Heck's, Inc.

National Labor Relations Board - Board Decisions

Jan 12, 1966

156 N.L.R.B. 760 (N.L.R.B. 1966)

760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
past practice claim is undisputed." In making this determination,
we are assigning the controverted work on all foreign flag vessels
which dock at Matson Terminals, Inc., in Wilmington, California, to
longshoremen represented by ILWU, and not to that union or its
members. Similarly, we are assigning the disputed work on the MV
Kungsholm and the SS Rotterdam, whenever they dock at Matson
facilities in Wilmington, to personnel represented by MCS, and not
to that union or its members.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the Act, and upon the basis of the
foregoing findings, the Board makes the following determination of
dispute :
1. Longshoremen in the unit represented by International Long-
shoremen's and Warehousemen's Union, Local 13, are entitled to
perform the work of handling passenger baggage as described above
on all foreign flag passenger vessels which dock at the facilities of Mat-
son Terminals, Inc., in Wilmington, California, with the exception of
the vessels MV Kungsholm and SS Rotterdam, for which personnel
in the unit represented by Marine Cooks and Stewards Union, Member
of Pacific District, Seafarers International Union of North America,
AFL-CIO, are entitled to perform the disputed work. As a conse-
quence, MCS is not entitled to force or require the aforesaid Terminals
or PMA to assign the disputed work to its members or to personnel
whom it represents by means proscribed by Section 8 (b) (4) (i) and
(ii) (D) of the Act, except on the vessels named above.
2. Within 10 days from the date of this Decision, MCS shall notify
the Regional Director for Region 21, in writing, whether or not it
will refrain from forcing or requiring, by means proscribed by Section
8(b) (4) (i) and (ii) (D) of the Act, the assignment of the work in
dispute in a manner inconsistent with the above determination.
n ILWU conceded MCS' superior claim to handle passenger baggage work on the MV
Kungsholm since its members have performed the work exclusively since the vessel first
docked in Los Angeles in 1956 . While ILWU did not similarly concede MCS' right to
handle such work on the SS Rotterdam , it failed to dispute or grieve Terminals' assign-
ment to MCS when the vessel was berthed in the Harbor in 1961 on its only trip there.
Heck's, Inc. and Food Store Employees Union , Local #347,
Amalgamated Meat Cutters and Butcher Workmen of North
America, AFL-CIO. Cases Nos. 9-CA-3363 and 9-CA-3415-
January 12, 1966
DECISION AND ORDER
On May 4, 1965, Trial Examiner C. W. Whittemore issued his
Decision in the above-entitled proceeding, finding that the Respondent
156 NLRB No. 73.
HECK'S, INC. 761
had engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent filed exceptions to the Trial Exam-
iner's Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Brown].
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 brief, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, except as modified herein.
1. The independent Section 8 (a) (1) violations
The Trial Examiner found, and we agree, that Respondent violated
Section 8(a) (1) by certain acts, which are set forth in detail in the
Trial Examiner's Decision. These included some 11 incidents during
October and early November 1964 wherein Respondent's supervisors
coercively interrogated its employees, threatened them with reprisal
for union activities, solicited them to disavow their union membership,
and, in front of its employees, ordered a union representative to leave
Respondent's store although he had entered the premises to do business
as a customer.'
2. The discharge of Davis and John Brethauer
The complaint alleged that Respondent discharged Davis and John
Brethauer on or about October 20,1964, in violation of Section 8 (a) (3)
and (1) of the Act. Respondent denied these allegations and con-
tended that both employees were discharged for cause, that is, it was
reported to Respondent that each was engaged in union solicitation on
company premises contrary to it no-solicitation rule, which Respond
ent claimed was lawfully in effect at its store at that time'
The Trial Examiner found both discharges to be discriminatory
as alleged. In so finding as to Davis, he rejected Respondent's defense
as unsupported by the facts, doing so on the basis of Davis' credited
i In the absence of exceptions thereto , we adopt , pro forma, the Trial Examiner's
recommendation to dismiss the allegations of the complaint that Respondent further
violated Section 8(a) (1) by engaging in surveillance on November 3, and by granting
wage increases in mid -October.
2 Respondent contended that two other employees had reported that Davis and Brethauer
were soliciting signatures to union authorization cards at the store. Store Manager Hull
testified that he effected the discharges purely on the basis of the report and that he did
not investigate to determine its veracity.
762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and unrebutted testimony that she had never engaged in soliciting
union authorization cards in the store.3 Further, he rejected the
defense as to Brethauer on the ground that Respondent had not proved
that it had promulgated any no-solicitation rule prior to his discharge.
In its exceptions and brief, Respondent contends that the 8(a) (3)
violation finding as to Davis must fall because, even if it be found
that Davis was not discharged for violation of the no-solicitation rule,
the General Counsel has not established that she was discharged for
discriminatory reasons. In respect to Brethauer, Respondent again
contends that there was a valid no-solicitation rule in effect at the
store on October 20 and that Brethauer by his own admission was
discharged after he had violated it. It further contends that, even
if it be found that Brethauer was not discharged for soliciting at the
store, the General Counsel has not proved that Brethauer was dis-
charged for any unlawful reason. We reject these contentions.
Davis had signed an authorization card and had attended union
meetings. Brethauer had been more active. In addition to his
admitted soliciting of signatures to authorization cards at the store,
he had solicited them elsewhere, had been in contact with a union
representative relative to union affairs, had attended union meetings,
and had signed a card himself. While there is no specific testimony
that Respondent knew of these union activities of Davis or Brethauer,
it is manifest from statements made by Respondent's supervisors that
it kept close tabs on the organizational activities of all its personnel 4
Moreover, Respondent's asserted reason for its discharge of Davis and
Brethauer, engaging in union solicitation in violation of a store rule,
contains in itself a concession of knowledge. Respondent's animus
toward union organizational activities is graphically demonstrated
by its supervisors' aforementioned campaign of threats, coercion, and
intimidation of employees because of their union sympathies.
