Heck's Inc.Download PDFNational Labor Relations Board - Board DecisionsSep 24, 1968172 N.L.R.B. 2231 (N.L.R.B. 1968) Copy Citation HECK'S INC. Heck 's Inc. and Amaigmated Meat Cutters and Butcher Workmen of North America , Food Store Employees Union , Local No. 347, AFL-CIO. Cases 6-CA-3989 and 6-RM-326 September 24, 1968 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA On May 7, 1968, Trial Examiner Frederick U. Reel issued his Decision in the above -entitled proceeding , finding that the Respondent had en- gaged in and was engaging in certain unfair labor practices and recommending that it cease and de- sist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner 's Deci- sion . The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices . Thereafter, the Respondent filed exceptions to the Trial Examiner ' s Decision, and the General Counsel and the Charging Party filed cross-exceptions and supporting briefs Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with these cases to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made 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 and briefs, and the entire record in the case, and hereby adopts the findings ,' conclusions , and recommenda- tions " of the Trial Examiner, as modified below. ' As found by the Trial Examiner , an election was conducted on July 13, 1967, in the following stipulated unit, which we find to he appropriate All employees of the Respondent 's Clarksburg, West Virginia , store, excluding supervisors , guards , and professional employees The Union lost the election by a vote of 19 to 16 , and thereafter filed timely objections to conduct affecting the election We sustain the Union 's Objec- tions 1, 2, 3, 5, and 6 , insofar as they related to the Respondent 's unlawful conduct committed after May 29 , 1967, the date of the filing of the petition in Case 6-RM-326 Accordingly , as recommended by the Trial Examiner, we shall set aside the election 1 The Charging Party in its exceptions urges the appropriateness of cer- tain remedies in addition to those recommended in the Trial Examiner's Decision We deem it inappropriate in this proceeding to grant this request to depart from our existing policies with respect to remedial orders and, therefore, find no merit in these exceptions 1 The General Counsel and the Charging Party have excepted to the Trial Examiner 's failure to find other alleged violations of Section 8(a)( I) We deem it unnecessary to pass upon these allegations as such conduct would, in any event , be cumulative, and would not enlarge the scope of our Order ° In Heck 's Inc, 171 NLRB 777, issued subsequent to the Tnal Ex- aminer's Decision in this case, the Board stated It is clear that the Respondent has the same labor relations policy af- fecting all employees at all of its stores , ( footnote omitted] and this 2231 1. The Trial Examiner found, and we agree, that the Respondent engaged in numerous violations of Section 8(a)(1) by conduct which included threats, interrogation , coercive interviews , and illegal polls t Such conduct, which took place during May, June, and July, 1967, prior to the election held on July 13, was directed at 33 of the 38 employees in the unit. 2. The Trial Examiner found that the Union represented a majority of the employees in the ap- propriate unit, but the Trial Examiner further found that the General Counsel failed to establish that the Respondent did not have a good -faith doubt as to the Union 's majority when it refused to bargain, and, accordingly , he did not sustain the Section 8(a)(5) allegation of the complaint . We find merit in the exceptions of the General Counsel and the Charging Party to this finding for the reasons set forth below. As already noted , the Respondent engaged in ex- tensive violations of the Act which directly involved nearly every employee in the unit. We note further that the Board has recently found that this Respond- ent engaged in a pattern of similar unfair labor practices at its other stores in West Virginia and Kentucky , and that the Respondent has a labor pol- icy in all its stores that is opposed to the policies of the Act.' Earlier Board decisions involving the Respondent 's operations show that President Had- dad and Vice President Darnall , who together con- trol the labor policy at all the Respondent's stores, have both actively participated at a number of stores in conduct found to be unlawful .' Both have repeated their unlawful conduct in the present cases. Such flagrant repetition of conduct previ- ously found unlawful shows a complete disregard by the Respondent of its obligations under the Act. policy is based , in part , on opposition to the freedom of choice by its employees in regard to collective bargaining It is also apparent that the proximity of the stores , and the active participation of top com- pany officials in carrying out this illegal labor policy, all have the effect of emphasizing individual incidents of unlawful conduct The repeti- tion of conduct which had earlier been found unlawful at this same store, and to many of the same employees , further indicates a disre- gard for the policies of the Act, and the impact of such repeated con- duct therefore is much greater than in the initial incident Upon review of all the relevant factors herein, we conclude that the Employer's unlawful conduct in this case is amplified by , and is part of, its companywide antiunion policy, (footnote omitted] and its impact must be evaluated in the context of its prior flagrant unlawful prac- tices Such conduct clearly reflects a rejection of the collective-bar- gaining principle Heck 's, Inc , Ibid, Heck 's Discount Store, 150 NLRB 1565, enfd 369 F 2d 370 (C A 6), Heck's Inc , 156 NLRB 760, enfd in part 386 F 2d 317 (CA 4), Heck 's, Inc , 159 NLRB 1151, enfd 387 F 2d 65 (CA 4), Heck 's, Inc , 159 NLRB 1331, denied adjudication in civil contempt 388 F 2d 668 ( C A 4), Heck 's, Inc, 166 NLRB 186 and 166 NLRB 674, enfd in part 398 F 2d 337 ( C A 4), Heck 's, inc , 170 NLRB 178 Sec also Heck's, Inc , 