Heck'S Inc.

National Labor Relations Board - Board Decisions

Nov 29, 1985

277 N.L.R.B. 916 (N.L.R.B. 1985)

916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Heck's Inc . and Dorothy B. Stulberg , Esq. Case 10-
CA-20230
29 November 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND BABSON
On 28 June 1985 Administrative Law Judge
Philip P. McLeod issued the attached decision. The
General Counsel and the Respondent filed excep-
tions and supporting briefs.
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 briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions as modified and to adopt the recom-
mended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Heck's Inc.,
Oak Ridge, Tennessee, its officers, agents, succes-
sors, and assigns, shall take the action set forth in
the Order.
i The judge erroneously found that Supervisor Blalock did not cor-
roborate employee Jackson's testimony that department managers were
instructed to repeat threatening statements to employees, and concluded
that such lack of corroboration tended to weaken the General Counsel's
case with respect to the Respondent's motive for discharging Blalock.
We nevertheless conclude that there is insufficient evidence to establish
that Blalock was discharged for refusing to commit unfair labor practices.
Parker-Robb Chevrolet, 262 NLRB 402 (1982).
Ann Leslie Unger, Esq., for the General Counsel.
Dorothy B. Stulberg, Esq., of Oak Ridge, Tennessee, ap-
pearing on behalf of Vonnie Blalock and Kathleen
Jackson.
Fred F. Holroyd, Esq., of Charleston, West Virginia, for
the Respondent.
DECISION
STATEMENT OF THE CASE
PHILIP P. MCLEOD, Administrative Law Judge. This
case was tried before me on March 20, 1985, in Oak
Ridge, Tennessee. It originated from a charge filed on
May 25, 1984, by Dorothy B. Stulberg, Esq. on behalf of
Vonnie Blalock and Kathleen Jackson against Heck's
Inc. (Respondent).
On January 30, 1985, a complaint and notice of hear-
ing issued alleging, inter alia, that Respondent interrogat-
ed employees concerning their union activities; threat-
ened employees that it would close its Oak Ridge, Ten-
nessee store if employees engaged in activities on behalf
of Retail Clerks Union, Local 1557, United Food and
Commercial Workers International Union, AFL-CIO-
CLC; threatened employees with discharge for support-
ing the Union; threatened employees that it would be
futile to select the Union as their collective-bargaining
representative because Respondent would never sign a
collective-bargaining agreement with the Union; and so-
licited employees to solicit other employees to withdraw
their support from the Union. The complaint further al-
leges that Respondent violated Section 8(a)(1) and (3) of
the Act by discharging employees Vonnie Blalock and
Kathleen Jackson because of their support for the Union.
The complaint alleges in the alternative that if Jackson
and Blalock are supervisors within the meaning of the
Act, Respondent unlawfully discharged them because
they refused to commit unfair labor practices as directed
by Respondent. The complaint also contains the alterna-
tive allegation that in the event Blalock and Jackson are
supervisors, Respondent engaged in various unfair labor
practices by Jackson and Blalock making certain state-
ments to bargaining unit employees.
In its answer to the complaint, Respondent admitted
certain allegations, including the filing and serving of the
charge, its status as an employer within the meaning of
the Act, the status of the Union as a labor organization
within the meaning of the Act, and the status of various
individuals as supervisors and agents of the employer
within the meaning of Section 2(11) of the Act. Re-
spondent denied having engaged in any conduct which
would constitute an unfair labor practice.
At the trial, all parties were represented and afforded
full opportunity to be heard, to examine and cross-exam-
ine witnesses, and to introduce evidence." Following the
close of the trial, counsel for General Counsel and Re-
spondent filed timely briefs with me, which have been
considered.
On the entire record in this case and from my observa-
tion of the witnesses, I make the following
FINDINGS OF FACT
1. JURISDICTION
Heck's Inc. is a West Virginia corporation engaged in
the retail sale of general merchandise. Two of its stores
are located in Oak Ridge and Oliver Springs, Tennessee.
During the past 12 months, which period is representa-
tive of all times material herein, Respondent received
gross revenues in excess of $500,000 and, during the
same period, purchased and received at these stores,
goods and products valued in excess of $50,000 directly
from suppliers located outside the State of Tennessee.
Respondent is, and has been at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
I shall grant counsel for General Counsel's motion to correct Re-1
spondent's exhibit file by removing exhibits 4 and 5 and placing them in a
rejected exhibit file, as I ordered be done at the trial The court reporter
has inadvertently placed them in a file with other Respondent exhibits
which I received into the record This advertent error is corrected ac-
cordingly.
277 NLRB No. 98
HECK'S INC. 917
H. LABOR ORGANIZATION C. The Duties of Department Heads/Department
Retail Clerks Union, Local 1557, United Food and
Commercial Workers International Union, AFL-CIO-
CLC is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
Respondent operates 125 stores located throughout
nine states, including Ohio, Kentucky, West Virginia,
Virginia, Pennsylvania, Maryland, Indiana, North Caroli-
na, and Tennessee in which it sells general retail mer-
chandise.
During January 1984,2 the Union began an organizing
campaign among employees at Respondent's Oak Ridge
and Oliver Springs, Tennessee stores. On February 21,
the Union filed a petition in Case 10-RC-12936 seeking
to represent employees at those facilities. Kathleen Jack-
son and Vonnie Blalock worked for Respondent as de-
partment heads at the Oak Ridge, Tennessee store. De-
partment heads were excluded from the appropriate bar-
gaining unit by stipulation of the parties. On March 21,
Respondent discharged Jackson and Blalock. On April
19, an election was conducted among employees at the
Oak Ridge and Oliver Springs stores. The Union failed
to receive a majority of the ballots in that election.
B, Employment History of Jackson and Blalock
Kathleen Jackson first began to work for Respondent
in September 1979 at its Oliver Springs store as a sales
clerk in the clothing department. She continued working
at that store until June 1983 when Respondent completed
a new store in Oak Ridge. At that time, Jackson trans-
ferred to the Oak Ridge store.
