign union cards, and told employees that
petitioner's attorney would help the employees with respect to union
harassment.  Korcz volunteered the information that employees could
retract their union authorization cards, and offered to tell them
where to send their retractions.  He advised employees to let other
people know that they had retracted their cards, and said that
petitioner's attorney could "receive the union cards." Id. at 86d-87d,
97d.

   At a September 4 meeting, Korcz announced that new work schedules
to which employees had objected would not be put into effect (Pet.
App. 75d).  At various meetings, he solicited employee suggestions and
complaints, and promised to rectify them.  Some employee complaints
were remedied immediately.  The employees were told, however, that if
the Union came in, they would have to start all over, and existing
benefits could be lost (id. at 93d-95d).

   On September 7, the Union filed an unfair labor practice charge,
alleging that petitioner had violated the National Labor Relations Act
(Act) by its discharge of the four union activists, by Korcz's conduct
in the employee meetings, and by a rule restricting the acceptance of
literature on company property.  A complaint issued, and hearings were
held in March 1980, /5/ in which employees June Klimacek, Fred
Pumilio, and Margaret Goldsmith testified under subpoena from the
National Labor Relations Board (Board) (Pet. App. 8a, 187d, 205d,
220d).  After they testified, all three were subjected to
unprecedented scrutiny and harassment by Korcz and their store manager
(id. at 8a, 187d-231d).  Klimacek and Pumilio were given written
warnings about their behavior.  Goldsmith, an employee with an
unblemished record, was denied a promised raise and was advised by
President Brecker to "ask the Union to give (her) a raise" (id. at 9a,
204d-205d, 213d-216d).

   On April 2, President Brecker paid an unusual visit to the Herkimer
store and conducted the first of a series of meetings to discourage
employees from supporting the Union (Pet. App. 9a, 16c-17c,
155d-183d).  At meetings in April, May, and June, with Korcz in
attendance, Brecker told employees that "there would be no way in hell
that (Reinhardt, Vincent, Styles, and Burkle) would ever come back and
work" in his store;  that "hell would have to freeze over before
(they) would get hired again";  and that he "would not reinstate
people that participated in Union activities" (id. at 10a, 162d-163d).
 Brecker added that "some of these cases will go to court for eight to
ten years" and that he would "keep appealing them until they get to
the highest court" (id. at 163d).  Referring to events at the store in
Marcy, Brecker said that, when petitioner was forced to reinstate
employees discharged for union activity, they did not last "because
people don't get along with them and I consider them troublemakers and
then they leave" (id. at 164d).  /6/ At a meeting in late April, Korcz
read a letter from the Union stating that petitioner was continuing to
use the same scare "tactics" at the Herkimer store that it had used to
defeat another union at its store in Marcy.  Korcz then said that the
Union's statement was correct.  Id. at 18c, 173d-174d.  /7/

   The Union filed additional unfair labor practice charges against
petitioner, and a second complaint was issued on May 8, alleging,
inter alia, unlawful discrimination against Klimacek, Pumilio, and
Goldsmith, the employees who had testified before the Board (Pet. App.
4d).  At a store-wide meeting on June 5, less than two weeks before
the scheduled election on the Union's representation petition, Brecker
announced the award of a $2,000 bonus to be distributed among
employees and supervisors.  The award was not issued pursuant to any
written policy statement or established criteria, and no such bonus
had ever been granted before at the Herkimer store (id. at 183d-184d).
 Brecker then read aloud from the Board's second complaint and, in an
atmosphere of "manipulated hilarity," asked Klimacek, Pumilio, and
Goldsmith to respond in the presence of their fellow employees to
allegations in the complaint.  Id. at 22c n.7, 159d-160d.

   The Union lost the representation election on June 18 by a vote of
47 to 9 (Pet. App. 5d).

