Heck's, Inc.

National Labor Relations Board - Board Decisions

Jun 23, 1966

159 N.L.R.B. 1151 (N.L.R.B. 1966)

HECK 'S, INC. 1151
2. Milwaukee Printing Pressmen and Assistants' Union No. 7,
International Printing Pressmen and Assistants Union of North
America, AFL-CIO, is not entitled to force or require the Sells
Printing Company to assign the aforementioned offset preparatory
work to employees represented by it.
3. Within 10 days from the date of this Decision and Determina-
tion of Dispute, Milwaukee Printing Pressmen and Assistants'
Union No. 7, International Printing Pressmen and Assistants Union
of North America, AFL-CIO, shall notify the Regional Director
for Region 30, in writing, whether or not it will refrain from forc-
ing or requiring the Sells Printing Company, by means proscribed
by Section 8 (b) (4) (D) of the Act, to assign the above-described
work to employees represented by the Pressmen rather than those
represented by the MTU.
Heck's, Inc. and Food Store Employees Union , Local No. 347,
Amalgamated Meat Cutters and Butcher Workmen of North
America, AFL-CIO. Case 9-CA-3578. June 23, 1966
DECISION AND ORDER
On November 23, 1965, Trial Examiner Benjamin B. Lipton issued
his Decision in the above-entitled proceeding, finding that Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices within the meaning of the National Labor Relations Act, as
amended, and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Trial
Examiner's Decision. He also found that Respondent had not
engaged in certain other unfair labor practices alleged in the com-
plaint and recommended that such allegations be dismissed. There-
after, Respondent, the General Counsel, and the Charging Party
each filed exceptions to the Trial Examiner's Decision, together
with supporting briefs.
Pursuant to Section 3(b) of the Act, the National Labor Rela-
tions Board has delegated its powers in connection with this case
to a three-member panel [Chairman McCulloch and Members Jen-
kins and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions, the briefs, and the entire
159 NLRB No. 104.
1152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
record in this case , and hereby adopts the findings,' conclusions, and
recommendations of the Trial Examiner.
[The Board adopted the Trial Examiner's Recommended Order
with the following modification :
["Add at the end of the Recommended Order the following sen-
tence :
["The complaint insofar as it alleges violation of Section 8(a) (5)
of the Act is hereby dismissed."]
i The General Counsel and the Charging Party have excepted to the Trial Examiner's
finding that the Union did not represent a majority of unit employees at the relevant times,
and they challenge this finding on several grounds. First, it is argued that the Trial
Examiner erred in finding that 16, rather than 19, employees had signed authorization
cards by the date of the Union's second demand for recognition. We adopt this finding
of the Trial Examiner as we do not find that the underlying credibility determinations
should be reversed under accepted standards Standard Dry Wall Products, Inc, 91
NLRB 544, enfd 188 F 2d 362 (C.A. 3).
Secondly, it is argued that the Trial Examiner erred in finding that the unit consisted
of 33, rather than 31, employees because his inclusion in the unit of two clerical employees
conflicts with the Board's decision in Allied Stores of New York, Inc d/b/a Stern's,
Paramus, 150 NLRB 799, and with a Board decision in another Heck's Inc case, 156
NLRB 760, involving another store in Respondent's chain and in which the Board ex-
cluded similar employees from the unit Our earlier Heck's decision was based upon a
stipulation by the parties to exclude the clerical employees and is therefore no precedent
for such a result where the matter is contested, as it is here We consider the rationale
of Stern's, Paramus inapplicable here That case involved a large retail store with distinct
functional groupings of employees which led us to find that the office clerical group had
a distinct community of interest and should be excluded from all other appropriate units
In this case the relatively small employee complements have similar working conditions
and related, overlapping work functions, and we find that the clerical employees therefore
share a community of interest with the other unit employees Accordingly, we find, as did
the Trial Examiner, that the appropriate unit here consisted of 33 employees including
the 2 clerical employees.