Vonnie Blalock began to work for Respondent in No-
vember 1979, also at the Oliver Springs store. Blalock
began as a sales clerk in the jewelry department, and she
also worked in the office. Blalock, like Jackson, trans-
ferred to the Oak Ridge store in June 1983.
The Oak Ridge store opened for business in late July
1983. From then until November 1983, employees
worked under the overall supervision of a store manager-
and two or three assistant store managers. In November
1983, Respondent named seven or eight individuals to fill
positions as department heads. Jackson was appointed
department head in the toy department. Blalock was ap-
pointed department head at the service desk and over the
cash registers. In addition to the store manager, two or
three assistant store managers, and seven or eight depart-
ment heads, Respondent employs approximately 30 em-
ployees at the Oak Ridge facility. At the time they were
promoted to the position of department head at the Oak
Ridge facility, Jackson received a raise from $4.25 per
hour to $4.73 and Blalock received a raise from $4.10 per
hour to $4.73. In January 1984, the title "department
head" was changed to "department manager," but there
was no change in the job duties of these individuals.
2 All dates here refer to 1984 unless otherwise indicated
Managers
Kathleen Jackson and Vonnie Blalock both testified
regarding their individual duties and authority as depart-
ment managers in Respondent's Oak Ridge store. James
Doss, who is vice president in charge of personnel and
who is located at Respondent's corporate headquarters in
Charleston, West Virginia, testified on behalf of Re-
spondent regarding the duties and authority of depart-
ment managers throughout the corporate chain of stores.
Jackson, who is the department manager of the toy de-
partment, testified that her primary duties were to check
in merchandise, check pricing of merchandise, check
shelves and keep them adequately stocked, keep the de-
partment clean and neat, and do certain recordkeeping.
Jackson testified that from November 1983 to January
1984, two employees worked under her in the toy de-
partment. With regard to these employees, Jackson's
duties included telling them what stock to put out on the
shelves and directing them to price the stock as neces-
sary. She also directed them when and how to keep
shelves orderly and directed them to sweep the floors in
the department when necessary. As a department manag-
er, Jackson made out a work schedule for these employ-
ees which contained work assignments each employee
was expected to complete that day. These work assign-
ment sheets were then put on a clipboard and hung for
employees to consult in order to know what they were
expected to do that day. Part of Jackson's duties includ-
ed checking on the employees during the course of the
day to see that they were doing the work which she had
assigned to them. Jackson also admitted on cross-exami-
nation, albeit somewhat reluctantly, that as department
manager she did participate in scheduling these employ-
ees' days on, days off, starting times, and quitting times.
As department manager, Jackson had no authority to
hire, fire, grant time off, or discipline employees. These
actions were solely within the authoril y of the store
manager. Jackson did have the authority to recommend
such action, but never did so. From this record, there is
inadequate evidence from which to conclude whether
Jackson's recommendation would have been effective if
she had made one.
According to Jackson, she spent almost all of her time
ordering, checking in, and stocking merchandise. Jackson
worked alongside the two other employees in her depart-
ment. Jackson had no access to confidential information
such as records reflecting the dollar volume of sales in
her department. Her access to records was limited to
routine matters such as the'number of units of a particu-
lar item which were expected to be stocked.
As department manager, Jackson held `weekly meet-
ings with employees in her department as a part of Re-
spondent's "employee involvement program." The pur-
pose of these meetings was to accumulate suggestions
from employees about improvements that might be made
in the store or in how the store was run. According to
Jackson's uncontradicted testimony, her role during these
meetings was solely to accumulate and collect the sug-
gestions , and then to forward them to Respondent's cor-
918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
porate headquarters. She played no role in assessing or
implementing the suggestions.
On cross-examination, Jackson admitted attending reg-
ular meetings of department managers. According to
Jackson , at these meetings the department managers
would discuss among themselves advertisements for up-
coming sales and levels of-merchandise to be ordered.
Doss, who I credit in this respect, testified that at these
department manager meetings, 20 to 25 percent of the
meetings was usually devoted to discussing personnel
problems.
The area over which Blalock acted as department
manager, was considerably larger than that of Jackson.
Blalock's area encompassed the office, the cash registers,
and the service desk. Between 7 and 10 employees
worked under Blalock's direction. It is apparent from
Blalock's testimony on cross-examination that she regu-
larly delegated and assigned work to these employees
using her own judgment. Part of Blalock's duties was to
check on the work of cashiers to see that they were
properly maintaining the area around their cash registers.
Blalock also trained employees.
If cashiers encountered a problem, they would come
to Blalock. Blalock testified that this was not unusual
and that she was always able to handle the situations her-
self without having to seek higher management. Part of
Blalock's responsibilities included determining the
number of cashiers which were necessary at any given
time. Blalock could determine if cashiers were available
to work in other departments. When she felt there was
an excess of cashiers, Blalock would then check with an
assistant manager to determine to which department the
cashier should be sent.
Blalock, like Jackson, had no authority to hire, fire,
grant time off, or discipline employees. She, like Jackson,
could recommend such action to the store manager, but
never did. There is insufficient evidence from which to
determine whether her recommendations might have
been effective if made.
Blalock admitted that when they became department
managers , employees had to sign a statement agreeing
not to discuss their wages with other employees. Blalock
and Jackson also admitted, albeit reluctantly, that in Jan-
uary 1984 each of them received a "Supervisory Associ-
ate Handbook" for which they were required to sign a
receipt. This receipt states in part, "I understand as a su-
pervisor, that my conduct is expected to set an example
for non-supervisory employees and other supervisors."
Both Jackson and Blalock claimed they did not read this
receipt in its entirety before signing it. I discredit both of
them in this regard just as I discredit both of their claims
that they did not consider themselves to be supervisors.
