Heck's Inc.

National Labor Relations Board - Board Decisions

Sep 24, 1968

172 N.L.R.B. 2231 (N.L.R.B. 1968)

HECK'S INC.
Heck 's Inc. and Amaigmated Meat Cutters and
Butcher Workmen of North America , Food Store
Employees Union , Local No. 347, AFL-CIO.
Cases 6-CA-3989 and 6-RM-326
September 24, 1968
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND ZAGORIA
On May 7, 1968, Trial Examiner Frederick U.
Reel issued his Decision in the above -entitled
proceeding , finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
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 . The Trial Examiner also found that the
Respondent had not engaged in certain other unfair
labor practices . Thereafter, the Respondent filed
exceptions to the Trial Examiner ' s Decision, and
the General Counsel and the Charging Party filed
cross-exceptions and supporting briefs
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 these cases to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed . The rulings are
hereby affirmed . The Board has considered the
Trial Examiner 's Decision , the exceptions and
briefs, and the entire record in the case, and hereby
adopts the findings ,' conclusions , and recommenda-
tions " of the Trial Examiner, as modified below.
' As found by the Trial Examiner , an election was conducted on July 13,
1967, in the following stipulated unit, which we find to he appropriate
All employees of the Respondent 's Clarksburg, West Virginia , store,
excluding supervisors , guards , and professional employees
The Union lost the election by a vote of 19 to 16 , and thereafter filed timely
objections to conduct affecting the election We sustain the Union 's Objec-
tions 1, 2, 3, 5, and 6 , insofar as they related to the Respondent 's unlawful
conduct committed after May 29 , 1967, the date of the filing of the petition
in Case 6-RM-326 Accordingly , as recommended by the Trial Examiner,
we shall set aside the election
1 The Charging Party in its exceptions urges the appropriateness of cer-
tain remedies in addition to those recommended in the Trial Examiner's
Decision We deem it inappropriate in this proceeding to grant this request
to depart from our existing policies with respect to remedial orders and,
therefore, find no merit in these exceptions
1 The General Counsel and the Charging Party have excepted to the Trial
Examiner 's failure to find other alleged violations of Section 8(a)( I) We
deem it unnecessary to pass upon these allegations as such conduct would,
in any event , be cumulative, and would not enlarge the scope of our Order
° In Heck 's Inc, 171 NLRB 777, issued subsequent to the Tnal Ex-
aminer's Decision in this case, the Board stated
It is clear that the Respondent has the same labor relations policy af-
fecting all employees at all of its stores , ( footnote omitted] and this
2231
1. The Trial Examiner found, and we agree, that
the Respondent engaged in numerous violations of
Section 8(a)(1) by conduct which included threats,
interrogation , coercive interviews , and illegal polls t
Such conduct, which took place during May, June,
and July, 1967, prior to the election held on July
13, was directed at 33 of the 38 employees in the
unit.
2. The Trial Examiner found that the Union
represented a majority of the employees in the ap-
propriate unit, but the Trial Examiner further found
that the General Counsel failed to establish that the
Respondent did not have a good -faith doubt as to
the Union 's majority when it refused to bargain,
and, accordingly , he did not sustain the Section
8(a)(5) allegation of the complaint . We find merit
in the exceptions of the General Counsel and the
Charging Party to this finding for the reasons set
forth below.
As already noted , the Respondent engaged in ex-
tensive violations of the Act which directly involved
nearly every employee in the unit. We note further
that the Board has recently found that this Respond-
ent engaged in a pattern of similar unfair labor
practices at its other stores in West Virginia and
Kentucky , and that the Respondent has a labor pol-
icy in all its stores that is opposed to the policies of
the Act.' Earlier Board decisions involving the
Respondent 's operations show that President Had-
dad and Vice President Darnall , who together con-
trol the labor policy at all the Respondent's stores,
have both actively participated at a number of
stores in conduct found to be unlawful .' Both have
repeated their unlawful conduct in the present
cases. Such flagrant repetition of conduct previ-
ously found unlawful shows a complete disregard
by the Respondent of its obligations under the Act.