The parties finally contend that even if the Union represented only 16 of 33 employees
at the time of its demands, the Trial Examiner erred in failing to find that the Union's
demand for recognition was a continuing one which supports a finding of a violation of
Section 8(a) (5) and (1) as of the date when the Union did acquire majority status. We
do not pass on the continuing demand point, for even if we were to find that the demand
were a continuing one, we would not find that Respondent's refusal to bargain was un-
lawful. We conclude that Respondent's "interrogation, while unlawful, was not so
flagrant that it must necessarily have had the object of destroying the Union's majority
status" ( Hammond if Irving, Incorporated, 154 NLRB 1071, 1073), nor was Respondent's
conduct of such a character as to support an inference that Respondent's refusal to bar-
gain was made in bad faith in violation of Section 8(a)(5) and (1) of the Act. (Aaron
Brothers Company of California, 158 NLRB 1077 )
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This case was heard before Trial Examiner Benjamin B. Lipton on August 31
and September 1, 1965,1 in Huntington, West Virginia, upon a complaint by the
General Counsel2 alleging that Respondent violated Section 8(a)(1) and (5) of
the Act. All parties were represented at the hearing and were afforded full oppor-
tunity to present relevant evidence, to argue orally on the record, and to file briefs?
Oral argument was waived on both sides. Only Respondent filed a brief, which has
been duly considered.
i All dates are in 1965, except as otherwise specified.
2Issued on June 28, based upon a charge filed on May 10 and served on May 12.
$ Respondent 's motion to dismiss the complaint is disposed of in accordance with the
findings below.
HECK'S, INC. 1153
Upon the entire iecord in the case, and from my observation of the demeanor
of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Respondent is engaged in the retail department store business at several stores
located in West Virginia and Kentucky. Only its store at Fifth Avenue in Hunting-
ton, West Virginia, is the subject of this proceeding. During the year preceding
issuance of the complaint, Respondent had a gross volume of retail sales valued in
excess of $500,000, and it had a direct inflow in interstate commerce of purchased
goods and materials valued in excess of $50,000. Respondent admits, and I find,
that it is engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Food Store Employees Union, Local No. 347, Amalgamated Meat Cutters and
Butcher Workmen of North America, AFL-CIO, herein called the Union, is a labor
organization within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Issues
The 8(a)(1) allegation is confined to Respondent's conduct in systematically
questioning all employees concerning their desires to be represented by the Union
immediately following receipt of the Union's demand for recognition. The theory
of the complaint is that such interrogation of employees by Respondent had the
purpose of undermining the Union. Respondent defends on the ground that, under
the Blue Flash doctrine,4 it had conducted a noncoercive and proper investigation
of the Union's representation claim. The 8(a)(5) allegation centers upon the
Union's recognition request supported by signed authorization cards of an alleged
majority of employees in an appropriate unit, its offer to submit such cards tor
Respondent's inspection or to a "third disinterested party" for verification; and
Respondent's refusal of recognition, after it had taken a poll of the employees, stat-
ing as the reasons that the unit requested was inappropriate and that it had "deter-
mined" that the Union lacked majority status.
B. Introductory evidence
Early in February, the Union commenced a campaign to organize the employees
at Respondent's Fifth Avenue store. After initially meeting with certain employees,
the union agents 5 arranged for distribution of authorization cards, and thereafter
received signed cards from a number of employees.
By letter to Respondent dated March 8, the Union requested recognition and bar-
gaining for "the eligible employees" at the Fifth Avenue store, upon advising
Respondent that it had signed authorization cards from a majority of such employ-
ees and that it was prepared to deliver those cards to Respondent or to a "third
disinterested party" for determination of its majority status.
On March 11, Respondent's attorney replied to the Union, refusing the recogni-
tion request. The letter stated that Respondent had "caused an investigation to be
conducted into this matter under the Blue Flash Doctrine" and it "determined" that
the Union represented less than a majority of all employees, or of the hourly paid
employees, in the store; that the term "eligible employees" was confusing, and
Respondent "must conclude therefore" that the Union sought a unit of all employ-
ees, which was an inappropriate unit.