Department managers enjoyed certain, albeit limited,
benefits and privileges not accorded to rank-and-file em-
ployees. More specifically, department managers general-
ly worked a daytime schedule from 9:30 a.m. until 5 p.m.
Only infrequently were they called upon to work eve-
nings or weekends Department managers also received
preference in scheduling vacations. Department manag-
ers received 3 paid sick leave days a year, while rank-
and-file employees received none.
Doss testified that the authority of department manag-
ers was the same in all of Respondent's 125 stores. I find
this hard to believe, particularly since the authority of
Jackson and Blalock differed somewhat within a single
store due to the differences between the areas to which
they were assigned. I do not credit Doss' assertion that
department managers had the authority to discipline em-
ployees. After initially making this claim, Doss later tes-
tified that department managers had the authority to go
to the store manager if an employee was not doing their
job. The latter testimony is consistent with that of Jack-
son and Blalock, and I find that was the extent of their
authority. Nor-do I credit Doss that department manag-
ers had the authority to move employees from one de-
partment to another. After first making this claim, Doss
later testified that department managers had the author-
ity to go to the store manager if they needed additional
help in their department. I find that Blalock, whose testi-
mony has already been recited, accurately described the
limits of her authority to transfer employees between de-
partments. Doss testified that department managers
scheduled the breaks and lunch hours of employees
working in their departments. This testimony tends to be
consistent with that of Jackson and Blalock, and I find it
to be accurate. I do not credit Doss, however, that de-
partment managers have authority to schedule overtime
for employees without consulting with the store manag-
er. Nor do I credit Doss that department managers are
the individuals to whom employees report when request-
ing time off or that department managers have the au-
thority to grant or deny such requests independently.
Doss struck me as exaggerating the authority of depart-
ment managers in these areas.
Section 2(11) of the Act defines a supervisor as being
"any individual having authority, in the interest of the
employer, to hire, transfer, suspend, lay off, recall, pro-
mote, discharge , assign , reward , or discipline other em-
ployees, or responsibly to direct them, or to adjust their
grievances, or effectively to recommend such action
. ... It is well settled that to be a supervisor, it is not
necessary that an individual possess all of these enumer-
ated powers. Rather, possession of any one of them is
sufficient to confer supervisory status provided that the
individual exercises independent judgment on behalf of
management in exercising such authority. See Hydro
Conduit Corp, 254 NLRB 433, 436-437 (1981). It has has
been recognized that investing someone with a supervi-
sory or managerial title does not make them a supervisor
within the meaning of the Act. Rather, in order to be
found a supervisor, one must actually exercise one of the
enumerated powers of Section 2(11) over particular em-
ployees See Magnolia Manor Nursing Home, 260 NLRB
377, 385 (1982). Bearing these principles in mind, I find
that as a general proposition department managers in Re-
spondent's Oak Ridge, Tennessee store are supervisors
within the meaning of the Act. More specifically, I find
that throughout all times relevant to this case, Vonnie
Blalock exercised supervisory authority and was a super-
visor within the meaning of the Act. I also find, howev-
er, that while Kathleen Jackson may have been a super-
visor during the months of November and December
HECK'S INC.
1983 and January 1984, she exercised no supervisory au-
thority and was not a supervisor within the meaning of
the Act during February or March 1984.
I find it unnecessary to discuss in any detail the duties
of department managers which do not evidence supervi-
sory authority. There are, however, certain duties per-
formed by department managers which I find are indicia
of supervisory authority. In their order of significance,
these duties are: (1) Department managers assign and del-
egate work to employees using their own judgment.
They also follow up to see to it that work assigned is in
fact completed. (2) Department managers participate in
scheduling starting and quitting times, workdays, and va-
cation periods for employees in their departments. They
also determine when employees will take rest breaks and
lunchbreaks. (3) Department managers participate in reg,
ular meetings which are devoted in significant part, i.e.,
20 to 25 percent, to discussing personnel problems. (4)
Department managers train new employees. I have pur-
posely placed these in descending order of significance. I
do not believe that either of the last two of these four
indicia, either standing alone or in conjunction with one
another, are sufficient to make department managers su-
pervisors within the meaning of the Act. It is not unusual
for more experienced employees to be used in training
new employees, and this duty alone is not sufficient to
cloak someone with supervisory authority within the
meaning of the Act. Further, it is clear that the vast ma-
jority of time spent in department manager meetings, i.e.,
75 percent to 80 percent, is devoted to clearly nonsuper-
visory matters such as discussing ads or the display of
merchandise. The assignment of work and the authority
to responsibly direct other employees, however, are both
expressly set forth in Section 2(11) of the Act as being
sufficient to make one a statutory supervisor. Scheduling
employees to work, determining when employees will
take breaks, and, most importantly, assigning and dele-
gating work to employees fall squarely within the statu-
tory definition of a supervisor. Throughout the period
relevant to this case, Vonnie Blalock exercised such au-
thority over a group of 7 to 10 employees. Accordingly,
I find that Blalock was a supervisor within the meaning
of Section 2(11) of the Act.
During November and December 1983 and January
1984, Kathleen Jackson exercised all four indicia of su-
pervisory authority enumerated above over two employ-
ees in the toy department. During those months, Jackson
functioned as a supervisor within the meaning of the
Act. According to Jackson's uncontradicted testimony,
during January 1984 these two employees stopped work-
ing in the toy department, which is a relatively small de-
partment in comparison to other departments. At that
time, Jackson was told by Store Manager Doug Green
that because the toy department was small, Jackson did
not need help in that department except during the
Christmas season . After that, Jackson worked in the toy
department alone. There is no evidence that after the
two employees were taken out of the toy department,
Jackson exercised supervisory authority over any other
employee. During February and March 1984, there were
no employees in the toy department for whom Jackson
scheduled work or breaks. There was no employee to
919
whom she assigned or delegated work. Accordingly, I
find that during February and March 19533, regardless of
the job title she might have carried, Jackson in fact was
not a supervisor within the meaning of the Act.
