Heck's, Inc.

National Labor Relations Board - Board Decisions

May 24, 1968

171 N.L.R.B. 777 (N.L.R.B. 1968)

HECK'S,
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-4185
May 24, 1968
DECISION AND ORDER
BY MEMBERS BROWN , JENKINS, AND ZAGORIA
On August 1, 1967, Trial Examiner Arthur E.
Reyman issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labott
practices and recommending that it cease and de-
sist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent filed exceptions to
the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trim
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, and the
entire record in this case and hereby adopts the
findings, conclusions, and recommendations' of the
Trial Examiner, as modified below.
We agree with the Trial Examiner's conclusion
that the poll of the employees violated Section
8(a)( I) of the Act.2 The evidence clearly indicates
that few, if any, of the employees polled received
assurances that no reprisals would be taken because
of their answers to the poll. Accordingly, and even
without considering the application of Struksnes
Construction Co., Inc.,3 which issued after the
polling in this case, we conclude that this polling
violated Section 8(a)(1) under the standards as set
forth in Blue Flash Express Co.'
In 1965 the Respondent conducted a similar poll
of the employees in the same unit, and the Board
and the court found that polling to be unlawful.
' The Trial Examiner found that Sue Bess, a supervisor , told an employee
that she [Bess] had been told to observe the employees and report any
union activity to the store manager Accordingly , we shall modify the Trial
Examiner 's Recommended Order to reflect the violation of creating an im-
pression of surveillance and delete that portion which indicates a finding
that the Respondent had in fact engaged in surveillance
' The Trial Examiner erroneously recapitulated the results of the
Respondent 's poll. However, as we have found that the poll was coercive
and violative of Section 8(a)( I ) of the Act, the results obtained are im-
material and cannot support any asserted good-faith doubt of the Union's
majority
INC. 777
Heck's, Inc., 159 NLRB 1151, enfd . 387 F.2d 65
(C.A. 4). In that case the complaint also alleged a
violation of Section 8(a)(5) which we dismissed
finding that the union did not represent a majority
of the employees in the unit , noting in footnote I of
that decision that even if majority status had been
attained , the interrogation was not so flagrant that
it necessarily had the object of destroying the
union 's majority status , citing Hammond & Irving,
Inc., 154 NLRB 1071, 1073. Although the Respon-
dent 's conduct was similar herein , we agree with
the Trial Examiner that in the present case the
Respondent violated Section 8(a)(5) and (1) by
refusing to recognize and bargain with the Union.
We cannot , at this time , overlook a course of
conduct engaged in by this Employer on a com-
panywide scale. The Board has, in eight different
cases, found this Employer has violated the Act.,'
The violations have included polling similar to that
in the instant case , threats, interrogation , and dis-
criminatory discharges . The Respondent operates
several retail stores , all located in western Virginia,
and nearby Ashland , Kentucky , and most , if not all,
of these stores have been the site of unlawful con-
duct. Employees at all stores receive a monthly
company publication , which , on occasion , has been
utilized to comment upon union organizational
developments .' President Haddad actively par-
ticipated in conduct found to be unlawful in five of
the cases set forth in footnote 5, although not in the
instant case . Vice President Darnall has engaged in
unlawful conduct in five of these cases , and has
again engaged in unlawful conduct in the present
case.
It is clear that the Respondent has the same labor
relations policy affecting all employees at all of its
stores,' and this policy is based , in part , on opposi-
tion to the freedom of choice by its employees in
regard to collective bargaining . It is also apparent
that the company newsletter , the proximity of the
stores , and the active participation of top company
officials in carrying out this illegal labor policy, all
have the effect of emphasizing individual incidents
of unlawful conduct . The repetition of conduct
which had earlier been found unlawful at this same
store, and to many of the same employees , further
indicates a disregard for the policies of the Act, and
' 165 NLRB 1062
4 109 NLRB 591
' Heck's Discount Store, 150 NLRB 1565, enfd 369 F 2d 370 (C A 6),
Heck's Inc , 156 NLRB 760, enfd . in part 386 F2d 317 (C A 4), Heck's
Inc, 158 NLRB 121, enfd 387 F 2d 65 (C A 4), Heck's Inc, 159 NLRB
1151, enfd 387 F 2d 65 (C A 4), Heck's Inc , 159 NLRB 1331, adj udica-
tion in civil contempt denied 388 F 2d 668 (C A 4), Hecks Inc , 166
NLRB 186; Heck's Inc, 166 NLRB 674, Heck's Inc., 170 NLRB 178.
Heck's Inc, 159 NLRB 1151, 1156 at fn, 16
Ibid
171 NLRB No. 112
778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the impact of such repeated conduct therefore is
much greater than in the initial incident.