158 NLRB 121, enfd 387 F 2d 65 (C A 4 ) 172 NLRB No. 255 2232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In normal circumstances, an election by secret ballot, if free from improper or unlawful inter- ference, is a more satisfactory means of determin- ing employees' wishes than a showing of authoriza- tion cards Accordingly, an employer who withholds recognition on the basis of a good-faith doubt of a union 's majority does not violate Section 8(a)(5) of the Act, but may withhold recognition until the results of an election resolve his doubt.6 In order to determine whether an employer's in- sistence upon a Board election is based upon such a good-faith doubt, we consider all the relevant cir- cumstances, including any unlawful conduct of the Employer, the sequence of events, and the time lapse between the refusal and the unlawful conduct In the instant cases, the Respondent's refusal to grant recognition, followed by its extensive viola- tions of the Act and its interference with the em- ployees' free choice in the Board-conducted elec- tion, clearly evidence its unlawful motive and justi- fy an inference of bad faith.7 Consequently, we find, contrary to the Trial Examiner, that the General Counsel has established that the Respond- ent's refusal to recognize the Union was not based on a good-faith doubt of the Union's majority status. We find further that its refusal was for the purpose of utilizing the preelection period to un- dermine the Union's majority, and that the Respond- ent thereby made it impossible to hold a free and fair election. Accordingly, we find that the Respond- ent refused to bargain with the Union in violation of Section 8(a)(5) and (I) of the Act. In any event the Respondent's extensive Section 8(a)( I) violations, on which it embarked about the time the Union attained its majority status and which made a free and fair election impossible, jus- tify an order requiring the Respondent to bargain with the Union upon request as an appropriate remedy for the Respondent's 8(a)( I) violations " ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended , the National Labor Relations Board hereby orders that the Respond- ent, Heck's Inc., Clarksburg, West Virginia, its of- ficers, agents, successors , and assigns , shall: 1. Cease and desist from: (a) Unlawfully interrogating employees concern- ing their union memberships , sympathies , or activi- ties. "Aaron Brothers Company of California, 158 NLRB 1077, 1078, H& W Construc non Company, Inc, 161 N LRB 852, 857 ' Hammond & Irving , Incorporated , 154 NLRB 1071, 1073 "Bishop and Malco, Inc , dlbla Walkers, 159 NLRB 1159, Bryant Chucking Grinder Company, 160 NLRB 1526, 1530 , enfd 389 F 2d 565 (C A 2), Better Val-U Store of Mansfield, Inc , 161 NLRB 762, Fabricators, Incorporated, 168 NLRB 140 (b) 'Threatening employees that choice of a union as their collective -bargaining representative would lead to the closing of the store. (c) Illegally polling employees in a nonsecret ballot election to ascertain which employees sup- port the Union. (d) Interviewing employees under coercive cir- cumstances concerning matters relating to unfair labor practice charges and objections to an elec- tion. (e) Refusing to bargain with Amalgamated Meat Cutters and Butcher Workmen of North America, Food Store Employees Union , Local No. 347, AFL-CIO , as the exclusive representative of its em- ployees in the following appropriate unit: All employees of the Respondent 's Clarksburg, West Virginia, store , excluding supervisors, guards, and professional employees. (f) In any other manner interfering with, restraining , or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request , bargain collectively with the above-named labor organization as the exclusive representative of all the Respondent 's employees in the unit found to be appropriate and, if an agree- ment is reached , embody such understanding in a signed agreement. (b) Post at each of its retail stores copies of the attached notice marked " Appendix ."9 Copies of said notice , on forms provided by the Regional Director for Region 6 , after being duly signed by the Respondent 's representative shall be posted by it immediately upon receipt thereof, and be main- tained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered , defaced, or covered by any other material. (c) Notify the Regional Director for Region 6, in writing , within 10 days from the date of this Order, what steps have been taken to comply herewith. IT IS FURTHER ORDERED that the election held on July 13, 1967, in Case 6-RM-326 , be, and it hereby is , set aside , and all proceedings in that case be, and they hereby are , vacated. " In the event that this Order is enforced by a decree of a United States Court of Appeals , there shall be substituted for the words "a Decision and Order" the words "a Decree of the United States Court of Appeals Enforc- ing an Order " HECK'S INC. 2233 APPENDIX NOTICE TO ALL EMPLOYEES Office, 1536 Federal Building , 1000 Liberty Avenue, Pittsburgh, Pennsylvania 15222, Telephone 644-2977 Pursuant to the Decision and Order of the Na- tional Labor Relations Board and in order to effec- tuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: After a trial in which both sides had the opportuni- ty to present their evidence, the National Labor Relations Board has found that we violated the law and has ordered us to post this notice and to keep our word about what we say in this notice. All our employees have the right to self-or- ganization to form, join, or assist labor unions, and to bargain collectively through representa- tives of their own choosing. WE WILL NOT threaten to close any store because our employees select a union to represent them, or question our employees concerning their union sympathies, or activi- ties, or membership, or illegally poll employees in a nonsecret ballot, or interview employees under coercive circumstances. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed them by Section 7 of the Act. WE WILL recognize Amalgamated Meat Cut- ters and Butcher Workmen of North America, Food Store Employees Union, Local No. 347, AFL-CIO, as the bargaining representative of the employees in our Clarksburg, West Vir- ginia, store. At the request of that Union we will bargain with it in good faith with respect to the terms and conditions of employment of the employees in that store, and we will embody in a signed contract any agreement reached. All of our employees are free to become, or refrain from becoming, members of the above- named Union, or any other labor organization. HECK'S, INC. (Employer) Dated By (Representative ) (Title) This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE FREDERICK U REEL, Trial Examiner: These cases, consolidated by order of the Regional Director' and heard at Clarksburg, West Virginia, on February 27 and March 5, 6, and 14, 1968,1 present questions as to whether Heck's, Inc., herein called the Com- pany, engaged in acts of interference, restraint, and coercion in violation of Section 8(a)(1) of the Na- tional Labor Relations Act, as amended, whether its refusal to bargain with the Charging Party (herein called the Union) violated Section 8(a)(5) of the Act, and whether a Board-conducted elec- tion, which the Union lost by a vote of 19 to 16, should be set aside because of allegedly improper conduct affecting the result of the election. Upon the entire record,' including my observation of the witnesses and after due consideration of the briefs timely filed by each of the parties, I make the fol- lowing: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY, AND THE LABOR ORGANIZATION INVOLVED The Company, a West Virginia corporation, operates a retail store in Clarksburg as well as stores in other cities in West Virginia and Ken- tucky. Its annual gross sales exceed $500,000, and it received goods and products valued in excess of $500,000 directly from outside the State of West Virginia for use at its West Virginia stores. These facts establish, and the Company admits, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The Union is a labor organization within the meaning of Section 2(5) of the Act. 11. THE UNFAIR LABOR PRACTICES A. Interference, Restraint, and Coercion 1. The evidence in support of the allegations The Union commenced an organizing drive among the Company's Clarksburg employees in ' The charge was filed July 18, 1967, and the complaint issued December 26 The petition in the RM case was filed May 29, 1967, and the election was held July 13 Objections were filed July 19, 1967, and the re- port thereon issued December 28, the same day on which the two proceedings were consolidated s All other dates herein refer to the year 1967 unless otherwise noted ' 1 take official notice of other proceedings before the Board involving this Respondent , including the letter from Regional Director Getrcu dated March 29, 1968, in Case 9-CA-4472 The "Motion to take judicial notice" which accompanied Respondent 's brief is hereby granted 354-126 O-LT - 73 - pt 2 - 69 2234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD May 1967, culminating in an election on July 13, which the Union lost, 19 to 16. During this period the Company openly and vigorously opposed the Union's efforts. The question is whether, and to what extent, the Company overstepped legal limita- tions during this period and its immediate after- math. Several employees (Robin Webb, Mary Johnson, and Beverly Davis) testified that during this period Frances Jones, head cashier and concededly a su- pervisor, frequently asked each of them whether they had attended union meetings and where the meetings were held. Each of them also testified that Jones had stated to her that if the Union became the bargaining representative, Company President Fred Haddad would close the store. Several other employees (Marsha Mason, Sharon Kimble, and Pamela Jeffers) testified to separate occasions on which Bill Pulice, a department head and admitted supervisor, stated that Haddad would close the store if the Union came in. Pulice also figured in an incident of alleged un- lawful surveillance of union activity. A mid-June union meeting was scheduled for shortly after 10 p.m., the store's closing time, at the Truck-O-Tel, a restaurant on the main highway leading from the store to downtown Clarksburg. Several employees, congregating outside before the meeting, saw Pu- lice drive past three times (i.e., first toward town, then back toward the store, and then toward town again ), and noted that he was driving at a slow rate of speed and that he turned his head toward the restaurant so as to see who was there. The meeting was transferred to a nearby bowling alley on the same highway because, as employee Terry Smith testified, "So many members showed up and we had to go-and also have some privacy." Smith further testified that a day or two later Warehouse Manager Surock, a supervisor, asked him whether he had bowled a good game the other night. Smith rejoined that Surock knew Smith had not gone to bowl but to a union meeting. Surock then asked, according to Smith, "Did you all accomplish anything?" and when Smith did not reply, Surock added: "Well, you are going to be sorry of it," and walked away. According to the testimony of both Marsha Mason and Pamela Jeffers, Company President Haddad approached them one day in June while they were working together, and initiated a discus- sion with them as to why Montgomery Ward had recently closed its Clarksburg store. After the two employees expressed their opinion, Haddad told them (so they testified) that they were wrong, that the store had closed because of union activity, and that he would close this store if the Union came in. He then told the two employees that he was going to transfer them to another store because they had been "bad girls." Employee Cynthia Marsh testified that shortly before the election one of the supervisors, Ella Morris, asked her how she was going to vote in the election, and she replied that she did not know. Marsh also testified to a conversation with Com- pany Vice President