D. Respondent's Antiunion Campaign
Jackson and Blalock both testified that during Febru-
ary and March 1984 as the union campaign progressed,
meetings of department managers became more and
more frequent. By the time they were discharged on
March 21, these meetings were being held almost daily.
Department manager meetings during this period were
usually attended by Corporate President Ray Darnell,
Vice President Daryl Elam, District Manager Rolley,
Store Manager Doug Green, and Assistant Store Manag-
ers Borders, Reed, and Mobeley. Some meetings were
also attended by Vice President in Charge of Personnel
James Doss, Ropecki, whose position is not disclosed,
and Sommerfield, a labor relations consultant.
Kathleen Jackson testified that at these meetings, Dar-
nell told the department managers Heck's would not
have a union, did not need one, and would not sign a
contract with a union. Darnell stated that Respondent
would close the Oak Ridge store before they would have
a union represent employees. Darnell then told the de-
partment managers that if any of them had signed a
union card and would like to get it back, to tell him and
he would get it back for them. Someone in the audience
suggested that people would be afraid to tell them if they
signed a card. Darnell replied that they could just give
him a note. The person suggested that they would also
be afraid to do that. Darnell then stated, "Well, it don't
make any difference, next Friday we are going to meet
with the Union anyway and compare union cards to the
payroll."
Darnell told the department managers that if any em-
ployees went on strike and walked the picket line, they
would be terminated, and people would be hired in their
place. Darnell said he would not have a union represent-
ing employees and he would fire his own mother before
he would let a union come in.
Counsel for the General Counsel's alternative theory
in this case is that if Jackson and Blalock are found to be
supervisors, evidence will show they were discharged
for refusing to commit unfair labor practices. In Jack-
son's original description of this meeting with Darnell,
Jackson did not say one word about Darnell asking the
department heads to commit unfair labor practices. Only
later, when I pointed this out to counsel for the General
Counsel because one of her questions assumed this fact
which was not yet in evidence, did counsel for the Gen-
eral Counsel then go back and draw from the witness the
testimony that Darnell told department heads "to go out
and talk to the employees and tell them that . . . he
would not sign a contract and he would not let a union
in, he would close the doors." Jackson's testimony is un-
contradicted, and it is credited. Nevertheless, the leading
nature of counsel for the General Counsel's questions
which were necessary to elicit this testimony tends to di-
minish the viability of the General Counsel's theory. This
is discussed in greater detail below.
920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Much of Blalock's testimony repeated that of Jackson
regarding the statements made by Darnell to department
managers . Blalock, like Jackson, testified that Darnell
stated he would -never sign a contract with the Union
even if it was voted in, that he would close the doors
before he would allow a union to represent the employ-
ees, and that he would fire his own mother if it would
keep the Union out of Heck's. In a somewhat different
version from, Jackson, Blalock testified that Darnell
stated department managers could tell employees that if
they signed a union card, they could withdraw it, and
employees could request it be sent back to them or
stricken from the list of card signers. Blalock, like Jack-
son, testified that Darnell stated he could find out who
signed cards on behalf of the Union. Blalock also testi-
fied that Darnell told department managers they would
not be able to vote in the Board-conducted election. One
of the department managers , other than Jackson or Bla-
lock, asked Darnell if they could not vote since they still
punched a timeclock like rank-and-file employees. Dar-
nell responded that it had been settled, and department
managers were not able to vote. Blalock testified that
Darnell told the department managers to go out and find
out what they could, to find out if anyone had been sign-
ing union cards, and if they had been attending union
meetings . Blalock, unlike Jackson, did not testify that
Darnell told the department managers to tell employees
he would not let a union represent employees or sign a
contract with a union, or that he would close the doors
of the store before doing so. As I have already indicated,
Jackson's testimony is credited. Nevertheless, I take into
account this difference in their testimony when analyzing
the motive for Respondent discharging Blalock and Jack-
son.
Jackson testified that 2 days after this meeting with
Darnell, she had occasion to speak with sales clerks
Teresa Duncan and Midge Adcocks about the meeting
with Darnell. Duncan asked Jackson if what Darnell had
told them was true. Jackson asked Duncan what it was
that Darnell had said. Duncan then told Jackson that
Darnell had had a meeting with some of the employees
in the store and had told them that they did not need a
union , that they would not have one. that he would not
sign a contract with the Union, that he would close the
doors, and that if anybody walked a picket line, they
would be terminated. Jackson replied to Duncan, "Well
you heard it for yourself, that is what he said." Duncan
or Adcocks then asked Jackson, "Can he do that?" Jack-
son replied, "I don't know, you will have to ask him."
On cross-examination, Jackson added that in response to
Duncan's question , Jackson told Duncan and Adcocks
that what Darnell had told them at the meeting, he had
also told the department managers to tell employees on
their own.
Blalock testified that after the meeting between Dar-
nell and department managers described above, Blalock
spoke to cashiers Vivian Bargus, Lauren Hunnicutt, and
Jeffrey Huckabee. One of these employees asked Blalock
what went on in the meeting with Darnell. Blalock an-
swered, "This is exactly what Ray Darnell told me to
tell you" and she then proceeded to tell them Darnell
said there would not be a union , that he would not sign a discharged and replaced by Gardner
contract, and he would close the store if necessary. Bla-
lock also stated that Darnell said that if employees
walked a picket line and did not come to work, they
would be fired. One of these three employees then asked
Blalock if Darnell could do these things. Blalock re-
sponded that Darnell was president of the Company.
About March 15, Jackson and Blalock both received
letters from the Union which informed them that as su-
pervisors of Respondent, certain conduct violated the
National Labor Relations Act. This letter enumerated
eight specific kinds of conduct which the Union stated
would violate the Act. The letter stated that its purpose
was "to help prevent violations of the law by explaining
in general terms some of the things which have been
ruled illegal for supervisors to do during the course of an
organizing drive."