policy is based , in part , on opposition to the freedom of choice by its
employees in regard to collective bargaining It is also apparent that
the proximity of the stores , and the active participation of top com-
pany officials in carrying out this illegal labor policy, all have the effect
of emphasizing individual incidents of unlawful conduct The repeti-
tion of conduct which had earlier been found unlawful at this same
store, and to many of the same employees , further indicates a disre-
gard for the policies of the Act, and the impact of such repeated con-
duct 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 companywide antiunion policy, (footnote omitted] and its impact
must be evaluated in the context of its prior flagrant unlawful prac-
tices Such conduct clearly reflects a rejection of the collective-bar-
gaining principle
Heck 's, Inc , Ibid, 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 F 2d 317
(CA 4), Heck 's, Inc , 159 NLRB 1151, enfd 387 F 2d 65 (CA 4),
Heck 's, Inc , 159 NLRB 1331, denied adjudication in civil contempt 388
F 2d 668 ( C A 4), Heck 's, Inc, 166 NLRB 186 and 166 NLRB 674, enfd
in part 398 F 2d 337 ( C A 4), Heck 's, inc , 170 NLRB 178 Sec also
Heck's, Inc , 158 NLRB 121, enfd 387 F 2d 65 (C A 4 )
172 NLRB No. 255
2232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In normal circumstances, an election by secret
ballot, if free from improper or unlawful inter-
ference, is a more satisfactory means of determin-
ing employees' wishes than a showing of authoriza-
tion cards Accordingly, an employer who
withholds recognition on the basis of a good-faith
doubt of a union 's majority does not violate Section
8(a)(5) of the Act, but may withhold recognition
until the results of an election resolve his doubt.6 In
order to determine whether an employer's in-
sistence upon a Board election is based upon such a
good-faith doubt, we consider all the relevant cir-
cumstances, including any unlawful conduct of the
Employer, the sequence of events, and the time
lapse between the refusal and the unlawful conduct
In the instant cases, the Respondent's refusal to
grant recognition, followed by its extensive viola-
tions of the Act and its interference with the em-
ployees' free choice in the Board-conducted elec-
tion, clearly evidence its unlawful motive and justi-
fy an inference of bad faith.7 Consequently, we
find, contrary to the Trial Examiner, that the
General Counsel has established that the Respond-
ent's refusal to recognize the Union was not based
on a good-faith doubt of the Union's majority
status. We find further that its refusal was for the
purpose of utilizing the preelection period to un-
dermine the Union's majority, and that the Respond-
ent thereby made it impossible to hold a free and
fair election. Accordingly, we find that the Respond-
ent refused to bargain with the Union in violation
of Section 8(a)(5) and (I) of the Act.
In any event the Respondent's extensive Section
8(a)( I) violations, on which it embarked about the
time the Union attained its majority status and
which made a free and fair election impossible, jus-
tify an order requiring the Respondent to bargain
with the Union upon request as an appropriate
remedy for the Respondent's 8(a)( I) violations "
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board hereby orders that the Respond-
ent, Heck's Inc., Clarksburg, West Virginia, its of-
ficers, agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Unlawfully interrogating employees concern-
ing their union memberships , sympathies , or activi-
ties.
"Aaron Brothers Company of California, 158 NLRB 1077, 1078,
H& W Construc non Company, Inc, 161 N LRB 852, 857
' Hammond & Irving , Incorporated , 154 NLRB 1071, 1073
"Bishop and Malco, Inc , dlbla Walkers, 159 NLRB 1159, Bryant
Chucking Grinder Company, 160 NLRB 1526, 1530 , enfd 389 F 2d 565
(C A 2), Better Val-U Store of Mansfield, Inc , 161 NLRB 762, Fabricators,
Incorporated, 168 NLRB 140
(b) 'Threatening employees that choice of a
union as their collective -bargaining representative
would lead to the closing of the store.
(c) Illegally polling employees in a nonsecret
ballot election to ascertain which employees sup-
port the Union.
(d) Interviewing employees under coercive cir-
cumstances concerning matters relating to unfair
labor practice charges and objections to an elec-
tion.
(e) Refusing to bargain with Amalgamated Meat
Cutters and Butcher Workmen of North America,
Food Store Employees Union , Local No. 347,
AFL-CIO , as the exclusive representative of its em-
ployees in the following appropriate unit:
All employees of the Respondent 's Clarksburg,
West Virginia, store , excluding supervisors,
guards, and professional employees.
(f) In any other manner interfering with,
restraining , or coercing employees in the exercise
of the rights guaranteed them by Section 7 of the
Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the
Act:
(a) Upon request , bargain collectively with the
above-named labor organization as the exclusive
representative of all the Respondent 's employees in
the unit found to be appropriate and, if an agree-
ment is reached , embody such understanding in a
signed agreement.