Upon review of all the relevant factors herein, we
conclude that the Employer's unlawful conduct in
this case is amplified by, and is part of, its com-
panywide antiunion policy,' and its impact must be
evaluated in the context of its prior flagrant unlaw-
ful practices. Such conduct clearly reflects a rejec-
tion of the collective-bargaining principle. As we
have found that the Union did in fact represent a
majority of the employees, we conclude that the
Employer's conduct in this case was designed solely
to avoid its collective-bargaining obligation, and a
bargaining order is an appropriate remedy for its
violation of Section 8(a)(5) and (I) of the Act.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, as
modified herein, and orders that the Respondent,
Heck's, Inc., Huntington, West Virginia, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended
Order, as so modified:
1. Delete from paragraph 1(b) the words "en-
gaging in" and substitute therefor the words "creat-
ing the impression of ..."
2. Delete from paragraph 2(b) that part thereof
which reads "to be furnished" and substitute
therefor "on forms provided ..."
' See N L R B v Overnite Transportation Co, 308 F 2d 284 , 286-287
(C A 4), enfg 129 NLRB 261
' Ha,n,nond & Irving, Incorporated , 154 NLRB 1071
TRIAL EXAMINER'S DECISION
ARTHUR E. REYMAN, Trial Examiner: This is a
proceeding under Section 10(b) of the National
Labor Relations Act, as amended, 29 U.S.C. 151, et
seq., herein called the Act.
On February 13, 1967, Food Store Employees
Union, Local No. 347, Amalgamated Meat Cutters
and Butcher Workmen of North America,
AFL-CIO, herein sometimes called the Union, filed
a charge against Heck's, Inc., herein sometimes
called the Respondent or the Company, the charge
setting forth certain acts alleged to have been com-
mitted by the Respondent resulting in unfair labor
practices within the meaning of Section 8(a)(1)
and (5) of the Act. On April 21, 1967, the General
Counsel of the National Labor Relations Board, on
behalf of the Board, by the Regional Director for
Region 9, pursuant to Section 10(b) of the Act
and Section 102.15 of the Board's Rules and Regu-
lations, Series 8, as amended, issued a Complaint
and Notice of Hearing, the complaint alleging, inter
alia, that the Respondent had engaged in and was
engaging in unfair labor practices within the mean-
ing of Sections 8(a)(1) and (5) and 2(6) and (7) of
the Act. The Respondent filed timely answer to the
complaint effectively denying that it had engaged in
or was engaging in unfair labor practices, as alleged
in the complaint. Pursuant to Notice of Hearing,
this case came on to be heard before me at
Huntington, West Virginia, on June 13, 1967. The
hearing was closed on the same day. At the hearing,
the General Counsel and the Respondent were
represented by counsel and the Charging Party, the
Union, was represented by two of its representa-
tives. Each party was afforded full opportunity to
be heard, to call, examine, and cross-examine wit-
nesses, to introduce evidence pertinent to the is-
sues , to present oral argument, and to file briefs.
Briefs filed on behalf of the General Counsel and
the Respondent after the hearing have been care-
fully considered.
Upon the entire record, and from my observation
of the witnesses appearing before me, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a West Virginia corporation
engaged in the retail sale of various merchandise in-
cluding ready-to-wear clothing, sporting goods,
hardware, household goods, toys, and cosmetics at
various locations in the States of West Virginia and
Kentucky. The Respondent's Huntington, West Vir-
ginia, Fifth Avenue store is the only location in-
volved in this proceeding. During the 12 months
immediately preceding the issuance of the com-
plaint herein, a representative period, the Respon-
dent in the course and conduct of its business
operations had a gross volume of retail sales in ex-
cess of $500,000. During the same period, the
Respondent had a direct inflow, in interstate com-
merce, of materials, goods, and products valued in
excess of $50,000, which it purchased and had
shipped directly to it in West Virginia from points
outside of that State.
At all times material herein, the Respondent is
and has been an employer as defined in Section
2(2) of the Act, engaged in commerce and in
operations affecting commerce as defined in Sec-
tion 2(6) and (7) of the Act, respectively.
II. THE UNION INVOLVED HEREIN
Food Store Employees Union, Local No. 347,
Amalgamated Meat Cutters and Butcher Workmen
of North America, AFL-CIO, is and has been at all
times material herein a labor organization as
defined in Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
HECK'S, INC. 779
Union Organizational Efforts
In the latter part of December 1966, after the
Union began an organizational drive among the
Respondent 's employees at its Huntington Fifth
Avenue store , Jack L . Brooks, business representa-
tive of the Union , on January 16, 1967 ,' together
with Russell Skaggs and Woodrow R. Gunnoe, two
other business representatives of the Union , called
at the Fifth Avenue store; Gunnoe and Skaggs en-
tered and Brooks followed them into the store 2 or
3 minutes later . Skaggs and Gunnoe , after they had
entered the store , distributed a letter to the em-
ployees; Brooks followed them into the store and
passed out another letter , and after Brooks had
passed out several of the copies of the letter held by
him, Tim Crager , the store manager, approached
him and told him that he could not distribute such
literature within the store . Brooks testified , as fol-
lows:
Mr. Crager told me I could not pass the letters
out. And I told him I was sorry but I had al-
ready passed them out. And I asked him who
he was, the manager or the assistant manager.
