Heck'S Inc.

National Labor Relations Board - Board Decisions

Sep 21, 1984

272 N.L.R.B. 227 (N.L.R.B. 1984)

HECK'S, INC 227
Heck's, Inc. and Food Store Employees Union,
Local 347, United Food and Commercial Work-
ers International Union, AFL-CIO-CLC. Case
9-CA-20694
21 September 1984
DECISION AND ORDER
BY MEMBERS ZIMMERMAN, HUNTER, AND
DENNIS
On a stipulated record accepted 26 April 1984,
Administrative Law Judge Marion C Ladwig
issued the attached decision on 14 May 1984 The
Respondent filed exceptions
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
The Board has considered the decision and the
record in light of the exceptions and has decided to
affirm the judge's rulings, findings, and conclusions
and to adopt the recommended Order
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Heck's, Inc ,
Nitro, West Virginia, its officers, agents, succes-
sors, and assigns shall take the action set forth in
the Order
DECISION
MARION C LADWIG, Administrative Law Judge Fol-
lowing the February 14, 1984 1 trial in Heck's, Inc , Cases
9-CA-20275, 9-CA-20375, and 9-CA-20437, the Union
filed the charge in this case February 29 and the General
Counsel issued the complaint March 27 The primary
issue (and one of the issues in the earlier proceeding in-
volving other company facilities) is whether the Compa-
ny, the Respondent, unlawfully coerced employees
during union organizing activity by stating in its October
10 letter to them that "Heck's has an absolute right to
see the union cards" they sign, violating Section 8(a)(1)
of the National Labor Relations Act
The General Counsel, Company, and Union have
signed a Stipulation (submitted April 26 with a motion to
accept, which I grant), agreeing to a stipulated record
and also agreeing that if the October 10 letter is found to
violate Section 8(a)(1), "the remedy and the appropriate
notice in the instant case shall be separate and distinct
from the remedy and notice, if any" in the earlier cases
On the stipulated record, and after consideration of the
briefs filed in the earlier proceeding, I make the follow-
ing
' All dates are from October 1983 until April 1984 unless otherwise
indicated
FINDINGS OF FACT
I JURISDICTION
The Company, a West Virginia corporation, operates
retail stores in a nine-state area, annually receiving at its
Nitro, West Virginia warehouse goods valued over
$50,000 directly from outside the State and deriving over
$50,000 in gross revenue The Company admits and I
find that it is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act and
that the Union is a labor organization within the meaning
of Section 2(5) of the Act
II ALLEGED UNFAIR LABOR PRACTICES
A The October 10 letter
About October 10, the Company distributed a letter
(attached to the Stipulation as Exh A) to its employees
"at various stores throughout its multistate chain" The
stores were those where "the Union handbilled or other-
wise attempted to organize" in the latter part of 1983
The one-page letter (written in all capitals) was signed
by Company Chairman Russell Isaacs The letter op-
posed the signing of union cards, stating toward the end
"We feel that a union would be of no advantage to any
of us and it would hurt the business that we all depend
on for our livelihood," and "If anyone should come to
you and ask you to sign a union authorization card, we
are asking you to refuse to sign it"
The middle paragraph of the letter (the capitalization
retained in only the last sentence for emphasis) read
These cards are often obtained by unions by making
false statements or misrepresentations These cards
could be used as evidence with the National Labor
Relations Board to get into a company without an
election The Union is telling you that Heck's will
never see the union cards you sign This is Just not
true In past cases with this Union we have seen
these cards which were shown to us by the NLRB
where the Union claims bargaining rights without
an election HECK'S HAS AN ABSOLUTE
RIGHT TO SEE THE UNION CARDS
The Company argues in its brief that when the sen-
tence, "Heck's has an absolute right to see the union
cards," is "read in the context of the entire paragraph, it
is obvious that what Mr Isaacs is saying in that particu-
lar sentence is that where the union is demanding bar-
gaining rights without an election, Heck's has the right
to see the cards" I disagree That is a paraphrase of two
preceding sentences, "These cards could be used as evi-
dence with the National Labor Relations Board to get
into a company without an election" and "In past cases
with this Union we have seen these cards which were
shown to us by the NLRB where the Union claims bar-
gaining rights without an election" It is clearly not the
meaning of the last, unequivocal statement, that Heck's
"has" the "absolute" right to see the union cards
Even if employees could be expected to ignore the
clear, plain message in the unqualified statement, "Heck's
272 NLRB No 44
228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
has an absolute right to see the union cards," and to ana-
lyze the whole paragraph to derive some limited mean-
ing, this added sentence would still place the confiden-
tiality of their card signing in jeopardy Thus the compa-
ny chairman asserts "The Union is telling you that