After receiving copies of this letter, Jackson and Bla-
lock went together to talk to Store Manager Gardner.3
Jackson and Blalock showed Gardner the letter, told
Gardner that they had done a number of things which
the letter said they were not supposed to do, and in-
formed Gardner they were concerned they might be
held personally liable in some way. Jackson and Blalock
asked Gardner what they should do. Gardner told them
to "lay low" as testified to by Jackson or to "stay cool"
as testified to by Blalock. Gardner told them that Dar-
nell would be coming to the store in the next few days
and that he would be able to tell them what to do.
On March 19, 20, and 21, Darnell did come to the Oak
Ridge store along with Elam and Rolley. Jackson and
Blalock never spoke to Darnell personally about the
letter on any of those 3 days.
On March 19, Elam met privately with Blalock. Elam
told Blalock that Respondent had been considering creat-
ing a new position to be called floor supervisor. Several
months before this, Assistant Store Manager Bob Bor-
ders told Blalock that Respondent was thinking about
creating such a position and that he was going to recom-
mend Blalock for the job. Elam told Blalock that she
was the kind of person whom Respondent wanted, for
the job, that she was responsible and worked well with
people, and that she had been selected for the job at the
Oak Ridge store.
On March 20, a meeting of department managers from
the Oak Ridge and Oliver Springs stores was held at the
Oak Ridge Holiday Inn. Also in attendance at this meet-
ing were Darnell, Ropecki, Elam, Rolley, and Sommer-
field. The meeting lasted almost 4 hours. According ,to
both Jackson and Blalock, who I credit, Darnell again
addressed department managers and told them that Re-
spondent was against the Union, that Respondent was
not going to sign a contract with the Union, that Re-
spondent would close its doors before it allowed employ-
ees to be represented by a union, and that any employee
who walked a picket line and did not come to work
would be fired. After Darnell was finished speaking, one
of the department heads brought up the letter which de-
partment heads had received from the Union. According
3 In late February or early March. Store Manager Doug Green was
HECK'S INC. 921
to Blalock, "Some department heads" expressed concern
about the letter. It was neither Jackson nor Blalock,
however, who brought up the subject of the letter or ex-
pressed concern. Whoever it was that brought up the
subject of the letter asked Darnell if department manag-
ers could be held personally liable for what they had
been saying to employees about the Union. Darnell said
no, that department managers should not worry about
that, and that Heck's would take full responsibility. Dar-
nell then said that the department managers would not
have to worry about it anyway, that it was just simply a
legal matter, and that he would handle it. Darnell stated
that he had been in similar situations before and he just
took decisions finding him guilty of unfair labor practices
and stuck them on a nail on his wall. Darnell then intro-
duced Sommerfield. Darnell stated that Sommerfield
would be telling the department managers about the
Union and how they could stop the Union through legal
means.
Sommerfield then took over the meeting. Using vari-
ous printed materials and handouts, Sommerfield dis-
cussed with the department managers various fact situa-
tiions to determine if certain actions were legal or illegal.
Each department head received a booklet describing do's
and don'ts of proper behavior. I credit Doss that Darnell
told department managers as supervisors, he expected
them to be loyal to Respondent and support the Compa-
ny's position. I do not credit Doss that Darnell told de-
partment managers he expected them not to get the
Company in trouble. I find Doss' claim to be totally in-
consistent with the credible and undenied testimony of
Jackson and Blalock that Darnell told department man-
agers not to worry about whether their conduct was un-
lawful and that Darnell would take care of these matters.
Sommerfield, however, did emphasize to department
managers certain conduct, referred to as "TIPS," which
they were not allowed to do by law: Threaten, Interro-
gate, Promise, Surveil.
When Sommerfield was finished addressing the depart-
ment managers, Ropecki addressed the -group. Ropecki
told the department managers that Respondent was in
the process of creating a new position in the stores to be
called floor supervisor. Ropecki stated that the position
was "almost like an assistant manager." He informed the
department heads that the person chosen for this position
would have'to be a hard worker, responsible, and some-
one who wanted a future at Heck's, who would one day
want to go on to be a manager. Ropecki stated that Re-
spondent had not chosen the individual to fill that posi-
tion in the Oliver Springs store. He told the department
managers that at Oak Ridge, however, Blalock had been
chosen for the position. Ropecki pointed out Blalock to
the assembled group. Blalock thanked Ropecki, adding
that she did not yet know what her duties would be. Ro-
pecki told Blalock that on the following day she would
meet with management who would describe her duties
and tell her what raise she would receive along with the
job. On that upbeat note, the meeting ended.
On the morning of March 21, Kathleen Jackson was
told by Store Manager Gardner that Rolley would like
to meet with her in the store office. When Jackson got
to the office, Rolley and Sommerfield were both there.
Sommerfield told Jackson to be seated, and then in-
formed her that he would like to "do a survey" of Jack-
son. Jackson asked if she had to be the first one to have
the survey done. Sommerfield replied that he could start
with somebody else, but that all the department manag-
ers were going to have them done in any event. Jackson
told Sommerfield she had just been kidding, that she did
not mind being first. Sommerfield asked Jackson her
name, address, social security number, and other routine
questions. As Jackson spoke, Sommerfield wrote on a
piece of paper. Sommerfield asked Jackson if she would
be willing to return to the clothing department, noting
that the manager in that department had quit and that
Respondent needed someone in clothing. Prior to this
Elam, Mobeley, and Reed had all asked Jackson if she
would be, willing to take the department manager's job in
the clothing department. According to Jackson, the
clothing' department took up almost half of the store, and
she asked Sommerfield if she would get a raise if she
took the position. Sommerfield told Jackson that there
would be no immediate raise, but that he would work on
getting her a raise. Sommerfield told Jackson, "You are
damned good and you belong in clothing." Jackson
asked Sommerfield who she should inform if she decided
to take the job. Sommerfield responded that Rolley and
Gardner would talk to Jackson in the morning, and she
could tell them.