And he replied that he was the manager. And I
extended my hand to him and introduced
myself. Also introduced him to Mr. Gunnoe
who was standing along beside me. I told him
that we represented a majority of these em-
ployees at the Fifth Avenue store in a unit con-
sisting of all employees , including office cleri-
cal employees , but excluding guards, depart-
ment heads , and supervisors as defined in the
Act. And I was asking him for recognition and
bargaining on behalf of those employees. I also
stated to him that I had the cards with me for a
checking if he desired to see them . He said he
didn't think there would be any need for that
because he couldn 't recognize the Union. And
before that could be done he would have to get
in touch with the main office. I told him that
would be all right , that we could wait for his
answer . So he asked if we could wait a few
minutes and he excused himself and went to
the office . He came back in about 5 minutes
and told us that he had not been able to reach
Mr. Fred Haddad [president and general
manager of the Company ] or Mr . Holroyd [at-
torney for the Company] .... Mr. Crager said
that he had not been able to reach either one
of them and he would not be able to recognize
us. And I said, well , are you refusing to recog-
nize the Union as a representative of the em-
ployees. He said , I think that had better be
done by the main office . And Mr . Gunnoe
spoke up about that time. And offered to show
him the cards . In fact , he reached in his pocket
and extended the cards to him and asked that
he check them. And he refused, saying that I
don't doubt that you have the majority, but I
can't recognize a union. It will have to be done
by the main office. I asked Mr. Crager if he
would tell whoever he must that we were in
and asked for recognition in bargaining. He
said that he would and he asked where he
could get in touch with us. And I gave him our
mailing address and also our telephone
number. He said that he would notify the Com-
pany. We left the store at about 4:05 p.m.
The testimony of Gunnoe is in accord with that
of Brooks, Gunnoe relating the passing out of the
letter of January 12 by him and Skaggs and being
told by the assistant manager at the store that "I
could not pass that junk out in the store." Gunnoe
and Skaggs overheard the conversation between
Brooks and Crager.
Under date of January 17, Brooks addressed a
letter to Haddad to Nitro, West Virginia, which
read as follows:
Dear Sir:
This letter will confirm the conversation I
had yesterday with your store manager of the
Fifth Avenue store in Huntington, West Vir-
ginia . I informed Mr. Crager that our Union
represented a majority of his employees at the
Fifth Avenue store in a unit consisting of all
employees including office clerical employees,
but excluding department heads, guards and
supervisory employees. It will also confirm that
the employee's authorization cards were of-
fered to him and extended to him for his
checking against the payroll to prove our
majority status. It will further confirm that I
asked him for recognition and bargaining on
behalf of the employees in the above-named
unit.
Mr. Crager told me that he could not grant
us recognition-that it would have to come
through the main office. He also stated that the
checking of the authorization cards would have
to be done through the main office. I asked
Mr. Crager to pass our demand on to you, and
he said that he would do this. I am again mak-
ing the same demand by this letter.
Please advise.
No answer from the Company was ever received by
the Union.
The complaint alleges that all employees of the
Respondent's Huntington, West Virginia, Fifth
Avenue store, including office clerical employees,
but excluding the store manager, assistant store
manager, and all guards, professional employees,
and supervisors as defined in the Act, constitute a
unit appropriate for collective bargaining within the
meaning of Section 9(b) of the Act. The unit was
' Unless otherwise specifically noted , all dates hereinafter mentioned are
for the year 1967.
780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stipulated to be a proper one in this case, it being of
the same description as that involved between the
same parties in 159 NLRB 1151. The Respondent
submitted a payroll list for the payroll period
beginning January 15 and ending January 28 bear-
ing the names of some 38 employees, the date em-
ployed, and termination dates. Thirty-eight names
of employees appear on this list, including the
names of seven employees who, the parties stipu-
lated, were supervisors within the meaning of the
Act.' On January 16, when the three union
representatives appeared at the Fifth Avenue store,
they had signed authorization cards from em-
ployees in their possession, these 19 cards having
been signed on various dates between December
28, 1966, and January 10, 1967.
On January 17, the day Business Representative
Brooks addressed his letter to the company pre-
sident, the unit, excluding seven agreed-upon su-
pervisors and Morrison, would have consisted of 30
employees, 16 of whom would have constituted a
majority within the unit' Thus, without regard to
the supervisory status of Morrison, whose name ap-
pears in the margin hereof, the unit would have
been comprised of 31 employees, a majority would
be 16 employees, showing that the Union held a
margin of 3 signed cards over the necessary majori-
ty. Therefore, the Union held a card majority of 4.
The signatures on the cards were obtained through
the solicitation of Gunnoe and Skaggs , sometimes
singly or sometimes by the two of them. The signa-
tures affixed to these cards were by each individual
employee, away from his or her place of employ-
ment , usually at the home of the employee. The
authenticity of the cards is established by the
testimony of the union representatives. I. Taitel &
Son, 119 NLRB 910, 912, 261 F.2d I (C.A. 7),
cert. denied 359 U.S. 944; Hopcon, Inc., 161 NLRB
31, Biles-Coleman Lumber Co., 4 NLRB 679, 689,
98 F.2d 18 (C.A. 9). Here there is no claim or
proof that misrepresentations were made in secur-
ing the employees ' signatures . Cf. N.L.R.B. v.