   2. The Board adopted, with a few exceptions, the findings and
conclusions of the administrative law judge (ALJ) as to petitioner's
violations of the Act.  The Board found that petitioner, acting
primarily through Brecker and Korcz, violated Section 8(a)(1) of the
Act, 29 U.S.C. 158(a)(1), by threatening employees with loss of
employment, benefits, and other reprisals if they supported the Union;
 soliciting employee complaints and grievances, remedying some
grievances, and promising to remedy others;  promising employees wage
increases and other benefits to discourage support for the Union and
granting an unprecedented bonus to the same end;  soliciting employees
to withdraw their union authorization cards;  stating that it could
learn the identity of employees who signed union cards;  telling
employees that discriminatorily discharged employees would not be
reinstated or that, if reinstated, they would not remain employed;
maintaining and enforcing overly broad no-solicitation and
no-distribution rules;  and discriminatorily restricting distribution
and solicitation on behalf of the Union.  The Board further found that
petitioner violated Section 8(a)(1) by telling employees that union
activists had been discharged for engaging in protected activities;
expressing approval of its conduct at the Marcy store (conduct that
had been found to be unlawful) and threatening to engage in similar
conduct at Herkimer;  soliciting employees to inform petitioner of
protected activities;  and discouraging cooperation with the Board and
use of the Board's processes.  Pet. App. 2c-3c, 36c-40c, 232d-234d.

   In addition, the Board found that petitioner violated Section
8(a)(3) and (1) of the Act by discharging Reinhardt, Vincent, Styles,
and Burkle because of their union activities (Pet. App. 2c-3c,
25d-70d), and Section 8(a)(3), (4) and (1) by withholding a wage
increase from Goldsmith, giving Pumilio and Klimacek written warnings,
and subjecting all three to more onerous working conditions, increased
supervision, and embarrassment and ridicule because they testified in
a Board proceeding or supported the Union (Pet. App. 2c-3c,
187d-231d).

   As a remedy, the Board issued a broad order, directing petitioner
to cease and desist from the violations found and from interfering
with its employees' rights to organize "(i)n any other manner."
Affirmatively, the Board directed petitioner to remove the overly
broad no-solicitation and no-distribution rules from its employee
handbook;  to offer reinstatement to the discriminatorily discharged
employees;  to expunge from its records all references to the
discriminatory discharges and warnings;  and to make all of the
discriminatees whole with respect to backpay, wages, and other
benefits (Pet. App. 36c-43c).

   The Board, with then-Chairman Dotson dissenting, agreed with the
ALJ that additional notice and access remedies were required to
dissipate the coercive effects of petitioner's unfair labor practices.
 /8/ It noted petitioner's prior history of unlawful opposition to
union activity, affecting five other stores in the 16-year period
preceding the effort to organize the Herkimer store, and, in all but
one case, involving the participation of President Brecker (Pet. App.
28c-33c, 35c n.13).  The Board found that the ALJ was justified in
characterizing petitioner "as a 'recidivist' who has at the Herkimer
store continued to engage in an 'obdurate flouting of the Act,'" and
adopted her conclusion that "extraordinary notice and access remedies
are necessary to 'clear the atmosphere poisoned by (petitioner's)
unrelenting, egregious and pervasive trampling on its employees'
statutory rights'" (id. at 33c-34c).

   However, the Board disagreed with the ALJ that the extraordinary
access and notice remedies should be applied at all of petitioner's
stores.  Rather, the Board concluded that applying them to the eight
stores in the district supervised by Korcz would adequately effectuate
the policies of the Act.  The Board noted that President Brecker had
personally participated in earlier unfair labor practices at "two of
(the stores) located in District Supervisor Korcz's district, and
Korcz joined him at one of them" (Pet. App. 35c n.13).