Ray Darnall the night before the election in which Darnall told her that the Clarksburg store was making "just enough money . . . to keep going, keep their heads above water. ..." Marsh further attributed to Darnall in this con- versation the statement that the store "might have to close down" if the Union prevailed. During May, the same month in which the Union first demanded recognition as bargaining represent- ative, and well after the Company, by posting a letter to all employees on its bulletin board, had made known its strong opposition to the Union, Vice President Darnall conducted a poll of the em- ployees. He approached each employee in- dividually, and handed the employee a slip of paper reading as follows: I am sure that you are aware that the Food Store Employees Union are trying to organize this store. I would like to ask you if you want the Union to represent you. You do not have to answer if you do not want to. This will have no bearing on your job. Name Yes ( )Yes( )No( ) No Comment ( Please sign and check one. Thanks Each employee signed and marked this "ballot" in Darnall's presence and returned it to him.4 During May, June, and July, the Company dispatched several written communications to its employees stressing the Company's opposition to the Union. The literature, which is in evidence as General Counsel's Exhibits 8 through 11, in my judgment manages to stay within the area of views, argument, and opinion permitted by Section 8(c) of the Act. Cf. National Food Stores, Inc., t/a Big Bear Super Markets, 169 NLRB 94. After the Company rejected the Union's demand for recognition, the Company filed a petition with the Board culminating in an election on July 13 The balloting was conducted in the lounge which was separated from the store by the warehouse, so that employees leaving their work to go to vote passed through the warehouse. Before the voting commenced, a number of company officials and some union representatives were in the warehouse. The Board agent conducting the election directed them to go out of the warehouse before the polls opened, and they complied with this directive. Dur- ing the balloting the warehouse door was closed. However, the employees going to and from the polls passed the waiting groups of company and ' The tally showed I 1 "Yes," 13 "No," and 6 "No Comment " Three employees were not polled HECK'S INC. union officials, and some conversations occurred between employees and one or both of the groups. The complaint alleged that the Company violated the Act by "positioning [supervisors] in the store in such a way as to insure that employees on their way to the polling place would have to walk past them." At the conclusion of General Counsel's and Charg- ing Party's case, I granted the Company's motion to dismiss this allegation for failure to establish a prima facie case. The Union lost the election, held July 13, by a vote of 19 to 16 with I ballot challenged. After the filing of the unfair labor practice charge and the objections to the election, Company Counsel Hol- royd, in the presence of Vice President Darnall, in- terviewed a number of employees, individually, in the store manager's office. Holroyd explained to the employees that he was interviewing them because of the charges and objections filed with the Board He then proceeded to ask them whether their working rules had been changed in June 1967, and also whether any supervisor had (a) stated that the Union put Montgomery Ward out of business in Clarksburg, or (b) stated that Heck's would close before it let a union in, or (c) asked about at- tendance at a union meeting, or (d) asked how the employees would vote in the election. Holroyd noted the employees' answers on a mimeographed form he had prepared, and asked each of the inter- viewed employees to swear to and sign the completed form Several employees declined to do so, and one (James McPherson) testified that Hol- royd said, "I can make you sign." 2. Concluding findings The threats, attributed to Jones, Pulice, and Had- dad, that the store would close if the Union came in, would manifestly violate Section 8(a)(1) of the Act. In each case the employer-representative, called as a witness, denied the threat. Similarly, Morris denied questioning Marsh as to how Marsh intended to vote. These conflicts in the testimony I resolve in favor of General Counsel's witnesses, for reasons summarized below. The various employee witnesses, whose testimony I credit, impressed me as testifying care- fully, with high regard for the truth and with con- siderable corroborative detail. Also I note that in many instances their testimony attributing illegal in- terrogation and threats to supervisors was con- sistent with statements that they gave (according to their uncontradicted testimony) to Company Coun- sel Holroyd when he interviewed them after the election.6 S Company Vice President Darnall promptly dispatched a telegram to each of the other stores in the Heck chain, advising them that the Union had lost the election "by an overwhelming majority" and directing them to post the telegram on their bulletin boards A similar telegram was sent from 2235 In contrast to the employee witnesses whom I credit, I found Jones, Pulice, and Haddad less than fully believable. In addition to the matter of demeanor I note the following: (1) Jones testified that she had never discussed the matters to which she testified with anyone, that she did not even know she was to testify at all until about 2:45 p.m. on the day she took the stand, and that when she called the store manager earlier that day he had said he did not know whether she would be called. The story strikes me as incredible, for Jones had re- peatedly been named as a perpetrator of unlawful conduct as far back as the previous July, and she had figured prominently in the testimony of General Counsel's witnesses a week before she took the stand. Moreover company counsel had ex- pected to finish his entire case by noon, so that if Jones' story is to be believed, but for the unex- pected