Sommerfield then asked Jackson if she had signed a
union card. Jackson said she had not. Sommerfield asked
Jackson if she had ever been to a union meeting. Jackson
again replied that she had not. Sommerfield then asked
Jackson if she had ever been invited to a union meeting,
and Jackson replied that she had. Sommerfield asked
Jackson who had invited her. Jackson replied, "A
member of the Union invited me." Sommerfield asked
Jackson if she had gone to the meeting. Jackson replied,
"No, I didn't go." Sommerfield asked Jackson if she
knew an employee named Shirley Patterson. Patterson is
a salesclerk in the Oliver Springs store. Jackson replied
that she did. Sommerfield asked Jackson to tell him what
she knew about Patterson. Jackson told Sommerfield that
they had worked in the same store for about 4 years, she
on one side of the store and Patterson on the other. Jack-
son stated that they sometimes took rest breaks and
lunchbreaks together. Jackson then told Sommerfield
that in order for her to say any more about Patterson, he
would have to ask her direct questions which she would
answer. Sommerfield asked Jackson if she knew that Pat-
terson was active in the Union. Jackson replied that she
did not know this for sure, but that she had heard it.
Sommerfield asked Jackson if Patterson had ever had
union meetings at her house. Again, Jackson replied that
she did not know this for sure, but that she had heard it.
Sommerfield asked 'whether or not Patterson ever par-
ticipated in any union activities. Again, Jackson replied
that she had heard this but did not know for sure.
Sommerfield then asked Jackson if she liked Store
Manager Doug Green, who had been fired about 3
weeks prior. Jackson said that she did. Sommerfield then
asked if Jackson liked the current management. Again,
Jackson replied that she did. At that point, Sommerfield
922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
returned once again to the Union, asking Jackson if she
was sure that she did not sign a union card. Jackson
raised her hand and said, "I will swear I haven't signed a
union card." Sommerfield asked, "Have you been to a
union meeting?" Jackson replied, "No, I have not been
to a union meeting." Sommerfield then went on for some
time, switching back and forth between questions about
the store and questions about Jackson's union activity.
Sommerfield then asked, "Well, do you think that you
need a union?" Jackson replied, "No, I have been here
four and a half years and I have been treated fairly."
Sommerfield replied, "Well, that's good." During this
meeting, Sommerfield also asked Jackson if she had been
told by anyone that she could join the Union. Jackson
replied that she had, and Sommerfield asked Jackson
who had told her this. Jackson replied that she had been
told this by some of the rank-and-file employees in the
store who said she would be able to join the Union since
she punched a timeclock and therefore was not really a
part of management. Jackson told Sommerfield that she
had told the employees she did not think she could join
the Union. This meeting between Jackson, Sommerfield,
and Rolley lasted almost 2 hours. When it was finally
over, Jackson returned to work.
No other department manager was subjected to a simi-
lar "survey."
About 5 p.m. that same day, Blalock was summoned
to Gardner's office. Waiting there were Gardner and
Rolley Blalock sat down, expecting to discuss with
Gardner and Rolley her promotion to the new position
as floor supervisor and any raise that she might get as a
result. Instead, without any prior warning, Rolley pro-
ceeded to inform Blalock that he knew how unhappy she
was, that Fleck's was also unhappy with her, and that
Respondent thought it would be to both of their benefits
if they "parted company." Blalock asked, "Are you
firing me?"' Rolley responded, "Yes." Blalock then asked
how she could be fired when yesterday she had been
told how good she was. Rolley replied, "Well, your atti-
tude and your work, we just decided that we need to
part company." Blalock demanded a reason. Rolley re-
plied, "We have been discussing it for several days and
we have decided that you need to be let go." Blalock re-
sponded, "There has got to be more," but Rolley would
neither respond nor look at Blalock. Finally, Rolley said,
"That is all you need to know." Blalock then turned to
Gardner asking, "Did you know this was going to
happen? Did you have anything to do with this?" Gard-
ner would neither reply nor look at Blalock. He simply
kept his head down, writing on a piece of paper. Blalock
asked for a termination slip, and was told she would get
it in the mail. Blalock then asked if she would be able to
draw unemployment, and was told there would be no
problem. Blalock then asked what Respondent would put
as the reason for her termination, and she was told "a
bad attitude and bad work." Blalock responded that she
did not know how her work could get so bad in 24
hours. The meeting ended.
Immediately after Blalock was discharged, Jackson
was also called to Gardner's office and discharged. Jack-
son, like Blalock, was told as the reason, "You are un-
happy with Heck's, Heck's is unhappy with you, and
you do bad work."
Analysis and Conclusions
Speaking at meetings of department heads in February
or March, and again on March 20, 1984, Respondent's
president Ray Darnell threatened store closure if the
Union won an election, threatened discharge if employ-
ees went on strike, and stressed the futility of the em-
ployees supporting the Union since Respondent would
never sign a contract even if the Union won an election.
At the earlier meeting, Darnell also told the department
heads to solicit employees to withdraw from the Union
by telling them that they could withdraw their union au-
thorization cards. I have found above that at the time of
these meetings Kathleen Jackson was not a supervisor
within the meaning of the Act, but rather was a statutory
employee. In view of this finding, Darnell's remarks to
the assembled group which included Jackson violated
Section 8(a)(1) of the Act.
Following the earlier meeting that Darnell held with
department managers, both Jackson and Blalock effec-
tively repeated Darnell's remarks to employees. Since
Jackson was a statutory employee, I do not find that her
statements constitute violations of Section 8(a)(1) of the
Act by Respondent. Blalock, however, has been found to
be a supervisor. Accordingly, I find that her remarks to
employees do violate Section 8(a)(1) of the Act.
