Heck's, Inc.

National Labor Relations Board - Board Decisions

Jul 1, 1971

191 N.L.R.B. 886 (N.L.R.B. 1971)

886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Heck 's, Inc . and Amalgamated 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
July 1, 1971
SUPPLEMENTAL DECISION AND AMENDED
ORDER
On September 24, 1968, the Board issued its Deci-
sion and Order in this case,' finding that the Respond-
ent had engaged in various unfair labor practices, in-
cluding a refusal to bargain in violation of Section
8(a)(5) and (1) of the Act. The Board ordered the Re-
spondent to bargain with the Union, but found no merit
in the Charging Party's request for additional extraor-
dinary remedies. Thereafter, on May 4, 1970, the Court
of Appeals for the District of Columbia Circuit en-
forced the Board's Order2 against the Respondent, but
remanded the case to the Board for further considera-
tion, in light of the court's decision in TiideeProducts
' of the Union's request for additional relief. The Board,
having accepted the remand, issued a notice to the
parties requesting statements of position. Such state-
ments have been filed by the General Counsel, the
Charging Party, and the Respondent."
The Board has given full consideration to the views
of the court of appeals, as expressed in its opinions in
the instant case, the Tiidee case, and the Ex-011-0
Cases The Board has also considered the parties' state-
ments of position. For reasons more fully set forth
hereinafter, the Board has concluded that it would
effectuate the policies of the Act to give some but not
all of the additional relief requested by the Union.
The Union seeks both monetary and nonmonetary
relief. The monetary relief sought encompasses com-
pensation for employees for loss of collective-bargain-
ing benefits, and reimbursement of the Union for loss
of dues and fees, for organizational costs, and for attor-
ney's fees. The nonmonetary relief which it seeks in-
cludes the sending of notices to the homes of all em-
ployees at all the Company's locations; reading of the
notices by Company President Haddad and Vice Presi-
dent Darnell to employees at all locations; granting the
Union access to bulletin boards and other places where
notices to employees are posted; granting union organ-
172 NLRB No. 255.
Food Store Employees Union, Local 347 v N.L.R.B., 433 F.2d 541.
' International Union ofElectncal, Radio and Machine Workers, AFL-
CIO v. N.L.R.B, 426 F.2d 1243 (C.A.D C.).
4 The Respondent filed a motion for oral argument and the Union filed
a response in opposition to said motion The request for oral argument is
denied as, in our opinion, the record, including the parties ' statements of
position , adequately presents the issues and the positions of the parties
5 International Union, United Automobile, Aerospace and Agricultural
Implement Workers of America, UAW v N.L.R B., 449 F.2d 1046
(C.A.D C.), 449 F.2d 1058 (C A.D C)
191 NLRB No. 146
izers access to store lounges, restaurants, and parking
lots; granting the use of company facilities for a union
meeting at each store on company time; giving the
Union lists of the names and addresses of all the Re-
spondent's employees; and either requiring the Re-
spondent to bargain with the Union now in a company-
wide unit, or requiring the Respondent to bargain
without further Board proceedings in any store unit in
which the Union presents a card majority. The Union
also seeks an order directing the General Counsel to
seek an injunction under Section 10(j) of the Act when-
ever a complaint is issued against the Respondent.
The General Counsel opposes reimbursement of em-
ployees for loss of collective-bargaining benefits, the
award of attorney's fees, a companywide bargaining
order, and an order directing him to seek injunctions
under Section 10(j) of the Act. He took no position
concerning reimbursement of the Union for the loss of
dues and fees and with respect to the reading of notices
to employees by company officials. He generally sup-
ported the Union's other requests for additional relief,
although in some cases with certain reservations and
qualifications.
The Respondent contends that no additional
remedial provisions are warranted.
In the instant case, the Respondent violated Section
8(a)(1) of the Act by conduct which included threats,
interrogations, coercive interviews, and illegal polls.
The Respondent also unlawfully refused to bargain
with the Union as the representative of its employees
at this location in an appropriate unit. Respondent
President Haddad and Vice President Darnell person-
ally participated in some of the conduct which we and
the court of appeals have found violated the Act.
Viewed in isolation, the Respondent's conduct as
found in this case , although serious, is not so ag-
gravated or pervasive as to warrant additional special
remedies. However, as we have had occasion to point
out, in a somewhat different context with respect to this
Respondent,' it is by now clear that Respondent's con-
duct here is but part of a pattern of unlawful antiunion
conduct engaged in by Respondent's top officials
throughout Respondent's entire operations for the pur-
pose of denying to all of its employees the exercise of
those rights guaranteed to the employees by Section 7
of the Act. In such circumstances conduct at a single
store such as this can no longer be viewed in isolation;
Respondent's conduct must, rather, be viewed in its
total context. As so viewed, Respondent's unfair labor
practices are clearly aggravated and pervasive. It is,
accordingly, against this background of companywide
aggravated and pervasive unfair labor practices that we
' See Heck's, Inc., 172 NLRB No. 255.