The General Counsel, by showing the union activities of Davis and
Brethauer, the Respondent's knowledge thereof, and union animus
on the part of Respondent that supports an inference of discriminatory
intent, has established a prima facie case in regard to both discharges.'
The next question is whether Respondent's defense has overcome the
General Counsel's showing, that is, whether Respondent has proved
3 The two employees who purportedly made the report did not testify at the hearing
4 Thus, as more fully described in the Trial Examiner 's Decision , Supervisor
Ellis told employee Jerry Brethauer on October 20, 1964, that he knew a union man had
been at Brethauer ' s home and at the home of Rule Perry . On October 27, 1964 , Manager
Skaggs stated that he knew of 13 individuals who attended a union meeting at the home
of employee Alleman earlier that month . Manager Hull , in speaking to employee Susan
Lee about October 20 , indicated he was aware of yet another union meeting which had
taken place at the home of Rule Perry . Also, Respondent interrogated a number of em-
ployees to determine if they had signed authorization cards
5 See N.L.R . B. v. Whitin Machine Works , 204 F . 2d 883 (C A 1).
HECK'S, INC. 763
that its real motive for both discharges was not to discourage union
activities but was rather to discipline Davis and Brethauer for viola-
tion of Respondent's claimed no-solicitation rule.
The evidence is conflicting as to whether Respondent had ever
promulgated a no-solicitation rule before October 20, the date of
both terminations. It is clear, however, from the testimony of Man-
ager Hull, who effected the discharges, that he had never warned
any employee that discharge was the penalty for violation of such
rule, and that to his knowledge no supervisor under him had ever
issued such a warning.
In any event, assuming that a no-solicitation rule-even a valid
one-was promulgated before October 20, we are convinced in all the
circumstances of this case that any actual or alleged violation of that
rule was not the reason which motivated Respondent to discharge
Davis and Brethauer. In the context of the campaign by Respond-
ent's supervisors to defeat the organization of its employees, we believe
that Respondent seized on the report that Davis and Brethauer were
soliciting signatures at the store as a convenient excuse to rid itself
of two of the individuals it had already marked as union adherents.
The discharge action was precipitate. No warning was given. The
report was never even investigated. And, as to Davis, the record
demonstrates that it was clearly erroneous.' Moreover, later the same
day, Manager Hull as much as admitted to employee Spiker that
Respondent considered that its right to be free of solicitation at the
store was a right which it could exercise, as it saw fit, as a pretext
upon which to punish union adherents. Thus, Hull told Spiker 7 that
he had just terminated two people for soliciting on behalf of the Union
and could discharge Spiker for the same reason, if he wished, but
would not do so since he had decided not to "fire anyone else."
Accordingly, we conclude, in agreement with the Trial Examiner,
that Respondent discriminatorily discharged Davis and Brethauer in
violation of Section 8 (a) (3) and (1) of the Act.8
3. The discharges of Eddy and Perry
The Trial Examiner also found that Respondent had discharged
Department Head Ruie Perry and Acting Department Head Noah
Eddy in violation of Section 8(a) (3) and (1). In its exceptions and
8 See footnote 3, Supra. Further , as Davis' discharge was motivated by a belief that
Davis engaged in union activities even under Respondent 's own version of the discharge,
and as Respondent was wrong in its further belief that Davis had engaged in union
activities of an unprotected character , this alone is enough to support a finding of an
8(a) (1) and (3) violation as to her wholly apart from the other considerations on which
we rest our decision herein . Cf. N.L.R.B. v. Burnup and Sims, Inc., 379 U.S. 21.
7 Spiker was 'a union adherent who had signed an authorization card on October 8.
8 Southwire Company, 145 NLRB 1329, 1331 ; Ripley Manufacturing Company, 144
NLRB 1132, 1156; Idaho Potato Processors , Inc, 137 NLRB 910; Standard Trucking
Company, 134 NLRB 371.
764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
brief Respondent again advances the contention, which was rejected
by the Trial Examiner, that since Perry and Eddy were supervisors,
their discharges cannot constitute unfair labor practices. We find
merit in this contention.
At relevant times herein Respondent employed some seven regular
or acting department heads : Darrell Ellis, Robert Welch, John
McClung, Betty Shepard, Rudolph Parrish, Ruie Perry, and Noah
Eddy.9 The General Counsel conceded that Ellis and Welch are
supervisors. The record indicates that the duties of the other depart-
ment heads are substantially the same as those of Welch and Ellis.
Thus, each department head schedules the daily work for his depart-
ment as well as the days off for employees assigned to it. The depart-
ment heads receive higher salaries and bonuses than employees
working under them, attend supervisory meetings, get preference for
vacations, have access to sales figures, and are responsible for the work
of each department. It further appears that their duties, prereq-
uisites, and responsibilities are substantially the same as those of the
department heads at Respondent's Ashland, Kentucky, store, whom
the Board previously found to be supervisors.lo
Perry was a full-fledged department head at the time of her dis-
charge on December 19, 1964. While Eddy was only an acting depart-
ment head, he had been assured at the time of his hiring in late Septem-
ber 1964 that he would attain a permanent position as a department
head if he performed satisfactorily during a probationary period of
a few months. If, at the end of the period, his performance as a
department head was found wanting by Respondent, he was to be
released . From the time he was hired until October 31, 1964, when he
was terminated , his duties appeared to be the same as those of the
permanent department heads. He was responsible for the operations
of his department, scheduled work, saw to it that goods were appro-
priately marked and displayed, and attended supervisory meetings.