delay in finishing the Company's case, she would never have been called and the accusations against her would have gone unrebutted. Finally, Surock testified that the store manager told him at 9 a m. that day that Surock, Jones, and another su- pervisor would be testifying that day, which casts some shadow over Jones' testimony that at noon the store manager was uncertain. These matters serve to reinforce the unfavorable judgment I formed of Jones' credibility. (2) Haddad parried an inordinate number of questions by saying "I don't recall," but managed to recollect that he had discussed with some employees the "rumor" that Montgomery Ward's closing was caused by the Union. His statement that he "kidded" with the em- ployees furnishes no defense to a threat to transfer "bad girls," uttered in a context of antiunion state- ments. A.P. Green Fire Brick Company v. N.L.R.B., 326 F.2d 910, 914 (C.A. 8). In any event, I also credit the employees' testimony over Haddad's denial that he threatened to follow Montgomery Ward's example and close the store if the Union came in, and this statement alone would establish unlawful coercion by the Company. (3) I had more difficulty assessing the credibility of Pulice than I had in forming the conclusion that Jones and Had- dad were not reliable witnesses. Pulice "explained" the surveillance attributed to him, because he re- called that on that day, some 9 months before he testified, he had left the store and started for home when he realized he had forgotten a package at the store, so that he returned to the store and then retraced his route toward home. This circumstance brought him past the union meeting place three times, and he thought he "probably looked over" to the group of employees there, although he averred that he had driven past at his normal rate of about the Company's Kanawha City store to the Clarksburg store following a poll of the Kanawha City employees which Darnall conducted 6 Employee Kimble's testimony was contrary to the statement she gave Holroyd She repudiated that statement and explained twice that she was "very nervous" when Holroyd interviewed her 2236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 30 miles per hour . Indeed , Pulice's recollection of the events was so vivid that he remembered that on his way back to the store he passed a truck just as he went by the meeting place, so that he did not see the employees on that leg of his trip. As Pulice drives this route two or three times a day, and frequently passes trucks, his recollection of this particular vehicle as blocking his view suggests either a fabulous memory or some greater interest in the identity of those at the meeting place than he was willing to admit . In any event , to return to the question of Pulice's credibility vis-a-vis the em- ployees who testified to his threats that the store would close if the Union came in, the testimony of Kimble, Jeffers, and Mason in describing their con- versations with Pulice impressed me as truthful. I have credited their testimony in other respects, and while I am not as firm in my conviction that Pulice is to be discredited as I am in dealing with Jones and Haddad , I shall resolve this close issue in favor of the employee witnesses. As to the similar threat which employee Marsh attributed to Vice President Darnall , I note that Marsh first testified she was "not sure" as to Dar- nall's comments because "it 's been so long ago." When asked what Darnall had said " would happen if the Union came in," she replied . " The store might have to close down, I guess." In the light of this testimony, I credit Darnall 's denial that he ut- tered the explicit threat . Darnall testified , however, that he had a conversation with Marsh the night be- fore the election in which he explained the store's parlous existence in terms of its narrow margin of profit . Such a conversation , on the eve of an elec- tion between a highly placed company executive and a newly hired cashier of itself suggests that the employer representative was "campaigning" but I am not prepared to find that he overstepped the line between argument and threat. I credit Marsh's testimony that Morris interrogated her, however, for Marsh did not qualify her testimony with respect to Morris as she did with respect to Darnall, and Morris ' overeagerness to deny all allegations, even before the question was asked , did not inspire confidence in her veracity . Also it is possible that Morris forgot her conversation with Marsh, for Morris apparently did not even recall later conver- sations with Holroyd. As to the surveillance episode, discussed above, the Union cannot be heard to complain, if it chooses to hold its meetings in a prominent spot on a well-traveled road , merely because management representatives drive by, and even if they turn their heads toward the gathering . Pulice's explanation that he had to retrace his steps that evening and hence passed the spot three times is not so incredi- ble as to require rejection. Pulice 's recollection that a truck he was passing blocked his view suggests he had a high degree of interest in learning who was at the meeting place, although , if credited , it tends to support his estimate of his speed rather than the ab- normally slow rate the employee witnesses at- tributed to him. In any event , I find that Pulice's presence in the area was occasioned by legitimate purposes of his own rather than by a desire to spy on the meeting. Similarly, Surock 's alleged knowledge (which he denied) that the employees were having a union meeting at a bowling alley would not establish that he or anyone else in management had spied on the meeting. I therefore dismiss the allegation of unlawful surveillance. Darnall 's poll of the employees as to their pro or antiunion sentiments seems to me palpably illegal. This was not casual or isolated interrogation, but involved the employer's making of a written record as to the union views of every employee Such polling, when held lawful , has always been by secret ballot, and the