On March 21, 1984, Labor Relations Consultant Som-
merfield and District Manager Bill Rolley interrogated
Jackson extensively concerning her union membership,
activities, and desires, and the union membership, activi-
ties, and desires of other employees. There is no indica-
tion whatever that Jackson was a leading and open union
adherent within the meaning of the Board's decision in
Rossmore House, 269 NLRB 1176 (1984). Accordingly, I
find that this interrogation of Jackson violated Section
8(a)(l) of the Act.
The unrebutted evidence in this case more than ade-
quately establishes a prima facie case that Jackson was
fired because Respondent suspected that she supported
the Union. On the morning Jackson was discharged, she
was subjected to a "survey" by Respondent which in-
cluded extensive and repeated interrogation about her
own union sympathies as well as the union sympathies
and activities of other employees. That same afternoon,
Jackson was precipitously discharged. Respondent has
not even attempted to offer any evidence which might
support a proper and lawful reason for Jackson's dis-
charge. Accordingly, I find that Jackson was discharged
by Respondent because of her actual or suspected activi-
ties on behalf of, or support for, the Union in violation of
Section 8(a)(l) and (3) of the Act.
Counsel for the General Counsel argues that in the
event Blalock is found to be a supervisor within the
meaning of the Act, the evidence supports a conclusion
that she was discharged because she failed or refused to
commit unfair labor practices, or committed them only
reluctantly, as directed by Darnell Counsel for the Gen-
eral Counsel relies on Talladega Cotton Factory, 106
NLRB 295 (1953), and apparently takes this position be-
HECK'S INC. 923
cause the current Board has held that it is not unlawful
for an employer to discharge a supervisor because of the
supervisor's actual or suspected union activity or sup-
port, regardless of the inhibiling effect such a discharge
might have on the union activities of statutory employ-
ees. Parker-Robb Chevrolet, 262 NLRB 402 (1982).4
The evidence is weak that Respondent even asked its
supervisors to commit unfair labor practices. As a result
of leading questions by counsel for the General Counsel,
Jackson testified that Darnell asked department heads to
tell employees that Respondent would not sign a con-
tract and before it would let a union come in, Respond-
ent would close its doors. Blalock did not offer testimo-
ny to corroborate Jackson. Blalock simply testified that
Darnell told department managers they should encour-
age employees to withdraw their union authorization
cards. Counsel for the General Counsel's leading ques-
tions and the failure of the two witnesses to corroborate
one another tend to weaken the General Counsel's case.
While Blalock , with Jackson, approached Store Manager
Gardner and told him she was concerned because she
had done things which the Union's letter said she should
not do, Gardner did not chastise Blalock in any way be-
cause of her concern. Rather, Gardner simply told Bla-
lock to "stay cool," that Darnell was coming to the store
in the next few days, and Darnell would tell Gardner
and Blalock what to do. Blalock never spoke to Darnell
about her concern created by the letter. Other depart-
ment managers , however, openly expressed similar con-
cern to Darnell in the meeting of department managers
on March 20. Darnell did not chastise or ridicule these
other managers for having a concern similar to Blalock's.
Instead, Darnell told the department managers not to
worry, that they could not be held personally liable, and
that Respondent would take full responsibility. There is
no indication that these other department managers who
expressed concerns similar to Blalock's concern were dis-
charged or otherwise retaliated against for having this
concern or voicing it to Darnell. The fact that it was not
Blalock, but rather these other department managers
who openly voiced concern to Darnell, and the fact that
nothing apparently happened to them also tend to
weaken the General Counsel"s theory.
The record as a whole unquestionably supports the
conclusion that Blalock's discharge was in some way
connected with the Union. Blalock and Jackson had both
expressed to Gardner their concern about having com-
mitted unfair labor practices. On the morning of March
21, Jackson was interrogated extensively about her union
activities and sentiments. Jackson and Blalock were both
precipitously discharged that same afternoon, only mo-
ments apart from one another. Respondent offered no ex-
planation or reason of any kind for discharging either
Jackson or Blalock. There is, however, no indication that
during Jackson's extended interrogation on the morning
of March 21 she was in any way questioned or spoken to
about her concern over having received the Union's
March 15 letter or reluctance on her part to commit
4 The Board would apparently find irrelevant the admissions of two
corporate managers in this case that Jackson and Blalock were dis-
charged in order to serve as examples to rank-and-file employees.
unfair labor practices on behalf of Respondent. Rather,
the interrogation was directed entirely toward her and
employees' activities on behalf of, and support for, the
Union.
Considering the entire record, I find there is no more
evidence from which to conclude that Blalock was dis-
charged for refusing to commit unfair labor practices
than there is evidence that she was discharged because of
her actual or suspected activities on behalf of, or support
for, the Union. Accordingly, I must conclude counsel for
the General Counsel has failed to sustain its burden of
proof herein, and I shall dismiss that portion of the com-
plaint.
CONCLUSIONS OF LAW
1. Respondent, Heck's Inc., is an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
2. Retail Clerks Union, Local 1557, United Food and
Commercial Workers International Union, APL-CIO-
CLC is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. Throughout all times relevant to this case, Vonnie
Blalock exercised supervisory authority and was a super-
visor and agent of Respondent within the meaning of
Section 2(11) of the Act.
4. While Kathleen Jackson may have been a supervisor
within the meaning of Section 2(11) of the Act during
the months of November and December 1983 and Janu-
ary 1984, she exercised no supervisory authority and was
not a supervisor, but rather was an employee within the
meaning of the Act during February and March 1984.
5. During meetings conducted in late February or
early March 1984, and in a meeting on March 20, 1984,
Respondent, acting through its president, Ray Darnell,
threatened employees that Respondent would not sign a
contract with a union even if employees chose it as their
collective-bargaining representative; threatened that Re-
spondent would close its Oak Ridge and Oliver Springs
stores before it would allow a union to represent em-
ployees; solicited employees to revoke and retract union
authorization cards; threatened that if employees went on
strike and walked a picket line they would be terminated
and people would be hired in their place; and threatened
employees that he would fire his own mother before he
would allow a union to come into Heck's; and Respond-
ent thereby violated Section 8(a)(1) of the Act.