Winn-Dixie Stores, Inc., 341 F.2d 750, 755 (C.A.
6), cert. denied 382 U.S. 830 (143 NLRB 848).4
I find that the Union held a clear majority on
January 16 and 17, and thereafter. Section 8(a)(5)
of the Act requires an employer "to bargain collec-
tively with the representatives of his employees,
subject to provisions of Section 9(a)." Section 9(a)
provides that "representatives designated or
selected for the purpose of collective bargaining by
the majority of the employees in a unit appropriate
for such purposes, shall be the exclusive representa-
tive of all the employees in such unit for the pur-
poses of collective bargaining ... " Although Sec-
tion 9(c)(1) provides machinery by which the
question of representative status may be deter-
mined in a Board-conducted election, it has long
been settled that an election is not the only means
by which representative status may be established.
See United Mine Workers v. Arkansas Oak Flooring
Co , 351 U S. 62, 71-72, and cases cited at footnote
8 therein. There is no absolute right vested in an
employer to demand an election. Where a union
has obtained authorization cards signed by a
majority of the employees in an appropriate unit,
designating the union as their bargaining represen-
tative, an employer violates Section 8(a)(5) if, ab-
sent a good-faith doubt of the union's majority
status, he refuses to bargain with the union Al-
legheny Pepsi-Cola Bottling Co. v N.L.R.B., 312
F.2d 529, 532 (C.A. 3), N.L.R.B. v. Barney's Su-
percenter, Inc., 296 F.2d 91, 94; N.L.R.B. v. Dahl-
strom Metallic Door Company, 112 F.2d 756, 757
(C.A. 2). The Company is not excused from the
obligation to bargain because the Union filed a
petition for representation and later withdrew its
petition to file the unfair labor practice charge in
the instant case. N.L.R.B. v. Harry Epstein, 203
F.2d 482 (C.A. 3), cert. denied 347 U.S. 912;
N.L.R.B. v. Gotham Shoe Mfg. Co., Inc., 359 F.2d
684 (C.A. 2).
The Company Conducted Poll
Ray O. Darnall, company vice president in
charge of operations and personnel manager,
testified that after receiving the January 17 letter of
Brooks, he "came to Huntington and conducted a
poll of all the employees in the Fifth Avenue
store." He said that he polled each individual em-
ployee; that he had written down "exactly what I
was going to say to the employees. Because we had
had an unfair labor practice charge thrown at us on
a previous occasion. So I wanted to be sure that I
did read exactly what I had to say to the em-
'
The name of another employee , Louise Morrison, also appears upon
this list The General Counsel and the Union contended that employee
Morrison, as head cashier at the time the demand for recognition was
made , was a supervisor , the Respondent , on the other hand, then
questioned whether she was a supervisor because she had not at the time
been made head cashier Later, during the course of the hearing the parties
agreed by stipulation that at all times material herein employee Louise
Morrison was a supervisor as defined in the Act and hence should be ex-
cluded from any found appropriate unit
, These cards are in evidence Linda Berry , an employee within the unit,
signed a card which is dated January 29 The form of the authorizations
signed by the employees is as follows
APPLICATION
FOOD STORE EMPLOYEES UNION, LOCAL NO 347
P 0 Box 2751 Telephone 346-9679 Charleston, W Va
The undersigned hereby authorizes this union to represent his or her
interest in collective bargaining concerning wages , hours, and working
conditions
This form contained blank spaces for the Company 's name, the name of the
employee , the conipany address , the street address of the employee, the
date of the card , the name of the city and State , a line for the signature of a
witness , and another line for the telephone number of the employee
4 On February 2, the Union filed a petiton for certification of representa-
tive of the employees in the bargaining unit described above, such petition
thereafter being allowed to be withdrawn or dismissed upon the filing of the
unfair labor practice charge Case 9-RC-7134
HECK'S, INC.
ployees." He said that the statement he proposed to
read and later did read to the employees was writ-
ten by him in his office before leaving Charleston,
was written on January 21, that the language was
his own and made by him without consultation with
any other person. This statement, which he said was
read January 21 to individual employees at the
Huntington Fifth Avenue store, was as follows:
As you must know the Union has made a de-
mand on the Company stating that they
represent the majority of the employees. I am
going to ask you a question but, before I ask I
want you to know that you do not have to
answer and it will not have any effect on your
job. Do you want the Union to represent you?
This statement was carried on a clipboard with the
list of all of the names of the employees at the
store. In the words of Darnall: "I had the list of the
employees on the clipboard with me. At the same
time I also had the question that I was going to ask
them on the same clipboard. And I read this to
them. And when they gave me their answer I put
their comment out from their name."
Thirty-seven employees, including the eight su-
pervisors, were read this question and their answers
recorded. The result was 22 noes, 12 yeses, and 3
"no comment." Each of the eight supervisory em-
ployees were recorded as having said "no."
In response to a question from counsel for the
Respondent as to whether he had formed an
opinion as a result of taking the poll in reference to
the Union's demand and its claim that it
represented a majority of the employees, Darnall
said "from this poll I determined that the Union did
not represent a majority of our employees."