Thus, it appears that Eddy was hired only for the purpose of becom-
ing a permanent department head and that he functioned as such
during his trial period.1'
In view of the foregoing, we conclude that John McClung, Parrish
Shepard, Perry, and Eddy were supervisors within the meaning of
Section 2(11) of the Act at all relevant times herein. Therefore, we
find that by terminating Eddy and Perry, Respondent did not violate
?Another Individual , Helen Richards , was also a department head at the time of the
hearing However , the evidence indicates that she did not enjoy this status during the
Union's organizational campaign in October 1964 nor at the time of the Union's demand
for recognition on October 22
10 Heck's , Inc., d/b/a Heck's Discount Store, 150 NLRB 1565.
u Hy Plains Dressed Beef, Inc., 146 NLRB 1253, 1260 , 1261 ; WTOP Inc., 115 NLRB
758, 759.
HECK'S, INC. 765
Section 8 (a) (3) of the Act.12 Further, inasmuch as the record does
not establish that their discharge was motivated other than by a pur-
pose to discourage their union activities as supervisors, we likewise
conclude that Respondent did not thereby violate Section 8(a) (1)
of the Act.13
We shall, accordingly, dismiss the complaint as to Perry and Eddy.
4. The Section 8 (a) (5) violation
The Trial Examiner found that Respondent violated Section
8 (a) (5) and (1) of the Act by refusing to bargain with the Union
after the demand for recognition on October 22, 1964. In support
of its exceptions to this finding, Respondent argues that its refusal
to bargain was not unlawful, because the unit in which the demand
for recognition was made was inappropriate for the purposes of
collective bargaining and, in any event, according to Respondent, the
Union did not represent an uncoerced majority at the time of its
demand. We reject both of these contentions as lacking in merit.
a. The unit contention
The complaint alleged, the Trial Examiner found, and we agree,
that the appropriate unit consists of :
All employees at Respondent's Parkersburg, West Virginia, store,
excluding all office clerical employees, guards, professional employees„
and supervisors as defined in the Act.14
As more fully set forth in the Trial Examiner's Decision, Sherwood
Spencer, an official of the Union, demanded recognition of Store
Manager Hull during the course of a telephone call on October 22
and in a letter received by Respondent on the following day. It does
not appear that the precise unit was described in the phone call. The
letter, however, stated that the Union sought recognition as the bar-
gaining representative of "the employees" at Respondent's Parkers-
burg store. Although Respondent never met with the Union for the
purpose of discussing the inclusions in and exclusions from the claimed
unit, Respondent now contends that any unit of "all the employees at
the store" would be inappropriate because it would include confidential
employees, supervisors, guards, and temporary employees.
The issue posed by Respondent's contention is whether the unit in
which bargaining was initially sought is so clearly inappropriate as to
relieve Respondent of any obligation to bargain collectively therein.
Stated another way, Respondent's contention is that there is a sub-
stantial variance between the unit originally sought and the unit
found appropriate.
12 Gibbs Automatic Division , Pierce Industries, Inc., 129 NLRB 196.
18 National Freight, Inc., 154 NLRB 621.
24 See Allied Stores of New York, Inc. d/b/a ,Stern's, Paramus, 150 NLRB 799.
766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The record shows that on October 22, 1964, Respondent employed
47 individuals at its Parkersburg store in addition to the manager
and assistant manager. Since the Union's demand covered only
"employees," it cannot be deemed to embrace the manager and assist-
ant manager or the seven department heads previously referred to.15
Respondent avers that three other employees must be excluded as
guards-Griffin, John Brethauer, and Jerry Brethauer. The parties
ultimately agreed that Griffin, the full-time night watchman, should
be excluded as a guard. Accordingly, we exclude him. As to the
Brethauers, the record indicates that they were employed full time
by Respondent in its hardware department and filled in as guards only
on a part-time basis during nonbusiness hours when Griffin was off
duty. Since these part-time functions were performed when other
employees were not present, we find that the employment interests
of the Brethauers are not opposed to, and in fact are consistent with,
those of other employees with whom they work on a full-time basis
in a nonguard capacity during the normal business day. Accordingly,
we find the Brethauers are properly included in the appropriate unit.16
Also in issue is the exclusion of one confidential employee, Billie
Allman.17 The record indicates that Allman's main duties are in the
housewares department. She also performs work on a relief basis
during the lunch hour and on weekends in the office. During the latter
time, she has access to the employees' timecards. We do not believe
that these "fill-in" duties are of a nature to warrant finding her to be
a confidential employee.18
The record is unclear whether employees Casto and Tyree were
hired permanently or only on a temporary basis. However, even if
we were to exclude both Casto and Tyree from the appropriate unit as
temporary employees, the difference between the unit of store employ-
ees initially requested by the Union, and the unit found appropriate,
amounts to only three to five individuals (guard Griffin, office clericals
15 Inasmuch as all of these individuals are supervisors, they would be excluded by
definition from the term "employees ." See Section 2(3) of the Act.