On March 17, the Union wrote to Respondent's attorney. It disagreed that
Respondent's "investigation" was conducted in accordance with the Blue Flash
doctrine, stating its reasons. It clarified that by "eligible employees" it meant those
normally excluded by the Board; i.e., the manager, assistant manager, "the office
clerical employees who work in the office," and supervisors. Finally, it repeated
its offer to deliver signed authorization cards to Respondent "or to a third party so
there can be no possible doubt as to our majority status ... .
4 Blue Flash Express, Inc ., 109 NLRB 591.
5 Woodrow It. Gunnoe, Carlton N. Cass, and Hazel La Fon
243-084-67-vol. 159-74
1154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There were no further communications between Respondent and the Union.
C. The Union's bargaining request, and the appropriate unit
In its March 8 letter, the Union referred merely to the "eligible employees" in
presenting its bargaining demand. The unit requested was thus ambiguously
described. However, Respondent notified the Union of its assumption that a unit
of "all employees" was sought, and it declined the demand for recognition on the
ground, in part, that such a unit is inappropriate.6 In its March 17 letter, the Union
specified that by "eligible employees" it intended to exclude office clericals and
supervisors. To this communication Respondent made no reply.
The complaint alleges, and Respondent denies, that the appropriate unit consists
of all employees at the Fifth Avenue store, excluding office clericals, professionals,
guards, and supervisors.
It is a long-established policy of the Board to include office clerical employees
in a storewide unit (selling and nonselling employees) of a retail establishment, as
here involved.? Accordingly, I find the following unit appropriate for purposes of
collective bargaining within the meaning of Section 9(b) of the Act:
All employees at Respondent's Fifth Avenue store in Huntington, West Virginia,
including office clerical employees, but excluding the store manager, assistant store
manager, guards, professional employees, and supervisors as defined in the Act.
D. The majority question
The parties stipulated that when the Union requested recognition the bargain-
ing unit, if found appropriate by me, should consist of at least 30 employees, exclu-
sive of other specified employees whose unit placement was in dispute. At the hear-
ing, the General Counsel's position was that two employees, Eve Byrd and Ellen
Handlin, should be excluded as office clericals, while Respondent contended for
their inclusion. Byrd and Handlin work in an enclosed office on the selling floor.
Both spend the majority of their time operating a switchboard. Each performs
various additional functions, at times in conjunction with maintaining the switch-
board. In March, Handlin counted the money receipts of the store and made
entries in a ledger; Byrd assumed this duty ate later time. Byrd does typing work
as is necessary, which mainly consists of preparing "ad lists." Handlin and Byrd
also keep the files, refund money, write exchange steps for customers, and tabulate
on employee timecards the total hours worked. They are sometimes called on the
selling floor to put up stock, price merchandise, and help with the inventory. Nei-
ther has confidential duties. It is my finding that Byrd and Handlin are essentially
office clerical employees and are properly within the bargaining unit.8
In March, Michael Brown, although he was concurrently a college student,
worked full time as a clerk in the sporting goods department. The General Coun-
sel advanced no reason for his exclusion. He will therefore be counted as part of
the unit.
The evidence shows that Juanita Adkins was terminated in February and was
not thereafter employed. On January 26, she was given time off with the under-
standing she would notify Respondent the next day of the status of her illness and
availability to work. She failed to call in as required, and on February 3 a termi-
nation entry was made in her personnel file. The General Counsel offered no con-
troverting testimony or contention. I find that Adkins was no longer on Respond-
ent's payroll when the Union made its recognition demand.
Presumably, Respondent's objection was based upon its own assumption that the re-
quested unit encompassed supervisors, professionals, and guards (It is noted that, in
its answer to the complaint, Respondent states that "on about March 8, 1965, the Union
requested recognition as the bargaining agent of `some' of the employees of Respondent.")