The record does not disclose whether, in forming
his opinion, Darnall excluded the then seven recog-
nized supervisors and the three "no comment" an-
swers given to him. If he had, obviously the result
of the poll would show 12 "yes" against 12 legiti-
mate " noes ." Had he considered Morrison a super-
visor in his count, as she was, then a union majority
would have been shown by his own count.
The manager of the Fifth Avenue store, Tim
Crager,5 testified that he accompanied Darnall
when the latter questioned the employees about
whether or not they wanted a union to represent
them and heard what he said and heard their an-
swers. In the words of Crager:
He went to each employee and asked him, told
them he would like to ask them a question,
said as you may or may not know that the
Union has made a demand on the Company.
And says you don't have to answer the
question. And it would [not] affect their job.
And he did state that they did or did not have
to answer the question.
John Schoolcraft, an employee in the hardware
department, testified that he had signed a union
781
authorization card. In respect to the poll, he
testified:
Well, Mr. Darnall called me over to ask me a
question. He said he had a question he'd like to
ask me. And I don't recall the exact words, but
something to the effect that he presumed that I
knew about the Union activity and that he
wanted to know my opinion of whether I would
want the Union to represent me or Heck's to
represent me. And I answered yes, that I would
like the Union to represent me. . . . Mr. Dar-
nall had a clip board with a yellow clip pad on
it with names in columns. I assumed it was
names of people in the store. And he made a
mark out from my name.
Schoolcraft was emphatic in denying that either
Darnall or Crager had told him that his job would
not be affected by his answer to the question
presented to him.
Denver Holley, an employee in the hardware de-
partment, testified that he had signed a union
authorization card and that he was questioned by
Darnall and Crager in the stockroom of the store.
He said:
As I walked back into the stock room, it was
about 3 or 3:15, 3:20, I don't remember the
exact time, I saw Mr. Darnall and Mr. Crager
back there. Well, he also saw me, and Mr. Dar-
nall told me, he said, Mr. Holley, I don't be-
lieve I've got you yet. And I said, no, sir, you
haven't. He walked up to me and he said, you
want the Union to represent you. And I said,
yes, I do. He said, thank you, Mr. Holley. And
that was all that was said.
Richard Blevins, an employee in the warehouse
and a truckdriver, testified that he had signed a
union card; that he was approached by Mr. Craver
and "another gentleman" who " . . . asked me if I
wished to have the Union represent me as bargain-
ing agent. I told them yes. And that was all the
question that was asked me concerning that." He
did not recall either of the two men who spoke to
him saying that without regard to how he answered,
his job would not be affected.
Margie Holley, the wife of Denver Holley, em-
ployed in the clothing department, testified that she
had signed a union authorization card and also had
obtained the signature of Virginia Edwards to a
card which she said Edwards had signed in her
presence. She testified further that on January 21,
about 3:13 p.m., she was approached by Darnall
and Crager; that Darnall told her he wanted to
speak to her for a moment, asked her if she wanted
the Union to represent her, that she replied "yes,"
and he thanked her and walked away.
Linda Jett Harshbarger, employed as a cashier
for approximately 9-1/2 months, testified that she
had signed a union authorization card at her home
at the request of Skaggs and Gunnoe and was
' This name appears in the transcript of this case as here spelled In the
Respondent 's brief and elsewhere it is spelled "Creager "
782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
questioned by Darnall and Crager. She said that
Darnall came up and questioned her, that he had a
clip board, that he was talking about something,
and that "all I could make out was whether I
wanted the Union to represent me And I told him
that I had signed it. And by that I meant I'd sign the
union card. And that was all. He said, thank you, I
believe, and walked on." In answer to a question as
to whether Darnall had asked her anything before
he asked her if she wanted the Union to represent
her, she said "he was, he had something on a clip
board and he was talking about it and pointing to it.
But I didn't pay much attention." She said she
noticed he had some names "where he was
checking off."
It should be noted that in connection with the
testimony of the above-named witnesses who in ef-
fect testified that Darnall had not read the
complete statement before he asked the question
he said he did, on cross-examination counsel for
Respondent (properly) attempted to establish that
at the time each of these employees signed a union
card, the union representatives represented to them
that there would be an election to determine
whether the employees desired to have the Union
represent them as their bargaining agent. The most
I can draw from the result of the cross-examination
is that the union representatives explained that the
Union could be designated either by a card majori-
ty or could adopt the election procedure. I have no
doubt concerning the credibility of each one of
these witnesses and cannot find that any one of
them signed a card by reason of a representation
that the purpose of the card was to secure an elec-
tion to determine the representation question.
In the category of cases such as the instant one,
there can be no doubt that when an employer
inquires into an employee's union activities the in-
terrogated employee naturally will fear that the em-
ployer not only wants this information concerning
the extent of his union interest and activities, but
also may have in mind the use of that information
as a basis of some form of reprisal against the em-
ployee.
Interrogation as to union, as to union sympathy,
and affiliation has been held to violate the Act
because of its natural tendency to instill in the
minds of employees fear of discrimination on the
basis of the information the employer has obtained.