Heck's will never see the union cards you sign," and
makes three responses The first is "This is just not true"
The second is that "In past cases with this Union we
have seen these cards which were shown to us by the
NLRB where the Union claims bargaining rights without
an election" Those are complete responses to the pur-
ported union contention that the Company "will never
see the union cards you sign" But then the chairman
adds a third response—without making any reference to
the right the Company "had" in past cases to see the
cards, or to the right it "would have" if the Union
claimed bargaining rights without an election Claiming a
present, unqualified right to see the cards, he adds that
"Heck's has an absolute right to see the union cards"
(emphasis added)
B Concluding Findings
It is well recognized that employees would be coerced
or "chilled" in the exercise of their Section 7 right to
sign union authorization cards if they knew that the em-
ployer had the absolute right to see the cards
In denying an employer access to union authorization
cards under the Freedom of Information Act, 5 U S C §
552, the court held in Committee on Masonic Homes, 556
F 2d 214, 221 (3d Cir 1977)
[I]t is entirely plausible that employees would be
"chilled" when asked to sign a union card if they
knew the employer could see who signed To
order disclosure here would effectively do away
with union cards as they are used now We need
only consider whether employees would be likely
to sign a prominently displayed notice at work,
"Sign up for the union here Organize for better
working conditions and higher wages" Solicitation
of authorization cards plays a vital role in organiza-
tional campaigns, and we cannot envision a work-
able substitute
Furthermore, union elections must be conducted
by secret ballot Whatever reasons and policies lie
behind that would be directly undercut by forcing
employees to acknowledge in public their support
of the union, in order to be given the right to vote
in secret for the union
After quoting this language in Pacific Molasses Co, 577
F 2d 1172, 1182 (5th Cir 1978), the court observed
We agree with the Third Circuit, and feel that
the Freedom of Information Act does not compel
disclosure of these cards We would be naive
to disregard the abuse which could potentially
occur if employers and other employees were
armed with this information The inevitable result
of the availability of this information would be to
chill the right of employees to express their favor-
able union sentiments Such a chilling effect would
undermine the rights guaranteed by the NLRA and,
for all intents and purposes, would make meaning-
less those provisions which guarantee secrecy
in union elections
In Madeira Nursing Center, 615 F 2d 728, 730-731 (6th
Cm 1980), the court cited Masonic Homes and Pacific
Molasses and found
Both the 3d and 5th Circuits have held that union
authorization cards are not discoverable under the
Act
When an employee signs an authorization card
during the initial phase of union organization, he ex-
presses a personal decision to seek the support of a
union in future dealings with his employer Since
the union organization of a company may take the
form of a protracted and bitter struggle over em-
ployee loyalties, an employee may be amply justi-
fied in wishing to protect his prounion declaration
from employer scrutiny
Appellant insists that an employee can have no
expectation of confidentiality when he signs a card
This contention is apparently based on the fact that
a union which holds authorizations from the majori-
ty of a bargaining unit may bypass the election
process by submitting its authorization cards direct-
ly to the employer Appellant's argument ignores an
important distinction An employee may reasonably
feel less vulnerable after he knows his union is
likely to prevail than at the outset of an organiza-
tion campaign when the ultimate result remains un-
certain Indeed, it is in such a case as this one,
where the defeated Union may be unable to give
the support anticipated by its adherents, that em-
ployees who sign authorization cards could be most
justified in seeking to preserve their anonymity
Several cases involve alleged coercion when an em-
ployer refers to this anonymity of card signing being lost
when a union seeks recognition without an election In
NLRB v Finesilver Mfg Co, 400 F 2d 644, 645-646 (5th
Cir 1968), the employer posted a notice, stating that
"The union says the signing of cards will be confiden-
tial," but the truth is that "Any employee who signs a
card for a union may be called upon to testify in open
court under a subpoena," and commenting that "The
best way to avoid this is to stay away from union meet-
ings, and then you can't be forced to sign cards" The
court observed that "we see no reason for informing em-
ployees that they might be required to testify in open
court other than to let them know that the names of
union adherents could be ascertained and appropriate re-
prisals taken " It held that whether or not this and an-
other statement were legally correct, they "have unlaw-
fully coercive implications, especially when considered
in the context of the company's widespread pattern of
antiunion conduct"
In Lundy Packing Co, 223 NLRB 139 (1976), enf