requirement here that the employee sign the "ballot " stamps the entire episode as il- legal. See N.L.R.B. v. Protein Blenders, Inc., 215 F.2d 749 (C.A. 8); N.L.R.B. v Roberts Brothers, 225 F.2d 58 (C A. 9), N.L. R B. v. Russell Kingston, 172 F.2d 771 (C.A. 6). The interviews which Holroyd conducted after the election apparently were for the lawful purpose of enabling the Company to meet the charge and the objections to the election. Nevertheless, certain important safeguards which the Board and the courts have said should accompany such interviews were lacking. I note, for example, that the em- ployees were not assured that no reprisal would take place, that their participation was not on a voluntary basis, that they were asked to swear to an affidavit setting forth their answers to Holroyd's questions, and that at least one of them was so ner- vous as to give incorrect statements in response to Holroyd 's inquiries . On the other hand, not all the employees called into the office answered Hol- royd' s questions , and of those who did, several refused to sign . Under all the circumstances, and considering also the general antiunion atmosphere, I find Holroyd's interviews exceeded legitimate bounds, because of his failure to reassure the em- ployees that they were free not to cooperate without prejudice to their jobs and because he at- tempted to get them to swear to their statements. See N.L.R.B. v. Neuhoff Brothers Packers, Inc., 375 F.2d 373, 377-378 (C.A.5) The interviews by Holroyd, a company agent , in the presence of other company supervisors thus violated Section 8(a)(1), although the matter is somewhat cumulative in the light of Darnall 's earlier unlawful poll I find that McPherson misunderstood Holroyd, and that the latter did not say "I can make you sign." In sum , I find that the threats of Jones, Haddad, and Pulice, the interrogation by Morris, the polling by Darnall , and the postelection interviews by Hol- royd constituted interference , restraint , and coer- cion in violation of Section 8(a)(1) of the Act. HECK'S INC. B. The Refusal to Bargain 1. The Union's majority status The Union made a telegraphic request of the Company for recognition on May 20, and repeated the request orally on June 13. Both requests were refused, as the Company expressed a doubt of the Union's majority and stated that the matter should be resolved by an election. By May 20, the Union had obtained cards from 19 of the 33 employees then in the bargaining unit,' and by June 13 it held cards from 23 of the 38 then in the unit ." The Com- pany introduced testimony which, if fully credited and given its broadest possible sweep, would cause me to reject three or four of the Union's cards. For reasons developed below, I find that all cards, in- cluding those brought into question by the Com- pany, were valid. The Company produced two employee witnesses, Alice Neely and Avis Wetzel, who testified that they signed their cards after the union organizer told them, separately, they would lose their jobs if they did not. Neely, moreover, was accompanied in the interview with the union organizer by another employee, Evelyn Carpenter, who signed at the same time and, according to Neely, after the same threats. The fourth card under attack is that of em- ployee Ursel Strosnider, who was confined to a hospital during the hearing, but who, the record suggests, would not have signed a card but for Wet- zel's having done so. There is also a suggestion in the testimony that Strosnider told Neely that she (Strosnider) signed out of fear, but this is not probative evidence of Strosnider's motivation. Neely, whose credibility is difficult to assess in view of her admittedly nervous state while testify- ing, stated that for some days before they signed cards, she and Carpenter had been followed, as they drove through Clarksburg, by a car containing the union organizers. On one occasion, according to Neely, a rock struck her car, and she was sure it was thrown from the car following her. (I accept and credit the testimony of the union representa- tives that they did not engage in any car-following or rock-throwing, but I will accept Neely's state- ment that she believed these men had followed her car and thrown a rock. This may involve some stretching of credulity, for Neely also testified that she knew the union men wanted to see her as they had so informed her husband, and a normal person might reason that if they pursued so routine a method of approaching her they would not have resorted to shadowing, pursuing, and rock-throw- ing. But Neely did not impress me as "normal" and I will credit her testimony that she held this bizarre and unfounded belief ) ' The stipulated bargaining unit includes all the employees in the Clarks- burg store except for supervisors, guards, and professional employees s The Union obtained five new cards between May 20 and June 13, but I 2237 On May 18, at the suggestion of a fellow em- ployee who supported the Union, Neely and Car- penter met with one or two fellow employees and the union organizers at a restaurant after work. Neely testified that before going to this meeting, she and Carpenter had decided to sign union cards "if they [the Union] had anything to offer us and various things like that when we talked it over, saw what they had to offer." During the conversation at this meeting, which lasted over an hour, Neely asked a number of questions dealing with possible union benefits, such as retirement and insurance, and how long she would have to be a member be- fore obtaining these benefits. In the course of the conversation the union representatives told the two employees that when the Union became the bar- gaining representative and obtained a contract "after 30 days all employees at the place would be- long to the Union."9 A fair summation of Neely's testimony is that, whatever her fears may have been, she went to meet the union organizers, discussed possible union benefits at some length, learned that if the Union obtained a contract union membership would probably