1e See United States Gypsum Company , 152 NLRB 624 . In contending that the
Brethauers should be excluded , Respondent relies upon the Board 's decision in Walter-
boro Manufacturing Corporation, 106 NLRB 1383 . Walterboro is, however , inapposite
to the present case. In Walterboro , the Board determined to exclude certain individuals,
employed 75 percent of the time as maintenance personnel and 25 percent of the time as
guards, because they were responsible , at those times when they were performing guard
duties, to enforce against their fellow employees rules to protect plant property. In the
present case , the Brethauers, as noted , perform their part-time guard duties and protect
Respondent's store during nonbusiness hours ; i e , after their fellow employees have gone
home
17 Respondent also contends that Feick and Newcomer should be excluded as confidential
employees . However, the parties stipulated at the hearing to the exclusion of Newcomer
as an office clerical employee . Since the record indicates that Feick 's duties are the same
as those of Newcomer , except that Feick is on a different shift, we likewise exclude Feick
as an office clerical employee. Inasmuch as both are excluded on this basis , we need
not reach the question whether they also act in the capacity of confidential employees
18 Swift & Company, 129 NLRB 1391, 1393.
HECK'S, INC. 767
Fick and Newcomer, and perhaps Casto and Tyree) in a unit of from
35 to 37 employees.19 In our opinion, this variance is a minor and
insubstantial one. Hence, the unit in which the Union initially
demanded recognition was not so inappropriate as to relieve Respond-
ent of its obligation to bargain 20 Moreover, at no time did the
Respondent raise any question, in refusing to meet and discuss the
Union's request for recognition, as to unit inclusions or exclusions.
On the contrary, by its refusal to consider the Union's request for
recognition and the offer to prove its majority, it foreclosed any
clarification by the Union as to the scope of its requested unit.
b. The contention that the Union did not represent
an uncoerced majority
Respondent contends that a number of cards received in evidence by
the Trial Examiner should be rejected, some because they were signed
or solicited by the department heads, whom we have found to be super-
visors, and others because the employees were coerced into signing
them on the basis of the threat that, if they did not sign, they would
lose their jobs after the Union organized the store. Respondent further
contends that, in view of the presence in the Union's card showing
of authorizations signed by the department heads and other personnel
in excluded classifications, the Union's majority, if any, is unclear.
Finally, Respondent contends that the Union's entire card showing
should be rejected because it has been "tainted" by the participation
of the department heads in the Union's organizational campaign.
We find merit in Respondent's contention that certain cards should
be excluded, but we find, nevertheless, that the remaining cards show
that the Union represented a clear, uncoerced majority at the time of
its demand for recognition on October 22.
The Trial Examiner received in evidence a total of 37 authoriza-
tion cards signed by personnel at the store here involved. Of these,
we exclude the cards of the five regular or acting department heads
(John McClung, Shepard, Parrish, Perry, and Eddy), the card of
the guard Griffin, the card of the office clerical Feick, three more
cards (those of Murray, Thomas, and Lee) which were solicited by
Department Head Perry,21 and the cards of two employees who
testified they were coerced into signing on the basis of threats to their
job security. Even if we were also to exclude the cards of three more
ie I.e , the total complement of 47 less the 7 department heads, the guards, the 2 office
clericals , and possibly Casto and Tyree. If Casto and Tyree were , in fact, temporary
employees , they would be excluded . E g , Owens-Corning Fiberglass Corporation, 140
NLRB 1323, 1326.
20 The Hamilton Plastic Molding Company, 135 NLRB 371, 373.
a The record indicates that Perry also solicited the card of Griffin, which we have
already excluded, and that Department Head Shepard solicited the cards of the office
clerical, Feick, and Department Head John McClung, which cards we have likewise al-
ready excluded . There is no indication that any other cards were solicited by supervisors.
768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees , to whom offers of proof were made that they likewise
signed under similar threats,22 and the cards of the alleged temporary
employees Casto and Tyree, the Union would still possess a majority
of at least 20 in a unit of 35.23
While it is true, as Respondent asserts, that the five regular or
acting department heads, just mentioned, participated in varying
degrees in the Union's campaign to organize Respondent's Parkers-
burg store, we do not believe, in the circumstances of this case, that
their involvement was sufficient to "taint" the Union's entire card
showing . At the time of the Union's organizational campaign in
October, management itself did not consider these department heads
to be supervisors, and they were not informed that they enjoyed such
a status until December 18, 1964, almost 2 months after the demand
for recognition. Nor does it appear that the employees regarded
these department heads to be supervisors at the time of the Union's
campaign . Accordingly, we are not convinced that their participation
in the campaign constituted a coercive element sufficient to destroy the
'validity of the Union's card showing.24 And, as we have found, even
eliminating the authorization cards solicited or signed by these depart-
ment heads and the other cards previously discussed, the remaining
authorizations are more than sufficient to establish that the Union had
a majority.
In view of all the foregoing, including the campaign by Respond-
ent's supervisors to defeat the organization of Respondent's employ-
ees and the discriminatory discharges, we find, in agreement with the
Trial Examiner, that the Respondent has, on and since Octo-
ber 22, 1964, refused to bargain with the Union in violation of Section
8(a) (5) and (1) of theAct.25
ORDER.
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby orders that the
Respondent, Heck's Inc., Parkersburg, West Virginia, its officers,
agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Food Store Employees Union,
Local #347, Amalgamated Meat Cutters and Butcher Workmen of
22 The offers of proof were rejected by the Trial Examiner
as Or a majority of 22 in a unit of 37, including Casto and Tyree
94 See Aero Corporation , 149 NLRB 1283 . The Trial Examiner 's decision in the afore-
mentioned case involving Respondent ' s Ashland , Kentucky, store, did not issue until
October 28, 1964, subsequent to the Union 's demand for recognition herein. In that case,
as noted, the Trial Examiner rejected Respondent ' s contention that the department heads
at the Ashland store were not supervisors , and found instead that they possessed that
status. The Board ultimately adopted these findings.
25 Joy Silk Mills, Inc., 85 NLRB 1263, enfd. 185 F. 2d 732 ( C.A.D.C. ), cert denied 341
U.S. 914
HECK'S, INC. 769
North America, AFL-CIO, or in any other manner discriminating
against employees in regard to hire or tenure of employment, or any
terms or condition of employment.
(b) Refusing to bargain collectively with the above-named labor
organization as the exclusive representative of all its employees in
the appropriate unit with respect to rates of pay, wages, hours'of
employment, and other terms and conditions of employment.