HECK'S, INC.
consider the Union 's request for additional relief in this
particular case.
1. Initially , we believe it appropriate to comment
concerning the intended scope of our order with respect
to the Respondent 's violations of Section 8(a)(1). In his
decision, which the Board adopted with respect to his
findings of violations of Section 8(a)(1) of the Act, the
Trial Examiner, in the light of Respondent's violations
at various other stores in its chain, Respondent 's post-
ing at all of its stores of telegrams concerning the re-
sults of elections or polls at other stores , and the par-
ticipation by Respondent 's top officials in these unfair
labor practices , concluded that the order should be
broad enough to restrain future violations of Section
8(a)(1) at any and all of the Respondent 's stores. Al-
though the Board modified the Trial Examiner's
findings and conclusions to the extent of finding an
unlawful refusal to bargain that the Trial Examiner did
not find , the Board did not in any respect disagree with
the Trial Examiner 's conclusions that the remedy for
the 8(a)(1) violations should be companywide . Indeed,
the Board specifically adopted that portion of the Trial
Examiner's order which required that the notices be
posted at all of Respondent's stores. It is possible, how-
ever, that the inclusion at the beginning of the Board's
Order of the store location at which these specific un-
fair labor practices occurred may have been interpreted
as a sub silentio rejection of the Trial Examiner's
recommendation with respect to the scope of the order.
It was not so intended , and except as expressly limited
therein , the order hereinafter entered shall apply to all
of Respondent's employees and all of its operations
wherever located.
2. With respect to the nonmonetary aspects of the
requested additional relief , the basic function of an or-
der remedying violations of Section 8(a)(1) is to assure
to employees who, as here , have been subjected to inter-
ference, restraint , and coercion by their Employer with
respect to their right to select their own bargaining
representative , that they have a protected right to en-
gage in such activity, free from any fear of reprisal or
other employer interference , restraint , or coercion. In
the ordinary case, the posting of notices for a prescribed
period is generally deemed sufficient , to dispel the effects
of the unlawful conduct. Here , however , upon recon-
sideration of this question in the light of all the factors
involved , we conclude that the mere posting of notices
by the Respondent ; at its operations is insufficient to
dispel the lingering effects of its widespread and perva-
sive unlawful conduct. We believe, rather , that in order
to dispel fully the effects of such unlawful conduct, it
is necessary that the employees be able to read the
notices fully and carefully , at their leisure, without fear
that their interest in the contents of the notices will be
noted by the Respondent and 'used against them; in
addition, employees ' who are absent during the posting
887
period should also have an opportunity to read the
notices and be fully informed. This can best be accom-
plished by requiring that copies of the posted notices be
mailed to each of the employees at his home.7 In the
circumstances here, the employees, in our opinion, can
be adequately informed concerning the Government's
protection of their Section 7 rights by the mailing and
posting of the notices; we do not believe it necessary
therefore, in this context, that the notices also be read
to the assembled employees.
3. In addition, the full exercise by employees of their
Section 7 rights requires that they be fully informed not
only concerning those rights, but also concerning the
advantages and disadvantages of selecting a particular
labor organization, or any labor organization, as their
bargaining representative. The Respondent has ready
day-to-day access to its employees, and has consistently
used that access to minimize its employees' opportuni-
ties to make an informed decision concerning collec-
tive-bargaining representation. In order that the em-
ployees may have free and ready access to information
concerning all aspects of this question, we believe it is
necessary in the circumstances that the Union be given
reasonable access for a 1-year period to the, Respond-
ent's bulletin boards, and other places where notices to
employees are customarily posted, for the posting of
union notices, bulletins, and other organizational liter-
ature.$ We also conclude that in order to neutralize the
effect of the Respondent's face-to-face restraint and
coercion, it is necessary that the employees have ready
access to union organizers and other officials who can
explain to them the Union's point of view with respect
to organizational activities.