become a condition of employment, and signed the card. I find nothing in this to lead me to eliminate Neely, or her companion Carpenter, from the list of those supporting the Union at the time it claimed recognition. I note also that Neely marked Darnall's "ballot" as to show her support of the Union. Neely testified that she told Darnall at the time that she had signed a union card "under pres- sure." Darnall's testimony contains no mention of any such comment by Neely, and I credit the testimony of employee Davis that she overheard the exchange between Neely and Darnall and that no such remark was made . Neely's testimony reveals a determination , as of the date of the hearing, to op- pose the Union, but her recollection of the events of the preceding May and June appears highly colored by her frame of mind at the time of testimony. This comment also applies to Wetzel, whose testimony is discussed below. Curiously both Neely and Wetzel positively named one of the union organizers who interviewed them as one Huffman, although the record conclusively establishes that the man in question was Carl Lam- bert, and that Huffman, another organizer , had left the city by the date in question . Why Neely swore the man was Huffman is not explained on the record, but Wetzel testified that her recollection to this effect had recently been refreshed by Holroyd. I note that Huffman's name did appear in the record and in exhibits received in evidence on the first day of the hearing , and that Wetzel and Neely did not testify until a week later. I do not believe that Neely willfully testified falsely, but her nervous of the original 19 employees had left the Company by the latter date ' I do not credit Neely's testimony that the organizers told her that if she failed to sign the card she "could lose I her) job with the Company " 2238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD condition and the general tenor of her testimony lead me not to credit her where there is probative evidence contrary to that which she gave. Wetzel testified that in her meeting with the union organizers she first expressed fears, which they assuaged , that if she signed for the Union, the Company would discharge her The meeting in Wetzel's home lasted over 90 minutes , and accord- ing to Wetzel she finally signed the card when the organizers told her that "the Union is going in . . and when it gets in [she would] have to join the Union to keep [her] job." I credit the testimony of Lambert and Skaggs , the two union organizers, that they explained to Wetzel and to Neely that once the Union obtained recognition it expected to ob- tain a contract which would require employees to join in 30 days. I find nothing in the above which suggests that the Union obtained Wetzel's card by improper means. Moreover, Wetzel apparently attended several union meetings ( even during inclement weather which kept others away) at which she spoke in favor of the Union , and she marked Dar- nall's "ballot " for the Union, although she ex- plained to him she had been " more or less pushed into" signing a union card. Finally, Wetzel herself testified that she telephoned Strosnider while the union organizers were at Wetzel 's house and said "I signed . I don't know what you are going to do If you want to sign , that 's up to you. I suppose I might as well lose my job one way as well as another." This statement furnishes no basis for not including Strosnider 's card as a valid designation of the Union. In short , I find that all the cards held by the Union were valid designations, and that it represented a majority of the employees at the time it requested , and the Company refused , recogni- tion. 2. The Company's asserted doubt of the Union's majority On May 25 the Company replied to the Union's May 20 request for recognition , stating that "a majority of the employees have advised the Com- pany that they did not desire your union to represent them ," and adding that the Company had filed a petition with the Board so that the question of majority status could be determined by secret ballot Again on June 13 the Company adhered to its determination to seek an election rather than to determine the Union 's majority by card check, as the Union offered The reference on May 25 to what the employees had told the Company was ap- parently a somewhat inaccurate representation of the results of Darnall 's poll, which showed 11 for, 13 against , and 6 " No Comment." The Company in at least three preceding cases arising in other stores had been confronted with claims of union majorities , but in subsequent proceedings had successfully resisted the Union's attempt to obtain enforceable bargaining orders. See Heck's, Inc., 159 NLRB 1151, 159 NLRB 1331; N.L R.B v Heck's, Inc , 386 F 2d 317 (C.A. 4) In the light of this background the Company's reluctance to recognize the Union pursuant to the latter 's claim of a majority based on authorization cards is certainly understandable , to say the least. There is some evidence , denied by company wit- nesses, that Haddad believed as of July 6 that the Union had cards from a majority, but this would not distinguish this case from that reported at 159 NLRB 1331, 1334-35. The closeness of the vote obtained by Darnall in his poll might give rise to some question as to whether the Company doubted the majority in good faith, for the "No Comment" votes under the circumstances might be interpreted as prounion. Also, the fact that the Company en- gaged in unfair labor practices between the time of the bargaining request and the election may warrant an inference that it sought the election to gain time in which to dissipate the majority. Although the record thus discloses some basis for a finding that the Company did not have a good- faith doubt of majority, I am not persuaded that the preponderance of the evidence leads to that result I note that the Company did expedite the election by filing the petition , and I am particularly in- fluenced by the fact that in prior cases the Com- pany's challenge to card