(c) Coercively interrogating employees in respect to their union
activities.
(d) Threatening employees with reprisal for their union activities.
(e) Soliciting employees to disavow their membership in a union.
(f) In any other manner interfering with, restraining, or coercing
employees in the exercise of the rights guaranteed by Section 7 of
the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer immediate and full reinstatement to employees John
Brethauer and Shirley Davis and make them whole for any loss of
pay suffered by reason of the unlawful discrimination against them,
in the manner set forth in the section of the Trial Examiner's Decision
entitled "The Remedy."
(b) Preserve and, upon request, make available" to the Board or
its agents ,.for examination and copying, all payroll records, social
security payment records, timecards, personnel records and reports,
and all other records necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Notify John Brethauer and Shirley Davis if presently serving
in the Armed Forces of the United States of their right to full rein-
statement upon- application in accordance with the Selective Service
Act and the Universal Military Training and Service Act, as amended,
after discharge from the Armed Forces.
(d) Upon request, bargain collectively with Food Store Employees
Union, Local #347, Amalgamated Meat Cutters and Butcher Work-
men of North America, AFL-CIO, as the exclusive representative of
all employees at its Parkersburg, West Virginia, store, excluding
office clerical employees, guards, professional employees, and all super-
visors as defined by the Act, with respect to wages, hours, grievances,
or other terms and conditions of employment and, if an understand-
ing is reached, embody such understanding in a signed agreement.
(e) Post at its store in Parkersburg, West Virginia, copies of the
attached notice marked "Appendix." 26 Copies of said notice, to be
furnished by the Regional Director for Region 9, shall, after being
28 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, Enforcing an Order."
770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
duly signed by an authorized representative of the Respondent, be
posted immediately upon receipt thereof and be maintained 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 to insure that said notices are not altered, defaced,
or covered by any other material.
(f) Notify the said Regional Director for Region 9, 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 complaint be, and it hereby is, dis-
missed insofar as it alleges any violation of Section 8 (a) (1) not found
by the Board and insofar as it further alleges that Respondent violated
Section 8(a) (3) and (1) of the Act by discharging Supervisors Eddy
and Perry.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT discharge or otherwise unlawfully discourage
you from being members of Food Store Employees Union, Local
$347, Amalgamated Meat Cutters and Butcher Workmen of
North America, AFL-CIO, or any other union.
WE WILL NOT unlawfully question you in respect to your union
activities, threaten you with reprisals therefor, or solicit you into
disavowing your union membership.
WE WILL NOT violate any of the rights you have under the
National Labor Relations Act to join a union of your own choice
or not to engage in any union activities.
WE WILL offer to Shirley Davis and John Brethauer immediate
reinstatement to their former or substantially equivalent posi-
tions without prejudice to their seniority or other rights and
privileges, and make each of them whole for any loss of pay
suffered as a result of the discrimination against them.
WE WILL, upon request, bargain collectively with the Union
named above and, if an understanding is reached, sign an agree-
ment covering such understanding. The unit represented by this
union is all our Parkersburg, West Virginia, store, employees,
excluding office clerical employees, guards, professional employ-
ees, and supervisors as defined in the Act.
All our employees are free to become, remain, or refrain from
becoming or remaining, members of any labor organization, except as
that right may be affected by an agreement requiring membership in
HECK'S, INC. 771
a labor organization as a condition of employment, as authorized in
Section 8(a) (3) of the National Labor Relations Act, as amended, as
modified by the Labor-Management Reporting and Disclosure Act
of 1959.
HECK'S INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
NoTE.-We will notify John Brethauer and Shirley Davis if
presently serving in the Armed Forces of the United States of their
right to full reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training and Service
Act, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
If employees have any questions concerning this notice or com-
pliance with its provisions, they may communicate directly with the
Board's Regional Office, Room 2023, Federal Office Building, 550 Main
Street, Cincinnati, Ohio, Telephone No. 684-3627.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge and an amended charge filed by the above-named labor organiza-
tion on October 30 and November 3, 1964, in Case No. 9-CA-3363, the General
Counsel of the National Labor Relations Board issued his complaint and notice of
hearing dated December 23, 1964. On December 24 a charge was filed in Case No.
9-CA-3415, and an order consolidating the two cases, a complaint in the latter case,
and a new notice of hearing were issued and served on February 17, 1965. The
Respondent filed an answer to each complaint. The complaints allege and the
answers deny that the Respondent has engaged in and is engaging in unfair labor
practices in violation of Section 8(a)(1), (3), and (5) of the National Labor Rela-
tions Act, as amended. Pursuant to notice, a hearing was held in Parkersburg, West
Virginia, on March 16 and 17, 1965, before Trial Examiner C. W. Whittemore.
At the hearing all parties were represented, and were afforded full opportunity to
present evidence pertinent to the issues, to argue orally, and to file briefs. A brief
has been received from the Respondent.
Disposition of the Respondent's motion to dismiss the complaints, upon which
ruling was reserved at the hearing, is made by the following findings, conclusions, and
recommendations.
Upon the entire record thus made, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Heck's, Inc., is a West Virginia corporation with principal office at Nitro, West
Virginia , and is engaged in the retail department store business at various locations
in West Virginia and Kentucky.
During the year preceding issuance of the complaint the Respondent 's gross volume
of sales exceeded $500,000 in value. During the same period its direct inflow of
goods, from points outside West Virginia, exceeded $50,000 in value. The Respond-
ent's Parkersburg, West Virginia, store is the one operation here involved.
The complaints allege, the answer admits, and it is here found that the Respond-
ent is engaged in commerce within the meaning of the Act.