   Accordingly, the Board ordered petitioner to post for 60 days at
the stores in Korcz's district an appropriate notice signed by
Brecker, Korcz, and the manager of the particular store, and to mail
to employees of those stores a copy of the notice together with an
explanatory letter signed by Brecker and the store manager;  to give
each supervisor at its Herkimer, Marcy, and New Hartford stores a copy
of the notice, with instructions, signed by the store manager, to
comply with the provisions of the notice;  and to convene, during
working time, all its employees at each store in Korcz's district and
the supervisors at the Herkimer store and have President Brecker read
the notice to them.  Pet. App. 44c-47c.

   In addition to the notice requirements, the Board's order requires
petitioner, on request by a union made within two years of the order,
to give the union reasonable access to company bulletin boards for a
period of one year.  During the same two-year period, the order
requires petitioner (1) to grant a union equal time if store employees
are convened for an address on union representation, and rebuttal
time, if requested;  (2) if there is a Board election, to allow the
participating union to make one 30-minute pre-election speech during
working hours;  and (3) on request of a union conducting an organizing
campaign, to furnish the union with a current and periodically updated
list of employees' names, addresses, and classifications.  Pet. App.
47c-49c.

   3. The court of appeals upheld the Board's unfair labor practice
findings and, with one modification, enforced its remedial order.  /9/

   The court rejected petitioner's challenge to expansion of the order
beyond the Herkimer store to the eight stores supervised by Korcz.
The court noted that in its own prior decisions upholding the Board's
discretion to expand its remedies beyond the actual locations where
unfair labor practices were committed, /10/ it had considered "whether
the employer has repeatedly shown anti-union animus on a broad scale"
and whether, as in this case, "a company's labor policies are
determined at a central location rather than at each individual
workplace" (Pet. App. 41a-42a).  The court took judicial notice, as
the Board had done, of the many cases finding that petitioner had
violated the Act in its opposition to organizing activity, and had
done so whenever such activity had occurred.  /11/ It concluded that
"(t)his history almost certainly indicates a general knowledge by the
company's employees that it is willing and likely to engage in
coercive activity in response to union campaigns in its stores" (id.
at 43a).  /12/

   The court found substantial record evidence of a "conscious
corporate-wide policy to coerce company employees in the exercise of
their right to join or form labor unions, at least in the area subject
to the jurisdiction of district supervisor Korcz." /13/ It held that
"on this record, * * * the Board had discretion to select remedies
coextensive with that (unlawful) company policy, * * * and to impose
district-wide access and notice requirements * * * in order to remedy
the chilling effect of the company-produced coercive atmosphere" (Pet.
App. 46a-47a).

   Turning to petitioner's objections to the access remedies, the
court observed "that an extensive campaign of unfair labor practices
can produce effects on employees that cannot be offset by * * *
conventional remedies," and that "(t)o offset the effects of such
unfair labor practices, * * * it has been found necessary in some
cases to grant a union access to company bulletin boards or to the
plant itself" (Pet. App. 48a).  /14/ The court held that on this
record the Board reasonably found such remedies necessary to
effectuate the purposes of the Act.  Rejecting petitioner's argument
that the Board had made no finding that it had restricted union
access, the court said that petitioner did "interfere directly" with
union access by "firing the union activists * * * who were in fact
acting as conduits of union information." Id. at 49a-50a.

   The court distinguished this Court's decision in NLRB v. Babcock &
Wilcox Co., 351 U.S. 105 (1956), relied on by petitioner for the
proposition that its property rights precluded access unless the Union
had no other reasonable means of reaching the employees.  The court
found Babcock & Wilcox "inapposite because it does not deal with the
remedial powers of the Board;  it only seeks to determine when an
employer's denial of access to his property can itself be deemed an
unfair labor practice" (Pet. App. 50a-51a).

   Finally, the court rejected petitioner's contention that the order
should not be enforced because of the time lapse between the ALJ's
decision and the Board's order, some of which the court attributed to
petitioner's "massive attack on the ALJ's decision." Although
"troubled by this delay," the court did not believe that it justified
a refusal to "insure the company's employees the right to participate
freely in union activities" and "to remedy the effect of the company's
past unfair labor practices by restoring, as much as possible, the
status quo that existed at the time the practices occurred" (Pet. App.
54a-56a).