N L.R.B. v. West Coast Casket Company, 205 F.2d
902, 904 (C.A. 9). As stated in N.L.R.B. v. Essex
Wire Corporation of California, 245 F.2d 589, 592
(C.A. 9), whether the company would be disposed
to make such use of the [information] is beside the
point. As long as the opportunity is present, em-
ployees may have a real fear that this would be
done. The legality of an employer poll, it has been
held, depends upon the manner in which the poll is
conducted and the circumstances surrounding the
taking of the poll. Blue Flash Express Co , 109
NLRB 591, Daniel Construction Company v.
N.L.R.B., 341 F.2d 805, 812-813 (C.A. 4), cert.
denied 382 U.S. 831, N.L.RB v. Lexington Chair
Company, 361 F.2d 283, 289-290 (C.A. 4);
N.L.R.B v. McCormick Concrete Company of S.C.,
371 F.2d 149, 151 (C.A. 4), N.L.R.B v. Camco,
Inc., 340 F.2d 803, 805-806 (C.A. 5), cert denied
382 U S. 926.
Here the parties have, in connection with their
respective positions, noted Blue Flash Express Co.,
supra, wherein certain conditions are said to be
relevant: (I) Whether the employer has a legiti-
mate interest in conducting the poll, i.e , to ascer-
tain the extent of support for a union claiming to be
a majority representative; (2) whether the em-
ployer conveys to the employees this legitimate
purpose; (3) whether assurances are given em-
ployees that no reprisals will be taken against them
because of their answers to the poll; (4) the at-
mosphere in which the poll is taken; (5) the
method in polling, the time and place of the
questioning, the identity of the interrogator; and
(6) the truthfulness of the employees' answers.
In Struksnes Construction Co., Inc., 165 NLRB
1062, the Board set forth uncoercive methods
which an employer may adopt to verify a union's
majority. In that case the Board wrote:
We have therefore determined, in the light
of all the foregoing considerations, and in ac-
cord with the court's [C.A.D.C.] remand, to
adopt the following revision of the Blue Flash
criteria.
Absent unusual circumstances, the
polling of employees by an employer will
be violative of Section 8(a)( I) of the Act
unless the following safeguards are ob-
served: (1) the purpose of the poll is to
determine the truth of a union's claim of
majority, (2) this purpose is commu-
nicated to the employees, (3) assurances
against reprisal are given, (4) the em-
ployees are polled by secret ballot, and
(5) the employer has not engaged in un-
fair labor practices or otherwise created a
coercive atmosphere.
Obviously, the Respondent here has not met the
criteria. As was said in N.L R.B. v. Camco, Inc.,
supra at 806, "the Board could reasonably infer
that they the employees] were answering under
pressure."
The poll, as conducted by Vice President Darnall
and Store Manager Crager when they called each
employee questioned away from his or her work
station and recorded the employee's answer on a
pad of paper, acted in a manner which created an
"aroma of coercion" condemed by the Act. Joy Silk
Mills, Inc. v. N.L.R.B., 185 F.2d 732, 740
HECK'S, INC.
(C.A.D.C.), cert. denied 341 U.S. 914.6 It fairly
may be said that the Respondent is not unso-
phisticated in respect to the difference between
proper and improper interrogation.
I find that the poll of employees conducted by
the Respondent on January 21 constituted an unfair
labor practice within the meaning of Section
8(a)( I) of the Act, and was calculated to impinge
upon the rights of employees guaranteed in Section
7 of the Act.
Surveillance
At the hearing, counsel for the General Coun-
sel moved to amend the complaint by including the
name of Sue Bess as department head of toys and
to allege that the conduct of Bess, on or about June
3, 1967, in informing employees of the Respondent
that she had been requested by Store Manager
Crager and Assistant Store Manager David to spy
on the employees' union activities and to report
such back to them in order to discourage Respon-
dent's employees' activities on behalf of the Union,
was violative of Section 8(a)(I).
Bess did not testify at the hearing. Crager, in
answer to the question as to whether he had ever
told Bess that she should spy on the employees'
union activities and report any such activities to
him, replied "not that I've ever known of"; and
when asked if David had ever done this in his hear-
ing, or had instructed her to do this within the hear-
ing of Crager, Crager replied "No, sir. Not that I
know of at all." Being pressed by counsel for the
Respondent as to whether specifically on January 3
he had told Bess that she should spy on the em-
ployees' union activities "and report such activities
to you in order to discourage the employees' activi-
ties on behalf of the Union" he replied "No, sir.
Not that I know of at all." He said that Bess had
never reported any union activity to him on the
part of employees nor had David ever in his hearing
requested any employees or any supervisors to spy
on the employees' union activities.
Margie Holley, an employee for about 4 years,
testified to a conversation she had with Supervisor
Sue Bess in the clothing department of the store
some time around January 3 or 4. In answer to a
question as to what Bess had told her on that occa-
sion she testified:
She came downstairs and said Mr. Crager had
had her up in his office. And she told me, she
said, I'm scared to death. Mr. Crager just had
me in the office and told me that if he found
out that any of the department heads had
signed for the Union that he would fire them
The Board has in, the past issued five unfair labor practice decisions
against Respondent ; six other cases have not yet culminated in a Board
decision See N L.R B v Heck'., Inc., 369 F 2d 370 (C A 6), enfg 150
NLRB 1565, N.L R B v Heck's Inc (No 11,390 (C A 4)), consent
decree entered June 13, 1967, N.L. R B v HecA's Inc (No 11,062 (C.A
4)), decision pending before the Court , N L.R.B v Heck's Inc (No
11,391 (C.A 4 )), petition for enforcement filed In three other cases, the
783
and there wouldn't be nothing anybody can do
about it. And she asked me if I would tell Mr.