217-919--6 6-v o f 15 6-5 0
772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE CHARGING UNION
Food Store Employees Union, Local #347, Amalgamated Meat Cutters and
Butcher Workmen of North America, AFL-CIO, is a labor organization admitting
to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Setting and major issues
The events from which these consolidated cases stem all occurred within a period
of less than 3 months after efforts at self-organization were begun among the
Respondent 's some 45 employees at its Parkersburg store, early in October 1965.
The alleged violations of the Act included: (1) a refusal to bargain with the
Charging Union although it represented a majority of the employees and despite its
offer to display proof of majority status; (2) the unlawful discharge of four employees
(Noah Eddy on October 31, John Brethauer and Shirley Davis on October 20, and
Ruie Perry on December 19, all in 1964 ); and (3 ) various acts of interference,
restraint , and coercion.
B. Interference , restraint , and coercion
Based upon the detailed and credible testimony of the employees concerned, it is
found that the following acts were engaged in by Darrell Ellis , the store 's hardware
manager, admitted by the Respondent to be an agent of "the Respondent acting
upon its behalf." 1
(I) On October 20 Ellis asked employee Jerry Brethauer "who had signed." The
employee asked what he meant . Ellis replied that he knew a union man had been
at his house and also at the home of Ruie Perry.
(2) About the same date Ellis told the same employee that the Union "wouldn't
go" in this store . The employee asked why Ellis said that if it did, the store would
be moved to Huntington. Ellis also quoted Haddad (the head of the Company) as
saying that after "this whole business was over" he would fire "everybody that had
signed up for the Union."
(3) In the same month Ellis asked employee Terrell if he had signed a union card,
and then asked him to write a letter to Haddad stating that he "wanted out of the
Union."
(4) Also on October 20 Ellis asked employee Spiker if she had ever worked in a
factory where there was a union , and then warned her "it is rough where there is a
union." A few days later he told her he knew of the union meeting held and what
was said by the "lady" there. He then told her that he knew of employees who
"wanted out of the Union" and who were going to write letters to Haddad. Ellis also
declared that there was a "legal " way of keeping a union out , as well as a "dirty"
way, and the "dirty" way would be used if they had to.
(5) About the same date Ellis came to employee Shackleford and asked him if
he had signed a union card . The employee admitted the fact. Upon this Ellis asked
if any employee had contacted him. Shackleford replied in the negative and Ellis
pressed for information as to who did contact him . The employee said Union Rep-
resentative Gunnoe had.
(6) Later the same day Ellis returned to Shackleford and asked if employee John
Brethauer had influenced him "in any way to join the Union." When the employee
said no, Ellis declared that John Brethauer was "already in trouble ." He demanded
to know why he had signed.
(7) Finally, late in October , and after being convinced by Ellis that his "chances
would be better" if he did, Shackleford wrote a letter to Haddad telling him he was
sorry for "getting involved in the union ." Ellis told him , "You won't even advance
[if you are] in the Union."
I conclude and find that the above-described conduct of Ellis was unlawful inter-
ference, restraint , and coercion of employees in the exercise of rights guaranteed by
the Act.
I L I llis was called as a witness by the Respondent , but was not asked concerning the
specific remarks attributed to him by the employees He merely answered in the negative
when asked if he had made , during October 1964, any "threats against employees , promised
them benefits , and interrogated them as to their union activities." Such general denials
have small weight , and plainly are not sufficient to serve as credible refutation of the
forthright and detailed testimony of the employees.
HECK'S, INC. 773
Other unlawful conduct includes:
(1) About October 20 employee Susan Lee, according to her uncontradicted tes-
timony, was called to the office of Billy Hull, then the store manager. Hull asked her
if she had signed a union card. She said she had not. He then asked her if she had
attended a union meeting at the home of Ruie Perry, whose discharge is described
below.
(2) On November 3 Union Representative Gunnoe came into the store as a cus-
tomer. Assistant Manager Copley pointed Gunnoe out to Skaggs, then the store
manager, as "being from the Union." According to his own testimony, Skaggs then
called Haddad, who told him to ask Gunnoe to leave the store. Although it is undis-
puted that Gunnoe entered the store as a customer and spoke to no employee about
anything, Skaggs ordered him from the store, and when Gunnoe objected to such
treatment the manager called the police. Such public treatment of a union represen-
tative, in the presence of employees, was plainly coercive.2
(3) On the same day that Darrell Ellis warned Spiker, as found above, that it was
"rough" where a union represented employees, she was called into the office where
Manager Hull told her he had let employees Brethauer and Davis go because they
were "soliciting" for the Union. He declared that he could fire her, as well, for the
same reason, but had decided not to "fire anybody else." 3 (Two or three days later
he was summarily transferred to another store.)
The conduct of both Skaggs and Hull, described above, constitutes interference,
restraint, and coercion of employees in the exercise of rights guaranteed by Section 7
of the Act.4
C. The discharges
1. John Brethauer and Shirley Davis
These two employees were discharged on the same day, October 20, 1964, by Store
Manager Hull, and for the same claimed reason. Hull said he fired them "for solicit-
ing in the store." He admitted, as a witness, that he took this summary action, not
on the basis of any personal knowledge, but upon information which he took no
trouble to investigate given him by two employees, neither of whom was called to cor-
roborate his claim.
As a witness Davis admitted that she had signed a union card and had attended
union meetings, but flatly and credibly denied that she had ever got any cards signed,
anywhere. Brethauer admitted that he had obtained some signatures to cards in the
store, but there is no evidence that he interfered with anyone's work at any time.