                               ARGUMENT

   1. Petitioner does not challenge the Board's findings, upheld by
the court of appeals, that, in opposing the Union organizational
campaign, it engaged in pervasive and egregious violations of the Act,
with its president and the supervisor of the stores affected by the
order as the most culpable participants.  /15/ Nor does petitioner
argue that the Board lacks the power in appropriate cases to devise
extraordinary remedial measures.  /16/ Indeed, petitioner acknowledges
(Pet. 8-10, 14) that notice and posting requirements beyond the store
where the unfair labor practices occurred may be appropriate where
those practices may cause a chilling effect on labor relations at
other locations, /17/ and that access requirements may be appropriate
where the unfair labor practices create communication problems for the
union.  /18/ Petitioner simply contends (Pet. 6-7) that the notice and
access remedies upheld by the court of appeals were unwarranted in
this case.  That fact-specific claim raises no issue appropriate for
review by this Court.

   2. In any event, there is no merit to petitioner's contentions.

   a. Petitioner contends (Pet. 9) that the Board's district-wide
posting and mailing remedy is inappropriate because the violations
were limited to the Herkimer store, the stores in the division are
geographically remote and unrelated, previous unfair labor practices
were unrelated to and not concurrent with the Herkimer violations, and
there were no findings that "any of the alleged violations became
known outside of the stores in which they purportedly occurred or that
they created a 'chilling effect' at other locations." However, the
court of appeals found that petitioner's 15-year history of unlawful
acts in response to union activity "almost certainly indicates a
general knowledge by the company's employees that it is willing and
likely to engage in coercive activity in response to union campaigns
in its stores" (Pet. App. 43a).  The court further found that there
was substantial record evidence of a "conscious corporate-wide policy
to coerce company employees * * *, at least in the area subject to
(Korcz's) jurisdiction," and that in that district there was a need to
counter "the chilling effect of the company-produced coercive
atmosphere" (id. at 46a-47a).  Moreover, contrary to petitioner's
assertion (Pet. 9), the Board, upheld by the court of appeals, found
that there was employee interchange between stores in the district
(Pet. App. 44a).

   In these circumstances, the facts justifying the division-wide
posting and mailing remedies ordered in this case fit comfortably
within the scope of cases where such remedies have previously been
approved, /19/ and are distinguishable from cases in which such
remedies have been found inappropriate.  /20/

   b. Relying on decisions of the Courts of Appeals for the Fifth and
District of Columbia Circuits (Pet. 13), petitioner suggests that a
requirement that the notice be read aloud is appropriate only to
"insure the notice's full dissemination" in the face of illiteracy.
Subsequent cases in both circuits make clear that reading requirements
fall within the range of the Board's remedial discretion when
employers conduct antiunion campaigns in a clearly unlawful manner,
and that the illiteracy of the workers receiving the notice is by no
means the only justification for such remedial provisions.  See Conair
Corp. v. NLRB, 721 F.2d 1355, 1385 (D.C. Cir. 1983), cert. denied, 467
U.S. 1241 (1984);  J. P. Stevens & Co. v. NLRB, 417 F.2d 533, 539-540
(5th Cir. 1969).  See also, J. P. Stevens & Co. v. NLRB, 380 F.2d 292,
304-305 (2d Cir. 1967), cert. denied, 389 U.S. 1005 (1968).

   c. Similarly, petitioner's contention (Pet. 13-14) that the Board's
access remedies are unwarranted here because the unions have easy
access to the employees, merely quarrels with the Board's findings,
upheld by the court of appeals, that petitioner "did interfere
directly with * * * access by firing the union activists at the
Herkimer store, who were in fact acting as conduits of union
information" (Pet. App. 49a-50a).  See J. P. Stevens & Co., 417 F.2d
at 540-541 ("But how to communicate when history proves that
identifiable activity imperils the job of the actor?").