Cf., e.g., The Hamilton Plastic Molding Company, 135 NLRB 371, 373, where the Board
found that, even if the union intended to seek a bargaining unit which improperly in-
cluded a clerical and a supervisor , the variance between the requested unit and the ap-
propriate unit would be minor and subject to modification.
7 E.g, Ohrbachs, Inc., 118 NLRB 231; Taunton Supply Corp . and Pierce Hardware
d/b/a Taunton Supply Corp., 137 NLRB 221.
8 Even if they were not office clericals in a formal sense, they would be included in
the storewide unit. -'
HECK'S, INC. 1155
The General Counsel seeks the inclusion of John Eades, a department head in
the jewelry section. Eades testified that he and the two employees under him per-
form the same functions, punch a timeclock, and receive overtime pay. However,
he assigns and directs the work of the two employees, grants their requests for a
day off, schedules their vacations, and authorizes their overtime work. He related
instances in which he made recommendations, which were effective, that an
employee be hired, that an employee be given a pay raise, and that an employee
be removed from his department. Eades is paid a salary of $375 a month, while
the two employees, hourly paid, earn $240 a month. Fades' testimony was uncon-
tradicted and largely corroborated by the store manager, Tim Craeger. In addition,
Ray Darnall, operating manager of all seven company stores, testified that the labor
relations policy affecting employees is the same in all stores, and that in effect all
department heads have the same authority. Official notice is taken of a prior Board
decision involving Respondent's Ashland, Kentucky, store, in which department
heads were held to be supervisors .9 Accordingly, Eades is excluded as a supervisor.
Mary Connor is the head cashier and a department head. She directs and
schedules the work of the cashiers, including the assignment of overtime. Respond-
ent contends 10 that she should be included in the unit. However, I find she is a
supervisor, for reasons shown above as to Eades, and exclude her.
In accordance with the foregoing, with the addition of Byrd, Handlin, and Brown,
there were 33 employees in the unit when the Union requested recognition. Author-
ization cards for 19 of these employees 11 were introduced and authenticated, mainly
through the testimony of the union organizers. Included among the 19 cards are
those of 3 employees who testified positively that they had signed the cards sub-
stantially later than the date indicated on the card and subsequent to the Union's
bargaining demand. Irene Walters testified that she thought she had signed approx-
imately 2 or 3 weeks before her vacation on July 15, and that she did not believe
the date entered on her card, March 6, was in her handwriting. Jean Fuller testi-
fied that she signed in the warm weather, "either the first of April or the last of
March." She said she could not have signed on the date appearing on her card,
February 18, which fell on a Thursday. She knew she signed when La Fon and
Sargent visited her home at the time her husband was out bowling, on Friday. She
believed the date on the card was not in her handwriting, but identified all other
entries on the card as hers. Virgil Chapman testified that, although the date on the
card looked like his handwriting, he was sure he had signed after Respondent had
taken a poll of the employees on March 10. Mary Sargent testified that Fuller and
Walters signed in her piesence at their respective homes on the dates entered on
their cards La Fon identified Fuller's card and testified she was present when it
was signed on the date indicated. Cass testified that he was at Chapman's home
and witnessed the card signing on the date which appears. In rebuttal, Gunnoe
testified he received from La Fon the cards of Fuller and Walters on the date
shown on the cards, and that he had all the cards in his possession when the
Union's demand letter of March 7 was written.
Upon careful examination of Fuller's card, in my opinion the date was inserted
with a different pen and in a different handwriting from Fuller's writing on the rest
of the card. With less certainty, I am of a similar view with respect to Walters'
card, and it does not clearly appear that the date of Chapman's card is in his
'handwriting.. No testimony was offered by the General Counsel, initially or in
rebuttal, specifically with reference to the entry of the dates on the three cards in
question. A direct and close conflict in the evidence is thus presented. Upon all
the evidence, and the record as a whole,ia I credit the testimony of employees
Walters, Fuller, and Chapman, and find that their cards were signed after the bar-
gaining demand was made upon Respondent. Consequently, as the Union had valid
6 Heck's, Inc d/b/a Heck's Discount Store, 150 NLRB 1565.
10 Inconsistently, it appears, with its position as to Eades
u The cards of Irene Walters and Louise Morrison, after authentication by Mary Sargent,
were offered in evidence but pending objections were not formally received. These cards
are herein ruled to be admitted. The reporter erroneously noted in the exhibit file that
the card of Dan Unstead was received. His card is not in issue, as the parties agreed
to exclude him as a part-time guard.