6. In late February or early March 1984, Respondent,
acting through Vonnie Blalock, told employees that Re-
spondent would not tolerate a union, that Respondent
would not sign a contract with a union even if they se-
lected it to represent them, and that Respondent would
close its Oak Ridge store if necessary in order to avoid
unionization, and Respondent thereby violated Section
8(a)(1) of the Act.
7. On March 21, 1984, acting through its agent, Labor
Relations Consultant Sommerfield, Respondent interro-
gated an employee about her union activities and senti-
ments and the union activities and sentiments of other
employees, and Respondent thereby violated Section
8(a)(1) of the Act.
924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8. On March 21, 1984, Respondent discharged employ-
ee Kathleen Jackson because of her actual or suspected
activities on behalf of, or support for, the Union, and Re-
spondent thereby violated Section 8(a)(1) and (3) of the
Act.
9. There is no more evidence from which to conclude
that Supervisor Vonnie Blalock was discharged by Re-
spondent on March 21, 1984, for refusing to commit
unfair labor practices than there is evidence that she was
discharged because of her actual or suspected activities
on behalf of, or support for, the Union, and Counsel for
General Counsel has therefore failed to sustain its burden
of proof herein. Accordingly, that portion of the com-
plaint is hereby dismissed.
10. The unfair labor practices which Respondent has
been found to have engaged in, as described above, have
a close, intimate, and substantial relationship to trade,
traffic, and commerce among the several States and tend
to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce within the mean-
ing of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent , Heck 's Inc ., has en-
gaged in certain unfair labor practices in violation of
Section 8(a)(1) and (3) of the Act, I shall recommend
that it be ordered to cease and desist therefrom and to
take certain affirmative action designed to effectuate the
policies of the Act.
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
ed5
ORDER
The Respondent, Heck' s Inc ., Oak Ridge, Tennessee,
its officers , agents, successors , and assigns, shall
1. Cease and desist from
(a) Threatening employees that Respondent will not
tolerate a union at its Oak Ridge or Oliver Springs
stores.
(b) Threatening employees with discharge in retalia-
tion for supporting Retail Clerks Union, Local 1557,
United Food and Commercial Workers International
Union, AFL-CIO-CLC or any other labor organization.
(c) Threatening to close its Oak Ridge and Oliver
Springs stores before Respondent would allow a union to
represent employees.
(d) Threatening employees that Respondent would not
sign a contract with a union even if employees choose it
as their collective-bargaining representative.
(e) Threatening employees that if they go on strike
against Respondent and walk a picket line, they will be
terminated.
(f) Soliciting employees to revoke and retract union
authorization cards.
(g) Interrogating employees about their union activities
and sentiments, and the union activities and sentiments of
other employees.
(h) Discharging employees because of their actual or
suspected activities on behalf of, or support for, the
Union.
(i) 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) Offer Kathleen Jackson immediate and full rein-
statement to her former position or, if that position no
longer exists, to a substantially equivalent position, with-
out prejudice to her seniority and other rights and privi-
leges.
(b) Make whole Kathleen Jackson for any loss of earn-
ings or benefits she may have suffered by reason of the
discrimination against her by payment to her of a sum of
money equal to the amount she normally would have
earned from the date of such discrimination to the date
of Respondent's offer of reinstatement, less net interim
earnings , with backpay to be computed in the manner
prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950),
with interest to be computed in the manner prescribed in
Florida Steel Corp., 231 NLRB 651 (1977); see generally
his Plumbing Co., 138 NLRB 716 (1962).
(c) Remove from its files any reference to the dis-
charge of Kathleen Jackson, and notify her in writing
that this has been done and that evidence of the unlawful
discharge will not be used as a basis for future personnel
action against her.
(d) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(e) Post at its stores in Oak Ridge and Oliver Springs,
Tennessee, copies of the attached notice marked "Appen-
dix."6 Copies of the notice, on forms provided by the
Regional Director for Region 10, after being signed by
the Respondent's authorized representative, shall, be
posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
5 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.
6 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 Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
HECK'S INC. 925
APPENDIX
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.
WE WILL NOT threaten employees that we will not tol-
erate a union at our Oak Ridge or Oliver Springs stores.
WE WILL NOT threaten employees with discharge in
retalial ion for supporting Retail Clerks Union, Local
1557, United Food and Commercial Workers Interna-
tional Union, AFL-CIO-CLC, or any other labor orga-
nization.
WE WILL NOT threaten to close our Oak Ridge or
Oliver Springs stores before we would allow a union to
represent employees; threaten employees that we would
not sign a contract with a union even if employees
choose it as their collective-bargaining representative; or
threaten employees that if they go on strike and walk a
picket line, they will be terminated.
WE WILL NOT solicit employees to revoke and retract
union authorization cards.
WE WILL NOT interrogate employees about their'union
activities and sentiments, and the union activities and
sentiments of other employees.
WE WILL NOT discharge employees because of their
actual or suspected activities on behalf of, or support for,
the Union.
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.
WE WILL offer Kathleen Jackson immediate and full
reinstatement to her former position or, if that position
no longer exists, to a substantially equivalent position,
without prejudice to her seniority and other rights and
privileges.
WE WILL make whole Kathleen Jackson for any loss
of earnings or benefits she may have suffered by reason
of the discrimination against her by payment to her of a
sum of money equal to the amount she normally would
have earned from the date of such discrimination to the
date of our offer of reinstatement, less net interim earn-
ings.
WE WILL expunge from our files any reference to the
discharge of Kathleen Jackson, and notify her in writing
that this has been done, and that evidence of the unlaw-
ful discharge will not be used as a basis for future per-
sonnel action against her.
HECK'S INC.