Heck's Inc.

National Labor Relations Board - Board Decisions

Dec 1, 1969

179 N.L.R.B. 778 (N.L.R.B. 1969)

778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Heck's Inc. and-Food Store Employees Union, Local
No. 347, Amalgamated Meat Cutters and Butcher
Workmen of North America, AFL-CIO. Cases
9-CA-3828 and 9-CA-4147
December 1, 1969
SUPPLEMENTAL DECISION AND
ORDER
BY MEMBERS BROWN, JENKINS, AND ZAGORIA
On March 18, 1968, the National Labor
Relations Board issued its Decision and Order in the
above-entitled proceeding,' finding that the
Respondent had engaged in and was engaging in
certain unfair labor practices within the meaning of
Section 8(a)(1), (3), and (5) of the National Labor
Relations Act, as amended, and ordering the
Respondent to cease and desist therefrom and to
take certain affirmative action designed to effectuate
the policies of the Act, including bargaining with the
Union. On July 18, 1969, the United States Court
of Appeals for the District of Columbia Circuit
entered its order in these cases,2 enforcing the
Board 's findings that Respondent had violated
Section 8(a)(1) and (3) of the Act and affirming the
Board's factual finding that the Union, on January
31, 1966, possessed valid designation cards from a
majority of the employees in the unit. However, the
Court remanded to the Board for further
consideration the Board's order to bargain in the
light of the guidelines laid down by the Supreme
Court's intervening decision in N.L.R.B. v. Gissel
Packing Company, 395 U.S. 575.
While affirming the Board's finding that the
Respondent violated Section 8(a)(1) of the Act by
promulgating and maintaining an illegal
no-solicitation and no distribution rule, the Court
also remanded this aspect of the case to the Board
for a reexamination of the scope of its remedial
order in view of an ambiguity found by the Court in
connection with the right of the Respondent to
proscribe union solicitation and distribution on its
parking lot.
Thereafter, the Board, on August 1, 1969, issued
a notice permitting the parties to file statements of
position with respect to the application of Gissel
Packing , supra , to this proceeding. Subsequently,
the Respondent, the Charging Party, and the
General Counsel filed statements in support of their
respective positions.3
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
l70 NLRB No. 53.
'Food Store Employees Union . Local 347 v N L.R.B.; N.L R B v
Heck 's. Inc.. 390 F .2d 655 (C.A.D.C )
'Respondent 's statement was in the nature of a request for oral
argument which is hereby denied inasmuch as the record and the
statements of position adequately present the issues and positions of the
parties.
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Court found "overwhelming evidence in the
record" to support the Board's findings that the
Respondent violated Section 8(a)(1) by interrogating
and threatening employees; creating the impression
of, and actually engaging in, surveillance; seeking to
induce employees to inform the Respondent of their
fellow employees union activities; and, promulgating
and maintaining a no-solicitation and no distribution
rule that illegally restricted the employees union
activity. The Court also found the record evidence
supported the Board's findings that three employees
were discharged and an employee transferred for
union activity, all in violation of Section 8(a)(3).
The Court of Appeals also accepted the Board's
finding, that the Union on January 31, 1966,
possessed valid authorization cards from 23
employees out of an appropriate unit of 41, and had
requested recognition from the Respondent. Upon
the basis of the Respondent's admitted refusal to
extend recognition to the Union, the Board found as
had the Trial Examiner that the Respondent in the
absence of a good-faith doubt violated Section
8(a)(5) by refusing to recognize and bargain with the
Union.
In view of the standards set forth in the Supreme
Court's opinion in Gissel, we find that by refusing to
bargain with the Union and by engaging in a series
of unfair labor practices to undermine the Union's
majority status the Respondent violated Section
8(a)(5). The coercive effects of Respondent's unfair
labor practices cannot be eliminated or neutralized
by traditional remedies, and were of such a nature
as to make a fair election doubtful, if not
impossible. In these circumstances, the purposes of
the Act can better be effectuated by reliance on the
employees' desires as expressed by signed
authorization cards than on an election. Therefore,
the bargaining order previously issued to remedy the
Employer's unfair labor practices is appropriate to
remedy its violations of Section 8(a)(5) and (1) of
the Act and we shall affirm it.
As previously noted, the Court also remanded to
the Board for the purposes of reexamination the
scope of our remedial order with regard to the
Company's right to prohibit solicitation and
distribution on behalf of the Union in the
Company's parking lot by employees during their
non-working time. It appears that our remedial
order created an ambiguity as to whether employees
were guaranteed the right of solicitation and
distribution during nonworking time on the
Company's parking lot. Accordingly, in accordance
with well established law guaranting employees the
right to engage in such solicitation and distribution
we shall correct our original remedial order and
Appendix.
179 NLRB No. 132
HECK 'S INC. 779
SUPPLEMENTAL ORDER
In view of the foregoing , and on the basis of the
record as a whole , the National Labor Relations
Board reaffirms its Decision and Order of March
18, 1968 , as amended below.
Section ( f) of our order is deleted and the
following is substituted therefor:
"Promulgating , maintaining , or enforcing any rule
prohibiting employees from engaging in union
solicitation or from distributing union literature in
nonselling areas of its premises during their
nonworking time."
The notice attached to the Trial Examiner's
Decision, marked Appendix A, as previously
amended , is further amended , by substituting for the
fourth and fifth substantive paragraphs the
following:
WE WILL NOT prohibit you from soliciting for a
Union in nonselling areas including the parking
lot or lots of the Company store or premises
during your nonworking time.
WE WILL NOT prohibit you from passing out or
receiving union literature in nonselling areas,
including the parking lot or lots of the Company's
store or premises during your nonworking time.