   Petitioner's contention (Pet. 15-16) that the access remedies
conflict with this Court's decision in NLRB v. Babcock & Wilcox, 351
U.S. 105, 114 (1956), is without merit.  As the court of appeals noted
(Pet. App. 50a), in Babcock & Wilcox this Court was not concerned with
the Board's remedial authority, but with the circumstances in which a
denial of access to company property can itself be deemed to be a
violation of the Act.  In this case, petitioner engaged in pervasive
violations of the Act, some of which "did interfere directly" with the
union's access to petitioner's employees (id. at 48a-50a).  The cases
cited by petitioner, e.g., United Steelworkers v. NLRB, 646 F.2d 616,
637-638 (D.C. Cir. 1981) (Pet. 9-10);  J. P. Stevens & Co. v. NLRB,
417 F.2d at 540 (Pet. 8);  Decatursville Sportswear Co. v. NLRB, 406
F.2d 886, 889 (6th Cir. 1969) (Pet. 8, 9), confirm the Board's
discretion to remedy such violations by providing access remedies
similar to those granted here, without a finding that the Union will
be unable to reach the employees through other available means of
communication.

   d. Finally, there is no merit to petitioner's contention (Pet.
16-19) that the Board's order is inappropriate because of the six and
one-half year passage of time between the ALJ's decision and the
Board's order.  This Court has made clear that the burden of delay,
either by the employer or the Board, may not be shifted to innocent
employees who are the beneficiaries of the Board's remedial order.
NLRB v. J. H. Rutter-Rex Mfg., 396 U.S. 258, 265-266 (1969).  /21/

   Petitioner further asserts (Pet. 18) that the absence of unfair
labor practice charges filed against it in over eight years is
evidence of its "harmonious labor relations," making the need for a
remedial order moot at this time.  However, as the ALJ stated, (see
note 8, supra), petitioner's unlawful conduct appears to have been
coextensive with union organizational attempts at its stores.  The
court of appeals agreed, finding that petitioner has "'uniformly
committed unlawful acts in response to attempts to organize (its)
stores'" (Pet. App. 43a).  In these circumstances, the court of
appeals appropriately found that the passage of time did not diminish
the need for the remedial relief ordered by the Board, as modified by
the court of appeals (see note 9, supra).  /22/

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   WILLIAM C. BRYSON

      Acting Solicitor General

   JOSEPH E. DESIO

      Acting General Counsel

   D. RANDALL FRYE

      Associate General Counsel

   ROBERT E. ALLEN

      Associate General Counsel

   NORTON J. COME

      Deputy Associate General Counsel

   LINDA SHER

      Assistant General Counsel

   CARMEL P. EBB

      Attorney

   MAY 1989

   /1/ See S. E. Nichols Marcy Corp., 229 N.L.R.B. 75 (1977), enforced
by consent judgment, No. 77-4154 (2d Cir. 1977);  S. E. Nichols Co.,
156 N.L.R.B. 1201 (1966), enforced in relevant part, 380 F.2d 438 (2d
Cir. 1967);  S.E. Nichols-Dover, Inc., 159 N.L.R.B. 1071 (1966),
enforced, 374 F.2d 115 (3d Cir. 1967);  165 N.L.R.B. 924 (1967);  167
N.L.R.B. 832 (1967), enforced, 414 F.2d 561 (3d Cir. 1969), cert.
denied, 397 U.S. 916 (1970);  179 N.L.R.B. 249 (1969), enforced, 73
L.R.R.M. 2816 (3d Cir.), cert. denied, 400 U.S. 831 (1970);  S. E.
Nichols of Ohio, Inc., 195 N.L.R.B. 939, enforced, 472 F.2d 1228 (6th
Cir. 1972);  NLRB v. S.E. Nichols of Ohio, Inc., 100 L.R.R.M. 2840
(D.C. Ohio 1978), aff'd, 592 F.2d 326 (6th Cir. 1979) (civil
contempt);  258 N.L.R.B. 1 (1981), enforced, 704 F.2d 921 (6th Cir.),
cert. denied, 464 U.S. 914 (1983);  S. E. Nichols Shillington Corp.,
195 N.L.R.B. 189 (1972), enforced, 475 F.2d 1395 (3d Cir.), cert.
denied, 414 U.S. 860 (1973).  Unreported cases include:  NLRB v. S.E.
Nichols Shillington Corp., Civ. No. 75-1751 (3d Cir.) (contempt);
DeProspero v. S.E. Nichols Marcy Corp., No. 76 CV 5 (N.D.N.Y. 1976)
(Section 10(j), 29 U.S.C. 160(j), injunction granted);  Eisenberg v.
S.E. Nichols, Inc., Civ. No. 78-2613 (D.N.J. Jan. 15, 1979) (Section
10(j) injunction granted).  Pet. App. 29c n.11.