Suggested methods of accomplishing this latter ob-
jective include requiring the Respondent to furnish the
Union with a list of the names and addresses of its
employees, requiring the Respondent to make com-
pany facilities available for employee meetings with
union representatives, and requiring Respondent to
permit nonemployee union organizers to have access to
employees in parking lots, store lounges, and other
places where the Respondent's employees spend their
time when not at, work. We do not believe adoption of
the two latter suggestions would be warranted unless,
as is not established to be the case here, alternative
means of access are clearly unavailable or have been
tried and found wanting.' The requirement that the
Respondent furnish the Union' with lists of names and
addresses of its employees will on the other hand facili-
tate contact between employees and union representa-
' J. P. Stevens & Co., Inc., 171 NLRB No 163, enfd 417 F.2d 533 (C A.
5, 1969), Marlene Industries Corp., 166 NLRB 703, enfd. as modified 406
F.2d 886 (CA. 6, 1969); Loray Corp., 184 NLRB No'. 57.
J. P. Stevens & Co., Inc., supra.
NL.R.B. v. Babcock & Wilcox Company. 351 U.S. 105.
888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tives without necessarily infringing upon the Respond-
ent's right to control the use of its own property.10 We
conclude accordingly, that giving the Union access to
the Respondent's bulletin boards, as aforesaid, and re-
quiring that it be furnished with a list of the employees'
names and addresses, which list shall be kept current
for a 1-year period, will insure that the employees have
the opportunity to become fully informed, in an atmos-
phere free of interference, restraint, or coercion, con-
cerning all matters relevant to their choice of a bargain-,
ing representative."
4. We have given full and careful consideration to the
Union's request for a bargaining order broader than
that previously entered herein, which is applicable only
to the employee unit specifically involved in this case,
and which has been enforced by the court of appeals.
We are not persuaded that such a bargaining order is
warranted in the circumstances here presented.
Initially, we note that there is no claim that the
Union represents a majority of all the Respondent's
employees, or that it represents a majority in any sin-
gle-location unit other than those with respect to which
bargaining orders are already outstanding. Conse-
quently, by its basic position that the Board should
enter a companywide bargaining order, the Union asks
the Board to do something that it has never done
throughout its history: to order bargaining with a union
which has at no time established its majority status in
the unit in which bargaining is requested.
The fact that a specific remedy has not heretofore
been applied in a particular situation during the
Board's more than 35-year history is not, of course, a
reason for not applying it if it is otherwise warranted;
it is , however, reason to examine carefully before apply-
ing it the legal and policy considerations bearing in its
applicability. Although the Respondent's unfair labor
practices have been widespread, aggravated, and perva-
sive, they have not in our opinion been so widespread,
pervasive, or aggravated as to warrant such extraordi-
nary relief as a companywide bargaining order not
based on proof of majority. Indeed, the fact that the
Union has been selected by a majority of the employees
in a number of single-store appropriate units, including
the unit involved in this proceeding, evidences the fact
that the employees have not been wholly precluded
from making their free choice. In these circumstances,
and in view of the additional relief which we have
granted to facilitate the ability of the employees to
make a free and unfettered choice with respect to the
representation question at locations where they are not
now represented, we conclude that there is no warrant
J. P. Stevens & Co., supra.
We deem such access to be necessary to dispel the effects of the
Respondent's conduct in those locations where the Union is the chosen
representative, as in those locations where there is no representative
for a companywide bargaining order such as that re-
quested, assuming arguendo the Board's power to enter
such an order.12
For a somewhat similar reason we reject the proposal
that the Respondent should now be ordered to bargain
at such time in the future when, with respect to any
appropriate single-store unit, it either secures a card
majority or the Respondent becomes lawfully obligated
to bargain with respect to such unit; for we are not now
convinced that at no time in the future will the Re-
spondent's employees be able to make a free choice
with respect to their representatives. Furthermore, we
do not agree with the contention of the General Coun-
sel and the Charging Party that such a procedure as
that proposed would provide speedier relief in appro-
priate cases because it would bypass normal Board
procedures. Unless the parties were in complete agree-
ment with resepct to all matters pertaining to the repre-
sentation issue, the disagreements would have to be
resolved by some tribunal. In the circumstances postu-
lated by this latter proposal, that tribunal would be the
court of appeals acting upon exceptions to a report of
a special master. There would be no guarantee that the
proceedings before the special master would be any
more expeditious than normal proceedings before the
Board; moreover the court of appeals or its appointed
special master would thereby be deprived of the
Board's administrative expertise in the consideration of
such disputed matters.