Nor is there credible evidence in the record that any published rule existed in the
store against solicitation. Counsel for the Respondent placed in evidence a printed
placard bearing the legend "No Soliciting Without Permission," which former Man-
ager Skaggs said he had posted in July, and so far as he knew had never been taken
down. Plainly the document placed in evidence had never been "put up," anywhere,
at any time It was clean, unsoiled, and obviously fresh from the printer. Further-
more, in a prehearing affidavit to a Board agent Skaggs admitted that he had stated,
"I never told any employee that he or she would be fired, terminated, let go, or dis-
missed for soliciting in any store that I ever managed." And "I have never directed
any assistant manager to so inform any employee of such." Nor does any such rule
appear in a booklet distributed to all employees which contains the "basic rules and
regulations of the company."
7 As a witness Skaggs said he told Haddad that Gunnoe was "disrupting work." He
made no claim of such disruption while on the witness stand. Indeed it appears
that whatever disruption there may have been was caused by his own unlawful conduct.
3 Hull merely answered in the negative when asked the general question as to whether
he had ever threatened reprisals for engaging in union activity . This geneial denial is
not credited.
* In my opinion , competent evidence does not sustain the allegation of "surveillance"
on the night of November 3. Union Representative Gunnoe's testimony that he was
told by employees Glenn Terrell, Helen Alleman, and Betty Shepard that they saw com-
pany officials Angel and Copley sitting in a car 150 feet from the entrance to the union
hall finds no support in the testimony of these employees Gunnoe admitted that he
could not make them out "too plainly" at the distance of 150 feet, at night. Nor is
there sufficient evidence in the record , in my opinion , that any raises granted in mid-
October 1964 were given for the purpose of discouraging membership in the Union, or
to undermine the union campaign.
774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I am convinced and find that these two employees were discharged, not for violation
of any rule, but to discourage union membership. Such discrimination constituted
interference, restraint, and coercion of employees in the exercise of rights guaranteed
by the-Act.
2. Noah Eddy
This employee, hired the last of September 1964 as a trainee for possible depart-
ment head, was fired on October 31. According to his credible testimony he was
called into Manager Skaggs' office on October 27 and berated for "speaking out against
the company" at a union meeting he had attended a few days before. Skaggs declared
he could call 13 witnesses to prove it, and angrily said that no union would "nego-
tiate with us," referring presumably to the written demand received a few days
earlier by Haddad He declared that he should fire the employee on the spot.
The manager apparently thought better, however, of such an overt violation of the-
Act, and waited until October 31, when he discharged Eddy, giving him as a reason:
"continuous tardiness and unwillingness to work."
As a witness Skaggs said he fired Eddy for tardiness and "personal appearance."
No reliance upon his claim of tardiness can be placed, since in his affidavit to a Board
agent he said that tardiness was not a factor in the dismissal. Furthermore, while on
the witness stand, Skaggs claimed he had warned Eddy in August, and the employee
was not hired until September 30.
I can believe no part of Skaggs' testimony concerning this discharge. He finally
admitted, reluctantly, that he had been told of Eddy's union activities, and I conclude
and find that it was to discourage such activity that Eddy was dismissed.
3 Ruie Perry
Ruie Perry, an employee called a "department head" who earned only $1.40 an
hour, was discharged on December 19, 1964, for the simple and admitted reason that
she sat at a table in a public restaurant, during her supper hour, with Union Represen-
tative Gunnoe
The Respondent admits that not until it received (apparently) the Trial Exam-
iner's Decision a in a case involving another of its stores , had it ever considered
department heads in its stores to be supervisors. Shortly after the issuance of this
decision on December 18, all store department heads were assembled and told that
because of it they would thereafter be management representatives, and must not
engage in any union activities. During her supper hour that evening Perry went to
eat at a restaurant, and sat at a table with Gunnoe. She was seen there by employee
Thomas, who promptly informed the then store manager, one Angel, what she had
seen.
Angel admitted that he fired Perry the next day upon the basis of what he had been
told by informer Thomas.
Even if it be considered that merely because management told her on December 18
that she was a supervisor, she thereby became one , discharging her merely for her
presence at the same table with a union representative in a public restaurant plainly is
repugnant to the purposes of the Act. The real purpose of the discharge, I believe,
was to discourage union membership on the part of other employees , as well as of
Perry, and interfered with, restrained, and coerced employees in the exercise of rights
guaranteed by the Act.
D. The refusal to bargain
During the morning of October 22, 1964, Sherwood Spencer, an officer of the
Union, telephoned to Hull, then the store manager, and asked for recognition and
bargaining, claiming majority status for the Union. Hull said he was being transferred
from this store that day, and suggested that Spencer call Haddad, head of the com-
pany. Spencer was unable to reach Haddad by telephone, and later the same day
sent a registered letter to him, advising him of the Union's majority, requesting "rec-
ognition for bargaining," and offering to supply him with copies of signed application
cards if he doubted the majority claim
Haddad received the demand on October 23, but has never replied to it. On
November 3 Haddad did call Spencer on another matter and when the latter reminded
him of the unanswered request, Haddad brushed it aside by claiming he was too
busy.
The Respondent's answer merely denies the factual allegation of a refusal to bar-
gain. Neither Haddad nor any other company official at the hearing offered any
reason for the failure to respond to the Union's demand.
'Heck's, Inc, d/b/a Heck's Discount Store, 150 NLRB 1565.
HECK'S, INC. 775
The fact of refusal, then, is amply established. Competent documentary evidence,
in the form of authentic signed authorization cards, obtained before the letter of
demand on October 22, establish and it is found that on that date the Union repre-
sented a clear majority of all employees in the appropriate unit alleged in the
,complaint-
All employees of the Respondent at its Parkersburg, West Virginia, store, exclud-
ing all office clerical employees, guards, professional employees, and all super-
visors as defined in the Act.