(b) Post at each of its retail stores copies of the
attached notice marked " Appendix ."9 Copies of
said notice , on forms provided by the Regional
Director for Region 6 , after being duly signed by
the Respondent 's representative shall be posted by
it immediately upon receipt thereof, and be main-
tained 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 altered , defaced,
or covered by any other material.
(c) Notify the Regional Director for Region 6, in
writing , within 10 days from the date of this Order,
what steps have been taken to comply herewith.
IT IS FURTHER ORDERED that the election held on
July 13, 1967, in Case 6-RM-326 , be, and it
hereby is , set aside , and all proceedings in that case
be, and they hereby are , vacated.
" In the event that this Order is enforced by a decree of a United States
Court of Appeals , there shall be substituted for the words "a Decision and
Order" the words "a Decree of the United States Court of Appeals Enforc-
ing an Order "
HECK'S INC. 2233
APPENDIX
NOTICE TO ALL EMPLOYEES
Office, 1536 Federal Building , 1000 Liberty
Avenue, Pittsburgh, Pennsylvania 15222,
Telephone 644-2977
Pursuant to the Decision and Order of the Na-
tional Labor Relations Board and in order to effec-
tuate the policies of the National Labor Relations
Act, as amended, we hereby notify our employees
that:
After a trial in which both sides had the opportuni-
ty to present their evidence, the National Labor
Relations Board has found that we violated the law
and has ordered us to post this notice and to keep
our word about what we say in this notice.
All our employees have the right to self-or-
ganization to form, join, or assist labor unions,
and to bargain collectively through representa-
tives of their own choosing.
WE WILL NOT threaten to close any store
because our employees select a union to
represent them, or question our employees
concerning their union sympathies, or activi-
ties, or membership, or illegally poll employees
in a nonsecret ballot, or interview employees
under coercive circumstances.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of rights guaranteed them by Section
7 of the Act.
WE WILL recognize Amalgamated Meat Cut-
ters and Butcher Workmen of North America,
Food Store Employees Union, Local No. 347,
AFL-CIO, as the bargaining representative of
the employees in our Clarksburg, West Vir-
ginia, store. At the request of that Union we
will bargain with it in good faith with respect to
the terms and conditions of employment of the
employees in that store, and we will embody in
a signed contract any agreement reached.
All of our employees are free to become, or
refrain from becoming, members of the above-
named Union, or any other labor organization.
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
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
FREDERICK U REEL, Trial Examiner: These cases,
consolidated by order of the Regional Director' and
heard at Clarksburg, West Virginia, on February 27
and March 5, 6, and 14, 1968,1 present questions as
to whether Heck's, Inc., herein called the Com-
pany, engaged in acts of interference, restraint, and
coercion in violation of Section 8(a)(1) of the Na-
tional Labor Relations Act, as amended, whether
its refusal to bargain with the Charging Party
(herein called the Union) violated Section 8(a)(5)
of the Act, and whether a Board-conducted elec-
tion, which the Union lost by a vote of 19 to 16,
should be set aside because of allegedly improper
conduct affecting the result of the election. Upon
the entire record,' including my observation of the
witnesses and after due consideration of the briefs
timely filed by each of the parties, I make the fol-
lowing:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY, AND THE LABOR
ORGANIZATION INVOLVED
The Company, a West Virginia corporation,
operates a retail store in Clarksburg as well as
stores in other cities in West Virginia and Ken-
tucky. Its annual gross sales exceed $500,000, and
it received goods and products valued in excess of
$500,000 directly from outside the State of West
Virginia for use at its West Virginia stores. These
facts establish, and the Company admits, that it is
an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act. The
Union is a labor organization within the meaning of
Section 2(5) of the Act.
11. THE UNFAIR LABOR PRACTICES
A. Interference, Restraint, and Coercion
1. The evidence in support of the allegations
The Union commenced an organizing drive
among the Company's Clarksburg employees in
' The charge was filed July 18, 1967, and the complaint issued
December 26 The petition in the RM case was filed May 29, 1967, and the
election was held July 13 Objections were filed July 19, 1967, and the re-
port thereon issued December 28, the same day on which the two
proceedings were consolidated
s All other dates herein refer to the year 1967 unless otherwise noted
' 1 take official notice of other proceedings before the Board involving
this Respondent , including the letter from Regional Director Getrcu dated
March 29, 1968, in Case 9-CA-4472 The "Motion to take judicial notice"
which accompanied Respondent 's brief is hereby granted
354-126 O-LT - 73 - pt 2 - 69
2234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
May 1967, culminating in an election on July 13,
which the Union lost, 19 to 16. During this period
the Company openly and vigorously opposed the
Union's efforts. The question is whether, and to
what extent, the Company overstepped legal limita-
tions during this period and its immediate after-
math.