   /2/ References are to 1979, until otherwise indicated.

   /3/ Retail Store Employees' Union Local 345, United Food and
Commercial Workers International Union, AFL-CIO.

   /4/ Shortly thereafter, an employee asked a supervisor if Reinhardt
had been discharged for union activity.  The supervisor replied that
he "couldn't say," but added that "there would be more to go, it
wasn't the end" (Pet. App. 73d-74d).

   /5/ Further references are to 1980, unless otherwise indicated.

   /6/ Brecker told employees that the Board was "working for the
unions," and that, if the Union won, the Board would not and could not
protect the employees.  He said that petitioner might lose some cases
before the Board, but ultimately it won its "big" cases in the courts,
a message that was repeated by both Brecker and Korcz in subsequent
meetings (Pet. App. 158d, 165d-166d).

   /7/ The Board had found that petitioner violated the Act at its
Marcy store by discharging ten employees who engaged in union
activity;  coercively interrogating employees;  soliciting employees
to engage in surveillance of other employees, circulate an anti-union
petition, and retract authorization cards;  promising rewards and
improved benefits and working conditions;  threatening to discharge
employees and discover the identity of employees who signed
authorization cards;  issuing written warnings for minor infractions;
and imposing economic reprisals.  S. E. Nichols Marcy Corp., 229
N.L.R.B. 75 (1977), enforced by consent judgment, No. 77-4154 (2d Cir.
1977).  Korcz, who was then manager of the Marcy store, was an active
participant in the violations.  229 N.L.R.B. at 77-89.

   /8/ The ALJ had noted that "all the union instigators were
discharged immediately upon the initiation of the organizational
campaign," that petitioner had been found guilty of similar misconduct
in the past, had been found in contempt of the reinstatement orders as
to two employees discharged from its New Philadelphia store for union
activity, and had previously engaged in almost "every type of unfair
labor practice found" in the Herkimer case (Pet. App. 245d-246d
(emphasis in original)).  The ALJ rejected petitioner's contention
that it should not be subjected to extraordinary remedies because it
"has been involved in violations at 'only a half-dozen locations over
a period of fourteen years'" (id. at 248d (emphasis in original)).
She observed that "(s)o far as appears, these are the only locations
at which union campaigns have initiated.  * * * If the past holds any
lessons, it might teach employees and unions that any attempt by
Nichols' employees to exercise their freedom to make a choice contrary
to (petitioner's) desires will be both hazardous and doomed to
failure, at least without long and tortuous litigation, which, as the
present case shows, may itself pose danger for the employees" (id. at
248d-249d).