denied in relevant part 549 F 2d 300, 301 (4th Cir 1977),
HECK'S, INC 229
the Board found "there was no reason for informing em-
ployees that they might be required to testify in open
court other than to let them know that the names of
union adherents could be ascertained and appropriate re-
prisals taken" Similarly, except this time with court ap-
proval, the Board in Arrow Automotive Industries, 256
NLRB 1027, 1033-34 (1981), enfd mem 679 F 2d 875
(4th Cir 1982), adopted the administrative law judge's
finding that "Absent any valid reason for repeatedly
informing employees that those employees who sign
union cards could be required to appear in court to testi-
fy about them and occurring in the context of other
unfair labor practices," the vice president's statements in
letters to employees, in the employer's newspaper, and in
a speech "were to discourage employees from signing
union authorization cards," violating Section 8(a)(1)
In Huntington Rubber Go, 260 NLRB 1008 (1982), the
employer's vice president told employees in a meeting
that "if the Union obtained signed cards from over 50
percent of the employees, the Union would take the
cards out in [his] office and lay them on his desk" The
Board adopted the judge's finding that the statement, in
the context of several other unfair labor practices, "con-
veyed a threat to the employees that the identities of
those who signed union cards would be revealed" to the
employer, "followed by appropriate reprisals"
All four of these decisions involved the loss of confi-
dentiality if the union uses the cards to seek bargaining
rights without an election In Finesdver, Lundy, and
Arrow, the employer's statements about card signers
having to appear in court were held to be coercive, and
in Huntington, the statement about the union's laying the
cards on the employer's desk after obtaining a 50-percent
majority was found to be coercive
Here, in contrast, the statement that "Heck's has an
absolute right to see the union cards" is an unequivocal
warning to the employees that they cannot sign union
authorization cards in confidence, even if the cards are
used merely to show sufficient support for a secret
Board election The General Counsel does not allege to
be coercive the two statements in the October 10 letter
about cards being used "to get into a company without
an election" and about the Company seeing the union
cards "where the Union claims bargaining rights without
an election"
I find that this added, last sentence in the quoted para-
graph, that the Company "has an absolute right" to see
the cards, was intended to discourage employees from
signing the union authorization cards by instilling fear of
reprisals I therefore find that the statement tends to
coerce the employees in the exercise of their Section 7
rights, in violation of Section 8(a)(1) of the Act
CONCLUSIONS OF LAW
By informing employees that "Heck's has an absolute
right to see the union cards" to discourage them from
signing union authorization cards by instilling fear of re-
prisals, the Company coerced employees in the exercise
of their Section 7 rights, engaging in unfair labor prac-
tices affecting commerce within the meaning of Section
8(a)(1) and Section 2(6) and (7) of the Act
THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I find it necessary to order it
to cease and desist and to post a notice designed to effec-
tuate the policies of the Act The notice must be posted
at all its stores where the Union handbilled or otherwise
attempted to organize in the latter part of 1983 (except
the Cross Lanes store, involved in the earlier proceed-
ing)
On these findings of fact and conclusions of law and
on the entire stipulated record, I issue the following rec-
ommended2
ORDER
The Respondent, Heck's, Inc , Nitro, West Virginia, its
officers, agents, successors, and assigns, shall
1 Cease and desist from
(a) Discouraging employees from signing union au-
thorization cards by informing them that "Heck's has an
absolute right to see the union cards"
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Post at all its stores indicated in the remedy section
of the decision copies of the attached notice marked
"Appendix " 3 Copies of the notice, on forms provided
by the Regional Director for Region 9, after being
signed by the Respondent's authorized representative,
shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspic-
uous places including all places where notices to employ-
ees are customarily posted Reasonable steps shall be
taken by the Respondent to ensure that the notices are
not altered, defaced, or covered by any other material
(b) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply
2 If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur
poses
3 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading Posted by Order of the Na
tonal Labor Relations Board" shall read 'Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation
al Labor Relations Board
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice
230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT discourage you from signing union au-
thorization cards by claiming that "Heck's has an abso-
lute right to see the union cards."
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
HECK'S, INC.