majorities proved well- founded For reasons set forth below, however, I find that a bargaining order should issue to remedy the Section 8(a)( I) violations found above As already noted the Union did in fact represent a majority prior to the Company 's unfair labor practices , and indeed lost the election by only a narrow margin after the Company committed vari- ous illegal acts . At least six employees , nearly one- fifth of the entire bargaining unit, were threatened by supervisors that advent of the Union would result in closing of the store ( Even company wit- nesses Neely and Wetzel testified that employees were afraid of being discharged if the Company learned they signed union cards ) Under these cir- cumstances it is reasonable to infer, and I do, that the unfair labor practices destroyed the Union's previously existing majority status . A proper remedy for those unfair labor practices is to restore the Union to its majority status , with the con- sequent imposition on the Company of a duty to recognize the Union and bargain with it upon request . See, e g., N.L R.B. v. Delight Bakery, Inc., 353 F.2d 344, 347 (C.A. 6). CONCLUSIONS OF LAW 1. The Company by interrogating its employees as to their union acivity, polling them in a non- secret ballot to ascertain which employees sup- ported the Union , and threatening to close the store if the Union became the bargaining representative, HECK'S INC. engaged in unfair labor practices affecting com- merce within the meaning of Sections 8 ( a)(1) and 2(6) and (7) of the Act, and tended to dissipate the majority status which the Union enjoyed prior to the unfair labor practices. 2. By interviewing employees under coercive cir- cumstances concerning matters relating to unfair labor practice charges and objections to an election the Company engaged in further unfair labor prac- tices affecting commerce within the meaning of Sections 8(a)(1) and 2(6) and (7) of the Act THE REMEDY I shall, of course, recommend that the Company cease and desist from violating Section 8(a)( I) of the Act, and that it recognize and bargain with the Union as the representative of the Clarksburg em- ployees As previously noted, the Company has a number of stores; it opened its 11th store during one of the recesses in this hearing. Its headquarters is in Charleston, West Virginia, and basic labor policy for all the stores is determined there by Messrs. Haddad, Darnall, and Holroyd. That the Company itself recognizes a relationship between events oc- curring at different stores is shown by its conduct in immediately sending a telegram to all other stores, for posting on their bulletin boards, after the Union's defeat in the election at Clarksburg.10 Similarly the Company sent a telegram to its Clarksburg store to advise of the result of its own employee poll at its Kanawha City store . In the light of those facts, and in consideration of the fact that there are eight previous Board orders finding violations at various stores in the Heck's chain ," I believe that the order should be broad enough to restrain future violations of Section 8(a)(1) at any and all of the stores owned by Heck 's. See N.L.R.B. v. Heck's, Inc., 388 F.2d 668, 669 (C.A 4). The Union in its brief makes several suggestions as to further remedies . It asks that a general bar- gaining order issue covering all Heck's stores, so that ( assuming court enforcement in this case) any postdecree refusal to bargain in any store will be at 'o The telegram states that the employees voted by an "overwhelming" majority to reject the Union As the actual vote was 19 to 16, the use of the term "overwhelming " suggests that the Company was engaging to 2239 the risk of a contempt proceeding Assuming, ar- guendo, that such relief might be appropriate in a proper case, I decline to recommend it here, as at this writing there is no outstanding judicially en- forced bargaining order against the Company As- suming that the order here recommended later becomes embodied in a court decree , a sufficiently virulent showing of a bad -faith refusal to bargain might lead to a contempt prosecution under the provisions of the order prohibiting interference with the Section 7 right to bargain collectively. The Union also asks that General Counsel be directed to seek injunctive relief in any future case involving Heck 's. This matter should be left to case -by-case determination , General Counsel will not be unaware of the Company's history if subsequent complaints should issue , and the Union may make appropriate requests in such cases The Union asks that in future cases against Heck 's the Company should shoulder the burden of proving that it had a good-faith doubt of majority. I have grave doubt that the Board has power to shift the burden of proof in cases not yet before it. With respect to this particular case the Union urges that the Company be required to bargain over the conditions of employment prevailing from the date of the violation to the effective date of the new contract . I see no need to particularize this part of the remedy, for the Union is free to bargain over the effective date and can therefore bargain for retroactivity. Cf. Independent Drugstore Owners of Santa Clara County, 170 NLRB 1699. Finally, I decline to recommend that the Union be reim- bursed for its expenses in filing the charge in this case, or in participating in the litigation . See M.F.A. Milling Company, 170 NLRB 1079, TXD, "The Remedy." Finally, in the light of the foregoing and in view of the bargaining order recommended in this case, I find it unnecessary to pass upon certain additional conduct alleged to have affected the results of the election . I recommend that the election be set aside and the representation proceeding be vacated [Recommended Order omitted from publica- tion. ] propaganda at the other stores, and using the Clarksburg election for that purpose " See 150 NLRB 1565, 156 NLRB 760, 158 NLRB 121, 159 NLRB 1151, 159 NLRB 1331, 166 NLRB 186, 166 NLRB 674, 170 NLRB 178 Copy with citationCopy as parenthetical citation