   /9/ The modification concerned the requirement that Brecker read
the notice aloud, a requirement that "was designed to 'undo the
effect' of numerous and egregious unfair labor practices by assuring
employees that the company will respect the rights of workers to form
and join unions," and to "insure() that the full counteracting force
of the remedial order will be felt by the employees" (Pet. App. 51a).
The court noted, however, that it had previously held, in NLRB v. J.
P. Stevens & Co., 380 F.2d 292, 304 (2d Cir.), cert. denied, 389 U.S.
1005 (1967), that there is "an element * * * of some humiliation in
having Company officials personally and publicly participate." The
court, accordingly, limited the reading requirement to the Herkimer
store, where the most recent violations had occurred, and required the
Board to give petitioner the option of having the notice read by a
Board agent.  But it added that it was not holding that the Board's
reading requirement "'would never be appropriate.' * * * We simply
hold that it is not called for in the circumstances here." Pet. App.
51a-53a.

   /10/ NLRB v. Jack La Lanne Management Corp., 539 F.2d 292, 295 (2d
Cir. 1976);  United Aircraft Corp. v. NLRB, 440 F.2d 85, 100 (2d Cir.
1971);  J. P. Stevens & Co., 380 F.2d at 304.

   /11/ The court observed that in S. E. Nichols of Ohio, Inc., 258
N.L.R.B. 1 (1981), enforced, 704 F.2d 921 (6th Cir.), cert. denied,
464 U.S. 914 (1983) (involving petitioner's New Philadelphia store),
the Board had noted petitioner's "clear 'disregard for the rights of
its employees and its contempt for' the Act, the Board and the Sixth
Circuit", and had stated that petitioner's "history of committing
unfair labor practices 'clearly demonstrates' that over a 15-year
period the company had 'uniformly committed unlawful acts in response
to attempts to organize (its) stores'" (Pet. App. 43a).

   /12/ The court drew support for that conclusion from the fact that
the eight stores affected by the Board's order are all in New York and
Ohio;  that the Herkimer, Marcy, and New Hartford stores are within 13
miles of one another, and that both bargaining unit and management
employees had moved between stores in the district (Pet. App. 44a).

   /13/ The court found it "very important" that the "people
responsible for managing the stores at the district-wide level were
the individuals most culpable for the findings of violations at
Herkimer" (Pet. App. 45a).  Thus, the court said, Korcz "participated
directly, personally and repeatedly in the unfair labor practices at
the Herkimer store" and told the Herkimer employees that, in opposing
unionization, petitioner would repeat its conduct at the Marcy store,
"even though Korcz knew the conduct was unlawful" (ibid.).  For his
part, Brecker, who had previously participated in unfair labor
practices at two stores located in the district, "repeatedly and
unrelentingly attacked the Board's neutrality and openly disparaged
those employees who had testified on behalf of the Board.  He also
used coercive tactics such as stating, in effect, that reinstated
union adherents do not last very long in the company's employ" (id. at
46a).

   /14/ Citing United Steelworkers v. NLRB (Florida Steel Corp.), 646
F.2d 616, 634-635 (D.C. Cir. 1981);  NLRB v. J. P. Stevens & Co., 563
F.2d 8, 24-25 (2d Cir. 1977), cert. denied, 434 U.S. 1064 (1978).

   /15/ While petitioner does not directly challenge the Board's
unfair labor practice determinations, it asserts (Pet. 7) that the
district court's denial of interim injunctive relief under Section
10(j) of the Act, 29 U.S.C. 160(j) -- on the ground that there was not
reasonable cause to believe that the unfair labor practices charged in
the second complaint had occurred (Pet. App. 18a-19a, 4d-5d) --
undercuts the propriety of the Board's multi-site remedial order.  As
the court of appeals properly noted (id. at 12a, 17a-20a), findings
made on an application for a preliminary injunction under Section
10(j) are not determinative of the merits in a subsequent unfair labor
practice proceeding.