Several employees (Robin Webb, Mary Johnson,
and Beverly Davis) testified that during this period
Frances Jones, head cashier and concededly a su-
pervisor, frequently asked each of them whether
they had attended union meetings and where the
meetings were held. Each of them also testified that
Jones had stated to her that if the Union became
the bargaining representative, Company President
Fred Haddad would close the store. Several other
employees (Marsha Mason, Sharon Kimble, and
Pamela Jeffers) testified to separate occasions on
which Bill Pulice, a department head and admitted
supervisor, stated that Haddad would close the
store if the Union came in.
Pulice also figured in an incident of alleged un-
lawful surveillance of union activity. A mid-June
union meeting was scheduled for shortly after 10
p.m., the store's closing time, at the Truck-O-Tel, a
restaurant on the main highway leading from the
store to downtown Clarksburg. Several employees,
congregating outside before the meeting, saw Pu-
lice drive past three times (i.e., first toward town,
then back toward the store, and then toward town
again ), and noted that he was driving at a slow rate
of speed and that he turned his head toward the
restaurant so as to see who was there. The meeting
was transferred to a nearby bowling alley on the
same highway because, as employee Terry Smith
testified, "So many members showed up and we
had to go-and also have some privacy." Smith
further testified that a day or two later Warehouse
Manager Surock, a supervisor, asked him whether
he had bowled a good game the other night. Smith
rejoined that Surock knew Smith had not gone to
bowl but to a union meeting. Surock then asked,
according to Smith, "Did you all accomplish
anything?" and when Smith did not reply, Surock
added: "Well, you are going to be sorry of it," and
walked away.
According to the testimony of both Marsha
Mason and Pamela Jeffers, Company President
Haddad approached them one day in June while
they were working together, and initiated a discus-
sion with them as to why Montgomery Ward had
recently closed its Clarksburg store. After the two
employees expressed their opinion, Haddad told
them (so they testified) that they were wrong, that
the store had closed because of union activity, and
that he would close this store if the Union came in.
He then told the two employees that he was going
to transfer them to another store because they had
been "bad girls."
Employee Cynthia Marsh testified that shortly
before the election one of the supervisors, Ella
Morris, asked her how she was going to vote in the
election, and she replied that she did not know.
Marsh also testified to a conversation with Com-
pany Vice President Ray Darnall the night before
the election in which Darnall told her that the
Clarksburg store was making "just enough money
. . . to keep going, keep their heads above water.
..." Marsh further attributed to Darnall in this con-
versation the statement that the store "might have
to close down" if the Union prevailed.
During May, the same month in which the Union
first demanded recognition as bargaining represent-
ative, and well after the Company, by posting a
letter to all employees on its bulletin board, had
made known its strong opposition to the Union,
Vice President Darnall conducted a poll of the em-
ployees. He approached each employee in-
dividually, and handed the employee a slip of paper
reading as follows:
I am sure that you are aware that the Food
Store Employees Union are trying to organize
this store. I would like to ask you if you want
the Union to represent you. You do not have
to answer if you do not want to. This will have
no bearing on your job.
Name
Yes ( )Yes( )No( ) No Comment (
Please sign and check one. Thanks
Each employee signed and marked this "ballot" in
Darnall's presence and returned it to him.4
During May, June, and July, the Company
dispatched several written communications to its
employees stressing the Company's opposition to
the Union. The literature, which is in evidence as
General Counsel's Exhibits 8 through 11, in my
judgment manages to stay within the area of views,
argument, and opinion permitted by Section 8(c) of
the Act. Cf. National Food Stores, Inc., t/a Big Bear
Super Markets, 169 NLRB 94.
After the Company rejected the Union's demand
for recognition, the Company filed a petition with
the Board culminating in an election on July 13
The balloting was conducted in the lounge which
was separated from the store by the warehouse, so
that employees leaving their work to go to vote
passed through the warehouse. Before the voting
commenced, a number of company officials and
some union representatives were in the warehouse.
The Board agent conducting the election directed
them to go out of the warehouse before the polls
opened, and they complied with this directive. Dur-
ing the balloting the warehouse door was closed.