Skaggs and have him get in touch with her.
And I told her I would .... I told her that I'd
have Ronnie call her and tell her that, if she
thought there was any way she could get in
trouble over signing a union card by him claim-
ing she was a department head.
Mrs. Holley testified further that on a later date,
perhaps about a week before the union representa-
tives had called at the store, Bess " . . . told me he
had asked her to watch out and listen for the em-
ployees and let him know if she heard them
discussing or trying to get anybody to sign up for
the Union." On cross-examination, Mrs. Holley
said:
Q. (By Mr. Holroyd): ... Now, would you
tell us again exactly what she said in reference
to what Mr. Crager had told her?
A. Now, I didn't have that conversation with
her about what he told her upstairs, that he
could fire anybody, that was at the store, when
she came out of his office she told me that.
Because she was nervous and scared.
Q. She told you that she wanted to get in
touch with Mr. -.
A. Wanted me to have Mr. Skaggs call her
because Mr. Crager had called her up in the
office and told her that if he found out that any
of the department heads had signed up or
anything to do with the Union that he could
fire them and there wouldn't be nothing any-
body could do about it. And she came right
straight downstairs and told me.
Q. Would you tell us what she said to you
when she discussed the Union with you?
A. That she was afraid to let Mr. Crager
know or let on like she had signed a union card
because she was afraid they would fire her.
And she is the sole support of herself and her
little girl.
Q. This wasn't in that conversation when
she was nervous and had just gotten through
talking?
A. No, not then. That's at another time that
we were talking about the Union.
Q. Well, what else did she say about the
Union that you recall?
A. That was all, that I told you awhile ago.
As noted, Bess did not appear to testify. The
testimony of Crager regarding his alleged instruc-
Trial Examiners' Decisions have issued findings that Respondent has en-
gaged in still other unfair labor practices and these cases are presently be-
fore the Board (Board Cases 9-CA-3556, 3477, and 3728) In three addi-
tional cases, the unfair labor practice hearings have been held and the Trial
Examiners' Decisions are pending (Board Cases 9-CA-3828, 4147, and
4185, the instant case)
784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions to Bess, as reported by Mrs. Holley, was
equivocal and to my mind unsatisfactory. In these
circumstances, I credit the testimony of Mrs. Holley
and find that the evidence herein supports the
amendment to the complaint.
Concluding Findings
I find that all employees of Respondent's
Huntington, West Virginia, Fifth Avenue store, in-
cluding office clerical employees, but excluding the
store manager, assistant store manager, and all
guards, professional employees, and supervisors as
defined in the Act, constitute a unit appropriate for
collective bargaining. I find that on or about Janua-
ry 16, 1967, and at all times thereafter, the Union
has been, and is now, the exclusive collective-bar-
gaining representative for the purpose of bargaining
with the Respondent as to rates of pay, wages,
hours, and other terms and conditions of employ-
ment of all employees in the unit; that the Union on
January 16 orally and January 17 in writing
requested the Respondent to recognize and bargain
with it as the exclusive bargaining representative of
the employees in the described unit; and that since
or about January 16, the Respondent has refused
and continues to refuse to bargain collectively in
good faith with the Union as the exclusive represen-
tative of the employees in the bargaining unit.
I find that the company conducted poll by Dar-
nall in company with Crager on January 21 con-
stituted unlawful interrogation amounting to inter-
ference, coercion, and restraint of employees in
violation of Section 7 and Section 8(a)(1) of the
Act; and that the conduct of Bess in informing Mrs.
Holley and inferentially other employees of the
Respondent that she, Bess, had been requested by
Store Manager Crager and Assistant Manager
David to spy on the employees' union activities and
to report such back to them in order to discourage
the Respondent's employees' activities on behalf of
the Union constituted unlawful interference, coer-
cion, and restraint in violation of Section 8(a)(1) of
the Act.
It further is found that the refusal of the Respon-
dent to bargain collectively in good faith with the
Union as the representative of the Respondent's
employees in an appropriate bargaining unit was,
and continues to be, a violation of Section 8(a)(5)
of the Act.
Upon the foregoing findings of fact, I make the
following:
CONCLUSIONS OF LAW
1. The Respondent is an employer as defined in
Section 2(2) of the Act, engaged in commerce and
in operations affecting commerce as defined in Sec-
tion 2(6) and (7) of the Act.
2. The Union is a labor organization as defined
in Section 2(5) of the Act.
3. All employees of Respondent's Huntington,
West Virginia, Fifth Avenue store, including office
clerical employees, but excluding the store
manager, assistant store manager, and all guards,
professional employees, and supervisors as defined
in the Act constitute a unit appropriate for collec-
tive bargaining within the meaning of Section 9(b)
of the Act.