   /16/ Section 10(c) of the Act, 29 U.S.C. 160(c), empowers the
Board, upon finding that an unfair labor practice has been committed,
to enter an order requiring the respondent not only "to cease and
desist from such unfair labor practice," but "to take such affirmative
action including reinstatement of employees with or without back pay,
as will effectuate the policies of this (Act)." "Within this limit the
Board has wide discretion in ordering affirmative action;  its power
is not limited to the illustrative example of one type of permissible
affirmative order, namely, reinstatement with or without back pay."
Virginia Electric & Power Co. v. NLRB, 319 U.S. 533, 539 (1943).
Accord, Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 189 (1941).
Moreover, "(i)n fashioning its remedies * * * the Board draws on a
fund of knowledge and expertise all its own, and its choice of remedy
must therefore be given special respect by reviewing courts." NLRB v.
Gissel Packing Co., 395 U.S. 575, 612 n.32 (1969).

   /17/ See, e.g., J. P. Stevens & Co. v. NLRB, 417 F.2d 533, 540 (5th
Cir. 1969);  J. P. Stevens & Co. v. NLRB, 380 F.2d 292, 304 (2d Cir.
1967).

   /18/ See, e.g., J. P. Stevens & Co., 417 F.2d at 540-541.

   /19/ See, e.g., NLRB v. Great Atlantic & Pacific Tea Co., 408 F.2d
374, 376 (5th Cir. 1969) (Pet. 8) (assumption that employees at other
stores knew of company's interference at one store is "particularly
reasonable" in that they shared a common supervisor);  NLRB v.
Delchamps, Inc., 653 F.2d 225, 228-229 (5th Cir.), reh'g denied, 660
F.2d 499 (5th Cir. 1981) (Pet. 8) (although unfair labor practices
implicated only local management at three stores, mingling of
employees at lunch and dinner meetings justified posting at 17 area
stores).  Petitioner's contention (Pet. 11) that the Board and the
court of appeals inappropriately relied on cases involving J. P.
Stevens in ordering multi-site remedial relief only quarrels with the
finding that here, as in those cases, there was reason to anticipate
that the employer would continue to pursue the same policies and that
employees in other facilities would know of, and be chilled by, the
unfair labor practices that had occurred.  See notes 9, 13, supra.
Moreover, the Board did recognize a distinction between the J. P.
Stevens cases and this case by restricting its remedy to eight of
petitioner's 43 stores.  These eight stores fell within a defined
geographical area and under the jurisdiction of a single and
particularly culpable supervisor.

   /20/ In United Steelworkers v. NLRB, 646 F.2d 616 (D.C. Cir. 1981)
(which petitioner cites as Florida Steel Corp. v. NLRB) (Pet. 9-10),
the court of appeals remanded to the Board for further consideration
of the necessity for corporate-wide union access as a remedy for "a
relatively minor violation" involving a single plant (646 F.2d at 619,
624).  It did so because the Board had made no finding that it was
"reasonably foreseeable" that employees at other plants had "suffered
coercive effects from the employer's unlawful conduct and that an
access remedy is necessary to cure those effects," and because the
court itself "simply (could) not assume from the evidence in this
record that the conduct of Florida Steel has had a corporatewide
chilling effect upon employees" (id. at 641).

   /21/ As the court of appeals noted, some of the delay was
attributable to petitioner (Pet. App. 54a).  Moreover, in light of
petitioner's statements to employees that it could delay Board
proceedings to their disadvantage, p. 5, supra, it is not clear that
the delay worked to the disadvantage of petitioner.  Petitioner's
reliance (Pet. 17) on Second Circuit cases involving bargaining orders
is inapposite.  As the court of appeals observed (Pet. App. 56a), the
remedy here does not require imposing representation on employees who
may no longer want it.

   /22/ The court of appeals' decision is consistent with NLRB v.
Raytheon Co., 398 U.S. 25, 27 (1970) (Pet. 18).  There the Court
rejected a claim of mootness but recognized that there might be
"situations where an enforcement proceeding will become moot because a
party can establish that 'there will be no reasonable expectation that
the wrong will be repeated.'" The court of appeals here properly found
that, in view of petitioner's past history of opposing union
organizational efforts whenever they occurred, there was no reasonable
expectation that the wrong would not be repeated.