19 On this issue, the General Counsel presented no argument or analysis at the hearing
or in a brief.
1156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cards for only 16 of 33 employees in the unit, I find that it lacked authorization
from a majority of the employees in the unit at all times material. The allegation
that Respondent violated Section 8(a)(5) is therefore dismissed.
E. Respondent 's polling of employees
About March 9, Store Manager Craeger was advised by Operating Manager
Darnall of the Union 's demand for recognition and was instructed to telephone
Respondent 's attorney , Frederick F. Holroyd. Craeger called Holroyd , who dictated
and Craeger wrote down specific language to use in taking a poll of the employees.
Respondent introduced the handwritten document, which contains the following
language.
3/10/65
WE HAVE REC'D A LETTER FROM THE FOOD STORE EMPLOYEES
UNION CLAIMING THEY REPRESENT A MAJORITY OF OUR
EMPLOYEES AND DEMAND THAT WE NEGOTIATE WITH THEM.
WE ARE TRYING TO FIND OUT IF THIS IS TRUE OR FALSE. DO
YOU WANT THE UNION TO REPRESENT YOU?
NOTHING WILL HAPPEN TO YOU REGARDLESS OF WHAT YOU
SAY OR DO ONE WAY OR THE OTHER AND THIS HAS NOTHING TO
DO WITH YOUR JOB IN THE FUTURE.
On March 10, the questioning of employees , separately called aside from their
work stations,13 was systematically undertaken by Craeger, in the company of
Assistant Manager Dallas Rogers . On a separate pad, with the names of the
employees arranged by department , and two columns captioned "For" and
"Against"-Craeger noted the answers of the employees. Some requested that
they be put down as "neutral ," which Craeger inserted in parentheses next to their
names. The results on Craeger's pad show 3 employees as being "For," 6 "neu-
tral," and 28 "Against."
Craeger testified that he read to each employee from his written notes, as quoted
above, and that he did not alter the wording in any way. However, all of the
employees who testified on the subject 14 clearly and credibly stated that they were
asked whether they wanted "Heck's or the union" to represent them.15
Respondent 's opposition and animus toward union representation of the employ-
ees is evidenced by letters (on December 31, 1964 and March 1, 1965) from
Respondent to the employees relating to attempts by "several unions . to orga-
nize Heck's stores and warehouse ." 16 Among other things, Respondent stated, "You
should know that signing a union card does not make you a union member at
Heck's. Heck's does not have a union. The signing of a card can be used only to
secure an election ." (The latter is a misrepresentation .) Also, the employees were
told, "No union represents any employees before this company. We have not dealt
with any union concerning our employees . We do not plan to do so in the future."
In addition , official notice has been taken of the Board 's decision on February 5,
1965,17 in which Respondent , at its Ashland store , was found to have engaged in
coercive and discriminatory conduct regarding union organization , and a broad
cease-and -desist order was issued.
As the Board and the courts have abundantly shown , an employer has no blanket
right to interrogate employees for the stated purpose of verifying a union 's claimed
majority status . Because of the inherent danger of coercion involved, the employer
13 At least one employee, Virgil Chapman, as he testified, was polled by telephone at the
warehouse.
14 Denver and Margie Holley ; Gerald Skanes ; James D. Miller ; Mary Sargent ; and Virgil
Chapman (a witness of Respondent). None of these employees was challenged by Respond-
ent on cross-examination concerning the form of the critical question put by Craeger.
11 Craeger did not "recall saying it that way," and did not "think so" because he "read
it from the sheet."