5. Unlike most of the requests for nonmonetary re-
lief, considered above, which presented questions of
judgment as to the type of remedy that is appropriate
in particular circumstances, the requests for monetary
relief also require, at least in part, consideration of the
Board's power to act. This is particularly true with
respect to the request that the employees be made
whole for loss of collective-bargaining benefits. We
have in this connection fully considered the views of the
court of appeals concerning the Board's power in this
area, as expressed in its decisions in the Tiidee and
Ex-011 -0 cases." With all due respect to these views
of the court, we remain convinced, as we stated in our
decision in Ex-Cell-O," that the Board lacks statutory
authority to grant such relief. We will therefore adhere
to our position in this matter unless and until the Su-
preme Court decides otherwise.
Moreover, assuming arguendo that we possess the
necessary authority, we would nevertheless conclude
that this is not an appropriate case in which to exercise
such authority. In cases decided subsequent to its deci-
11 But see J. P. Stevens & Co., Inc., 157 NLRB 869, 877; compare
NL.R.B v. Gissel Packing Company Inc., 395 U S 575, 612-614
1; See footnotes 3 and 5, supra.
14 Ex-Cell-O Corporation, 185 NLRB No 20 For the reasons stated in
the dissenting opinion in Ex-Cell-O, Member Brown disagrees with this
conclusion, and he would grant the Ex-Cell-O remedy in this case.
HECK'S, INC.
Sion in Tiidee,15 the court has held that Tiidee was
inapplicable where the refusals to bargain rested on
"debatable" issues, in contrast to the issues in Tiidee,
which the court characterized as "patently frivolous."
Here, as the Trial Examiner pointed out, in discussing
the Respondent's contentions that the Union did not
possess a majority in the appropriate unit, the Re-
spondent introduced testimony which if fully credited
and given its broadest possible sweep, would have re-
sulted in the rejection of sufficient cards to have vitiated
the Union's majority claim. Based on his resolutions of
the credibility of the witnesses, the Trial Examiner
found that the Respondent's contentions were without
merit. With this finding we fully agree. As we under-
stand the purport of the court's decisions in Quality
Rubber and Levi Strauss, supra, as explicated and ap-
plied in its decisions in Ex-Cell-O, supra, it is not the
court's view that because a defense is found to be with-
out merit, it must necessarily be found to be "frivo-
lous," As we understand the court's use of "frivolous"
in this context, it refers to contentions which are clearly
meritless on their face; the court did not, as we view its
decisions, intend to label as "frivolous" a defense, the
merit of which in the last analysis rests, as here and in
Quality Rubber and Levi Strauss, upon a Trial Ex-
aminer's resolutions of credibility.
6. The request for reimbursement with respect to lost
-dues and fees also raises statutory questions relating to
the applicability of Section 302, which deals with re-
strictions on payments by employers to employee rep-
resentatives. We do not, however, deem it necessary to
resolve that statutory question for in our opinion there
has been no predicate laid for a conclusion that the
Union in fact has lost any dues or fees for reasons
attributable to the Respondent's conduct. To make
such a finding requires in our opinion a further finding
that had the Respondent not refused to bargain, it
would have entered into a union-security agreement
with the Union which would have required payment of
dues and fees to the Union as a condition of continued
employment. While the execution of such an agreement
is of course a possibility, we cannot conclude that it is
so strong a probability that any loss of dues or fees must
be deemed to 'have resulted from the Respondent's un-
lawful refusal to bargain.
7. Finally, there is the Union's request for reimburse-
ment with respect to' organizational costs and attor-
ney's fees. In considering these questions we are not
unmindful of the probability that the Charging Party
has spent more money on organizational costs and at-
torney's fees than it would have spent had the Respond-
" Steelworkers v N.L.R B. [Quality Rubber Mfg. Co.], 430 F.2d 519
(C.A D.C.); Amalgamated Clothing Workers [Levi Strauss & Co.] v.
N.L.R.B., 441 F.2d 1027 (C.A.D.C., December 15, 1970); see also the
court's June 9, 1971, decision in Ex-Cell-O, fn. 5, supra
889
ent not refused to bargain. It does not necessarily fol-
low however, that the Union is entitled to
reimbursement for such additional costs. In our opin-
ion it would not on balance effectuate the policies of the
Act to require reimbursement with respect to such
costs in the circumstances here.