4. At all times material the Union has been and
still is the exclusive representative of all the em-
ployees in the aforesaid unit for the purposes of
collective bargaining within the meaning of Section
9(a) of the Act.
5. By refusing since January 16, 1967, to bargain
with the Union as the exclusive representative of its
employees in an appropriate unit, the Respondent
has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(5) and (1)
of the Act.
6. By interrogation of employees about their
union activities, threatening reprisals for such ac-
tivities, and by taking a poll of its employees for the
purpose of determining their interest in, and activi-
ties on behalf of, the Union, the Respondent has in-
terfered with, restrained, and coerced its employees
in the exercise of the rights guaranteed in Section 7
of the Act and has engaged in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent described 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
It having been found that the Respondent has
violated and is violating Section 8(a)(1) and (5) of
the Act, it will be recommended that the Respon-
dent cease and desist therefrom and take certain af-
firmative action designed to effectuate the policies
of the Act.
It having been found that the Respondent refused
to bargain and continues to refuse to bargain in
good faith with the Union, which represents a
majority of the employees in an appropriate unit, it
will be recommended that the Respondent be or-
dered to bargain, upon request, in good faith with
the Union as the exclusive representative of the em-
ployees in the appropriate unit.
RECOMMENDED ORDER
Upon the entire record in the case, and the
foregoing findings of fact and conclusions of law, it
is recommended that the Respondent, Heck's, Inc.,
HECK'S, INC.
Huntington , West Virginia , its officers , agents, suc-
cessors , and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain concerning rates of pay,
wages, hours of employment , or other conditions of
employment with Food Store Employees Union,
Local No. 347, Amalgamated Meat Cutters and
Butcher Workmen of North America , AFL-CIO, as
the exclusive representative of all employees in its
Huntington , West Virginia , store , including office
clerical employees , but excluding the store
manager , assistant store manager , and all guards,
professional employees , and supervisors as defined
in the Act, a unit appropriate for collective bargain-
ing within the meaning of Section 9(a) of the Act.
(b) Coercively interrogating employees about
their union activities , threatening reprisals for such
activities , or engaging in surveillance of the activi-
ties of such employees in respect to their interest
in, activities on behalf of, or membership in the
Union.
(c) In any like or related manner interfering
with, restraining , or coercing its employees in the
exercise of their right to self-organization , to form,
join , or assist the above-named Union , or any other
labor organization , and to engage in other con-
certed activities for the purpose of collective bar-
gaining or other mutual aid or protection, or to
refrain from any or all such activities , except to the
extent that such right may be affected by the
proviso to Section 8(a)(3) of the Act.
2. Take the following affirmative action , which is
found necessary to effectuate the policies of the
Act:
(a) Upon request , bargain collectively in good
faith with Food Store Employees Union , Local No.
347, Amalgamated Meat Cutters and Butcher
Workmen of North America , AFL-CIO, as the ex-
clusive representative of all employees of the
Respondent in its Huntington , West Virginia, store,
including office clerks , but excluding guards,
professional employees , and supervisors as defined
in the Act, with respect to rates of pay, wages,
hours of employment , and other conditions of em-
ployment , and, if an understanding is reached, em-
body such understanding in a signed agreement.
(b) Post at its store in Huntington , West Vir-
ginia, copies of the attached notice marked "Ap-
pendix ." Copies of said notice , to be furnished by
the Regional Director for Region 9. after being duly
r In the event that this Recommended Order is adopted by the Board, the
words "a Decision and Order " shall be substituted 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 Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order."
785
signed by Respondent's representative, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not al-
tered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 9, in
writing, within 20 days from the receipt of this
Decision, what steps have been taken to comply
herewith.'
' 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 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 Na-
tional Labor Relations Act, as amended, we hereby
notify our employees that:
WE WILL bargain in good faith, upon
request, with Food Store Employees Union,
Local No. 347, Amalgamated Meat Cutters
and Butcher Workmen of North America,
AFL-CIO, as the exclusive representative of all
employees in the bargaining unit described
below in respect to rates of pay, wages, hours
of employment, or other conditions of employ-
ment, and, if an understanding is reached, em-
body it in a signed agreement. The bargaining
unit is:
All employees at our Huntington, West
Virginia, store, including office clerks, but
excluding guards, professional employees,
and supervisors as defined in the Act.
WE WILL NOT coercively interrogate our em-
ployees about their union activities, threaten
reprisals for such activities, or create the im-
pression of surveillance thereof.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our em-
ployees in the exercise of their right to self-or-
ganization , to form, join, or assist Food Store
Employees Union, Local No. 347, Amalga-
mated 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 other concerted activities for the
purposes of collective bargaining or other mu-
786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tual aid or protection or to refrain from any or
all such activities, except to the extent that
such right may be affected by the proviso to
Section 8(a)(3) of the Act.
HECK'S, INC.
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecu-
tive days from the date of posting 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 2407 Federal Office Building, 550
Main Street, Cincinnati, Ohio 45202, Telephone
684-3663.