11 As earlier shown by Darnall's testimony, Respondent has a single labor relations policy
affecting all employees at its various stores consisting of one each in Charleston, Parkers-
burg, and Kanawha, West Virginia, and Ashland, Kentucky, and two in Huntington, West
Virginia. To all employees are distributed a monthly publication, "Heck's News,"
emanating from Charleston. The January issue prominently discussed an unfair labor
practice charge by the Union and complaint by the General Counsel against Respondent at
the Parkersburg store (Case 9-CA-3363), which was set for trial, and the article indicated
that "a final decision may not be available until the middle of 1967."
17 Heck's Discount Store, supra.
HECK'S, INC. 1157
may in such circumstances ascertain from employees facts concerning their union
views and activity, but only to the extent necessary for the employer's legitimate
purpose and within narrowly confined boundaries.'S
It is sufficient, without further elaboration on the circumstances and safeguards
of permissible interrogation, to hold here that, in several respects, Respondent has
patently failed in its conduct to avoid coercive impact on the employees. (1) There
was a background of expressed union antipathy and of unfair labor practices com-
mitted at another store. (2) The employees' participation in the poll was not ob-
tained on a voluntary basis. (3) The key question was unfairly put to the employ-
ees; i.e. , whether they wanted "Heck's or the Union" to represent them Thus, the
employees were asked, in the hostile atmosphere, to make a choice between the
Union and loyalty to the Company. And, of course, it is absurd that Respondent
could "represent" the employees in collective bargaining with itself. (4) Many em-
ployees who had recently signed a card in favor of the Union, upon being queried,
gave negative replies or indicated "neutral" positions, though Respondent requested
a definite answer. It is reasonably inferable that such responses to the interrogations
were affected by the restraint and fear instilled in the employees.19 (5) Respondent
was thus able to gather, as a matter of record thereafter, the employees' identities
and stated views with regard to union organization. In the entire context, I find and
conclude that the Respondent's interrogation and poll of the employees on March 10
tended to, and did, interfere with and restrain employees in the exercise of their
protected rights under Section 7, in violation of Section 8(a)(1), as alleged.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connec-
tion with the operations of Respondent described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States and tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent engaged in certain unfair labor practices, I will
recommend that it cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
As the record shows, inter alia, that Respondent has the same labor relations
policy and overall personnel management affecting the employees at all of its
seven stores, and its warehouse, in West Virginia and Kentucky, and that all such
employees in common are publicized by Respondent with its views and information
relating to union organizational developments at its various locations, it will be
recommended that Respondent post the "Notice," attached hereto, at all of its
stores, and at its warehouse.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
3. By interfering with, restraining, and coercing employees in the exercise of
rights guaranteed in Section 7 of the Act, Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a)(1) of the
Act.
'8E g , Joy Silk Mills, Inc. v N.L R B , 185 F.2d 732 (CAD C.), cert. denied 341 U S.
914; NL.R.B. v. Cameo, Inc., 340 F.2d 803 (C.A. 5) ; N L.R.B. v. The Lorben Copp., 345
F.2d 346 (C.A. 2) , international Union of Operating Engineers, Local 43 v N L R 13 , 353
F.2d 852; Blue Flash Express, Inc., 109 NLRB 591; S. H. Kress & Co., 137 NLRB 1244;
Johnnie's Poultry Co., 146 NLRB 770, and cases cited therein, reversed 344 F.2d 617
(C.A. 8), on failure of substantial evidence in that case; Cannon Electric Company, 151
NLRB 1465.
w Bonnie Bourne, an individual d/b/a Bourne Co. v. N.L.R.B., 332 F 2d 47 (C A 2) ;
Operating Engineers Local 49 v. N.L R B , ibid
1158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. The aforesaid unfair labor practices are unfair labor 1.:actices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
5. Respondent has not refused to bargain with the Union in violation of Sec-
tion 8 (a) (5) of the Act, as alleged.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclusions of law, and upon
the entire record in the case, it is recommended that Respondent, Heck's, Inc , its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interfering with, restraining, or coercing its employees in the exercise of
their rights guaranteed in Section 7 of the Act by interrogating them concerning
their union views or activities or by polling them in a manner constituting restraint
and coercion within the meaning of Section 8(a) (1) of the Act.
