Heck's, Inc.Download PDFNational Labor Relations Board - Board DecisionsMay 24, 1968171 N.L.R.B. 777 (N.L.R.B. 1968) Copy Citation 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. Copy with citationCopy as parenthetical citation