A list of store employees on the payroll during the week of October 22, prepared
by the Employer, contains a total of 47 names During the hearing it was agreed by
-the parties that two employees on this list should be excluded (Griffin, a guard, and
Newcomer, an office clerical). The total is thus reduced to 45
Counsel for the Respondent at the hearing claimed that certain department heads
should be excluded as supervisors- John McClung, Helen Richards, Betty Shepard,
Noah Eddy, Rudolph Parrish, and Ruie Perry. General Counsel took the contrary
position.
On the basis of the evidence in this record I am unable to find that department heads
at this store, as a class, are supervisors within the meaning of the Act. There is no
credible evidence that they possess, or exercise, any supervisory authority other than
that set out in a booklet containing "basic rules and iegulations" distributed to all
employees by the Company.
Following a description of the manager and assistant manager appears the text:
In each department is an employee who is called a department head. This lady
or gentleman will assist you in learning your duties and will relay to you all com-
pany policies affecting your department Should you have personal problems
requiring time off, or if you desire overtime work, your department head will
clear such matters with the store manager. [Emphasis supplied ]
I find no merit in the claim that the above-named employees should be excluded
from the unit. (As noted heretofore, not until mid-December 1964 did the Respond-
ent itself consider department heads to be supervisors, in another of its stores.)
Nor is theie merit in the same counsel's contention that one Casto should be
excluded because he had been hired only for the Christmas rush Actually Casto was
hired in July 1964, and even in these days of advance sales, there is no credible evi-
,dence that in Parkersburg, West Virginia, the Christmas sales begin in July.
Darrell Ellis, however, the hardware manager, according to his own testimony,
will be excluded as a supervisor within the meaning of the Act. Not only is he con-
ceded to be such by the Respondent, but according to the record he receives a monthly
salary exceeding by $50 that of any other "department head." He admittedly carries
a key to the store.
A total of 33 authentic authorization cards are in evidence. Thirty-three is a
plain majority of 44.
I conclude and find that on October 22, 1964, by virtue of its majority status, the
Charging Union was, and at all times since then has been, the exclusive bargaining
representative of all employees in the above-described appropriate unite
It is further concluded and found that by refusing to bargain with the Union since
October 23, 1964, the Respondent has interfered with, restrained, and coerced employ-
ees in the exercise of rights guaranteed by Section 7 of the Act.
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have
a close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
61 consider immaterial to the issue of majority representation testimony of a few em-
ployees, called by the Respondent, who claimed disaffection with the Union, although
admittedly having signed union cards and never having revoked them One such em-
ployee, Hazel Thomas, has been found to have been the informer in the case of Rule
Perry, and her testimony is unreliable It appears reasonable to believe that whatever
disaffection there may have been was caused by the Respondent's own unfair labor prac-
tices, including Ellis' efforts to get employees to write such letters to Haddad. In any
event, at no time has the Respondent claimed that it was refusing to bargain because of
such disaffection.
776 DECISIONS OF NATIONAL LABOR -RELATIONS BOARD
V.. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices it will be
recommended that it cease and desist therefrom and take certain affirmative action
to effectuate the policies of the Act.
It will be recommended that the Respondent offer to employees Noah Eddy, John
Brethauer , Shirley Davis, and Ruie Perry immediate and full reinstatement to their
former or substantially equivalent positions , without prejudice to their seniority or
other rights and privileges . It will also be recommended that the Respondent make
them whole for any loss of earnings they may have suffered by reason of the dis-
crimination against them , by payment to each of them of a sum of money equal to that
which he or she would have earned as wages from the date of the discrimination
to the date of the offer of reinstatement , less net earnings during said period, and in
a manner prescribed by the Board in F. W. Woohnorth Company, 90 NLRB 289, and
with interest on the backpay due in accordance with Board policy set out in Isis
Plumbing & Heating Co., 138 NLRB 716.
It will also be recommended that, upon request, the Respondent bargain collectively
and in good faith with the Charging Union and , if an understanding is reached,
embody such understanding in a signed agreement.
In view of the serious and extended nature of the Respondent 's unfair labor prac-
tices it will be recommended that it cease and desist from infringing in any manner
upon the rights of employees guaranteed by Section 7 of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Food Store Employees Union, Local # 347, Amalgamated Meat Cutters and
Butcher Workmen of North America , AFL-CIO, is a labor organization within the
meaning of Section 2 (5) of the Act.
2. By discriminating against employees , as described herein, to discourage mem-
bership in and activity on behalf of the above -named labor organization , the Respond-
ent has engaged in and is engaging in unfair labor practices , within. the meaning of
Section 8 (a)(3) of the Act.
3. All employees at the Respondent's Parkersburg , West Virginia , store, excluding
office clerical employees, guards , professional employees , and all supervisors as
defined by the Act, constitute a unit appropriate for purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
. 4. By virtue of Section 9(a) of the Act the above -named labor organization has
been since October 22, 1964, and now is, the exclusive bargaining representative of
all employees in the above -described appropriate unit.
5. By failing and refusing to bargain with the said labor organization the Respond-
ent has engaged in and is engaging in unfair labor practices within the meaning of
Section 8 ( a) (5) of the Act.
6. By interfering with , restraining , and,coercing employees in the exercise of rights'
guaranteed by Section 7 of the Act, the Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
New Haven , Meriden & Bridgeport Electrotypers Union No. 83,
International Stereotypers and Electrotypers Union , AFL-CIO'
and Meredith Printing Company (West Haven Plant ) and New
Haven Typographical Union , No. 47, International Typographi-
cal Union , AFL-CIO. Case No. 1-CD-95. January 10, 1966
DECISION AND ORDER
.Upon a charge filed on January 19; 1965, by Meredith Printing
Company (West Haven plant) (herein referred to as the Company),
156 NLRB No. 76.
.