(b) In any like or related manner interfering with, restraining, or coercing
employees in the exercise of the rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action designed to effectuate the policies of
the Act:
(a) Post at all of its stores and at its warehouse, in West Virginia and Ken-
tucky, copies of the attached notice marked "Appendix." 20 Copies of said notice,
to be furnished by the Regional Director for Region 9, shall, after being duly
signed by Respondent, be posted immediately upon receipt thereof, in conspicuous
places, and be maintained for a period of 60 consecutive days. Reasonable steps
shall be taken to insure that said notices are not altered, defaced, or covered by
any other material.
(b) Notify the Regional Director for Region 9, in writing, within 20 days from
the receipt of this Decision, what steps Respondent has taken to comply herewith.21
20 In the event that this Recommended Order is adopted by the Board, the words "a
Decision and Order" shall be subbtituted for the words "the Recommended Order of a
Trial Examiner" in the notice In the further event that the Board's Order is enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order."
n In the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10, days from
the date of this Order, what steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE To ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT interfere with, restrain, or coerce our employees in the exer-
cise of their rights guaranteed by Section 7 of the Act by interrogating them
concerning their union views or activities or by polling them in a manner con-
stituting restraint and coercion within the meaning of Section 8(a)(1) of the
Act.
WE WILL NOT in any like or related manner interfere with, restrain, or
coerce employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist Food Store Employees Union, Local No.
347, Amalgamated Meat Cutters and Butcher Workmen of North America,
AFL-CIO, or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in any other concerted
activities for the purpose of collective bargaining or other mutual aid or pro-
tection, or to refrain from any and all such activities.
HECK'S, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
WALKER'S 1159
This notice must remain posted for 60 consecutive days from the date of post-
ing, and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, Room
2023, Federal Office Building, 550 Main Street, Cincinnati, Ohio 45202, Telephone
684-3627.
Bishop and Malco , Inc., d/b/a Walker's and Edna P. Mashburn
Bishop and Malco , Inc., d/b/a Walker's and Retail Clerks Orga-
nizing Council of Southern California , Retail Clerks Interna-
tional Association, AFL-CIO and A. J. Cruciani ; Lester B.
Newsome ; Kunion Beauty Salon, Inc.; Barton Jewelry Co., Inc.;
Harry Camp Millinery Company ; Dr. Marston E. Melton;
Wetherby-Kayser Shoe Co.; Helen Grace Candies ; Ralph and
Muriel Nymer d/b/a Pacific Coast Fur Co.; and Edwin R.
Brown, Parties in Interest . Cases 31-CA-5977, 6087, and 6143.
June 04, 1966
DECISION AND ORDER
On December 28, 1965, Trial Examiner Wallace E. Royster issued
his Decision in the above-entitled proceeding, finding that Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices within the meaning of the National Labor Relations Act, as
amended, and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Trial
Examiner's Decision. He also found that Respondent had not
engaged in other unfair labor practices alleged in the complaint and
recommended that such allegations be dismissed. Thereafter,
Respondent filed exceptions to the Trial Examiner's Decision and
a supporting brief; General Counsel filed a brief in opposition to
Respondent's exceptions to the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the Act, the
National Labor Relations Board has delegated its powers in con-
nection with this case to a three-member panel [Chairman McCul-
loch and Members Jenkins and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions, the briefs, and the entire
record in the case, and 'hereby adopts the findings,' conclusions, and
i The Respondent has excepted to many of the Trial Examiner's credibility resolutions.
It is the Board's established practice, however, not to overrule a Trial Examiner's resolu-
tions with respect to credibility unless, as is not the case here, the clear preponderance of
all the relevant evidence convinces us that the resolutions were incorrect. Standard Dry
Wall Products, Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3).
159 NLRB No. 106.