To determine the appropriateness of these reim-
bursement requests, we must, we believe, consider the
role of a charging party under the statutory scheme in
the light of the basic principles, that Board orders must
be remedial not punitive,16 and collateral losses are not
considered in framing a reimbursement order.17 As the
Supreme Court has stated," the statutory scheme in-
volves an interblending of public and private interests,
and the participation of a charging party in the pro-
ceedings; before the Board and in the courts, can serve
a public as well as its own private interests. Nonethe-
less, it is the Board which has been given primary initial
responsibility to determine and protect the public inter-
est in the elimination of obstructions to commerce re-
sulting from labor disputes. Such protection of the pub-
lic interest as may result from the charging party's
participation in litigation must be regarded, we believe,
as incidental to its efforts to protect its own private
interests. Given this statutory framework, we conclude
that the public interest in allowing the Charging Party
to recover the costs of its participation in this litigation
does not override the general and well-established prin-
ciple that litigation expenses are ordinarily not recover-
able. i9
As we have concluded that it would effectuate the
policies of the Act to require the Respondent to take
certain action in addition to the action previously or-
dered, we shall issue the following amended Order.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board hereby orders that the Respondent, Heck's, Inc.,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Unlawfully interrogating employees concerning
their union membership, sympathies, or activities.
(b) Threatening employees that choice of a union as
their collective-bargaining representative would lead to
the closing of the store.
Republic Steel Corporation v. XL R.B., 311 U.S. 7, 11-12
Gullett Gin Company, Inc. v NL.R.B., 340 U.S. 361, 364
18 Intl. Union, United Automobile, Aerospace & Agricultural Implement
Workers ofAmerica, Local 283 v. Scofield, 382 U.S 205 , 217, at seq.
19 Fleischman Distilling Corp v. Maier Brewing Co., 386 U.S. 714, 717
Compare Newman v PiggiePark Enterprises, 390 U.S. 400, where litigation
expenses were awarded under a statute (42 U.S C. 2000a et seq.) which
places greater reliance on private action for the vmdication of public rights
890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Illegally polling employees in a nonsecret ballot
election to ascertain which employees support the
Union.
(d) Interviewing employees under coercive circum-
stances concerning matters relating to unfair labor
practice charges and objections to an election.
(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 employees in
the following appropriate unit:
All employees of the Respondent's Clarksburg,
West Virigl'nia, store, excluding supervisors,
guards, and professional employees.
(f) In any other manner interfering with, restraining,
or coercing employees in the exercise of the rights guar-
anteed 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 repre-
sentative of all the Respondent's employees in the unit
found to be appropriate and, if an agreement is reached,
embody such understanding in a signed agreement.
(b) Post at each of its retail stores copies of the
attached notice marked "Appendix, 1121 and mail a copy
thereof to each of its employees. Copies of said notice,
on forms provided by the Regional Director for Region
6, after being duly signed by the Respondent's repre-
sentative, shall be posted and mailed immediately upon
receipt thereof, and those posted shall be maintained by
Respondent for 60 consecutive days thereafter, in con-
spicuous 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) Upon request of the Union, made within 1 month
of the date of this Decision, immediately grant the
Union and its representatives reasonable access for a
1-year period to its bulletin boards and all places where
notices to employees are customarily posted.
(d) Upon request of the Union, made within 1 month
of the date of this Decision, make available to the
Union a list of names and addresses of all employees
currently employed and keep such list current for a
period of 1 year thereafter.
(e) Notify the Regional Director for Region 6, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which both sides had the opportunity to
present their evidence, the National Labor Relations
Board has found that we violated the law and has told
us to post this notice about what we are committed to
do.
All our employees have the right to self-organization
to form, join, or assist labor unions, and to bargain
collectively through representatives of their own choos-
ing.
WE WILL NOT threaten to close any store be-
cause our employees select a union to represent
them, or question our employees concerning their
union sympathies, or activities, or membership, or
illegally poll employees in a nonsecret ballot, or
interview employees under coercive circum-
stances.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the exer-
cise 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 Virginia, store.
At the request of that Union we will bargain with
it in good faith with respect to the terms and con-
ditions of employment of the employees in that
store, and we will embody in a signed contract any
agreement reached.
WE WILL mail a copy of this notice to all our
employees.
WE WILL grant the Union reasonable right to
utilize our bulletin boards.
WE WILL, upon request of the Union, immedi-
ately give to the Union a list of names and ad-
dresses of all our employees, and WE WILL keep
the list current for a period of 1 year.
All of our employees are free to become or remain,
or refrain from becoming or remaining, members of the
above-named Union, or any other labor organization.
HECK'S, INC.
(Employer)
'° In the event that this Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board "
Dated By
(Representative) (Title)
HECK'S, INC 891
This is an official notice and must not be defaced by Any questions concerning this notice or compliance
anyone. with its provisions may be directed to the Board's
This notice must remain posted for 60 consecutive Office, 1536 Federal Building, 1000 Liberty Avenue,
days from the date of posting and must not be altered, Pittsburgh, Pennsylvania 15222, Telephone 421-644-
defaced, or covered by any other material. 2977.