However, the employees going to and from the
polls passed the waiting groups of company and
' The tally showed I 1 "Yes," 13 "No," and 6 "No Comment " Three
employees were not polled
HECK'S INC.
union officials, and some conversations occurred
between employees and one or both of the groups.
The complaint alleged that the Company violated
the Act by "positioning [supervisors] in the store in
such a way as to insure that employees on their way
to the polling place would have to walk past them."
At the conclusion of General Counsel's and Charg-
ing Party's case, I granted the Company's motion to
dismiss this allegation for failure to establish a
prima facie case.
The Union lost the election, held July 13, by a
vote of 19 to 16 with I ballot challenged. After the
filing of the unfair labor practice charge and the
objections to the election, Company Counsel Hol-
royd, in the presence of Vice President Darnall, in-
terviewed a number of employees, individually, in
the store manager's office. Holroyd explained to
the employees that he was interviewing them
because of the charges and objections filed with the
Board He then proceeded to ask them whether
their working rules had been changed in June 1967,
and also whether any supervisor had (a) stated that
the Union put Montgomery Ward out of business in
Clarksburg, or (b) stated that Heck's would close
before it let a union in, or (c) asked about at-
tendance at a union meeting, or (d) asked how the
employees would vote in the election. Holroyd
noted the employees' answers on a mimeographed
form he had prepared, and asked each of the inter-
viewed employees to swear to and sign the
completed form Several employees declined to do
so, and one (James McPherson) testified that Hol-
royd said, "I can make you sign."
2. Concluding findings
The threats, attributed to Jones, Pulice, and Had-
dad, that the store would close if the Union came
in, would manifestly violate Section 8(a)(1) of the
Act. In each case the employer-representative,
called as a witness, denied the threat. Similarly,
Morris denied questioning Marsh as to how Marsh
intended to vote. These conflicts in the testimony I
resolve in favor of General Counsel's witnesses, for
reasons summarized below.
The various employee witnesses, whose
testimony I credit, impressed me as testifying care-
fully, with high regard for the truth and with con-
siderable corroborative detail. Also I note that in
many instances their testimony attributing illegal in-
terrogation and threats to supervisors was con-
sistent with statements that they gave (according to
their uncontradicted testimony) to Company Coun-
sel Holroyd when he interviewed them after the
election.6
S Company Vice President Darnall promptly dispatched a telegram to
each of the other stores in the Heck chain, advising them that the Union
had lost the election "by an overwhelming majority" and directing them to
post the telegram on their bulletin boards A similar telegram was sent from
2235
In contrast to the employee witnesses whom I
credit, I found Jones, Pulice, and Haddad less than
fully believable. In addition to the matter of
demeanor I note the following: (1) Jones testified
that she had never discussed the matters to which
she testified with anyone, that she did not even
know she was to testify at all until about 2:45 p.m.
on the day she took the stand, and that when she
called the store manager earlier that day he had
said he did not know whether she would be called.
The story strikes me as incredible, for Jones had re-
peatedly been named as a perpetrator of unlawful
conduct as far back as the previous July, and she
had figured prominently in the testimony of
General Counsel's witnesses a week before she took
the stand. Moreover company counsel had ex-
pected to finish his entire case by noon, so that if
Jones' story is to be believed, but for the unex-
pected delay in finishing the Company's case, she
would never have been called and the accusations
against her would have gone unrebutted. Finally,
Surock testified that the store manager told him at
9 a m. that day that Surock, Jones, and another su-
pervisor would be testifying that day, which casts
some shadow over Jones' testimony that at noon
the store manager was uncertain. These matters
serve to reinforce the unfavorable judgment I
formed of Jones' credibility. (2) Haddad parried an
inordinate number of questions by saying "I don't
recall," but managed to recollect that he had
discussed with some employees the "rumor" that
Montgomery Ward's closing was caused by the
Union. His statement that he "kidded" with the em-
ployees furnishes no defense to a threat to transfer
"bad girls," uttered in a context of antiunion state-
ments. A.P. Green Fire Brick Company v. N.L.R.B.,
326 F.2d 910, 914 (C.A. 8). In any event, I also
credit the employees' testimony over Haddad's
denial that he threatened to follow Montgomery
Ward's example and close the store if the Union
came in, and this statement alone would establish
unlawful coercion by the Company. (3) I had more
difficulty assessing the credibility of Pulice than I
had in forming the conclusion that Jones and Had-
dad were not reliable witnesses. Pulice "explained"
the surveillance attributed to him, because he re-
called that on that day, some 9 months before he
testified, he had left the store and started for home
when he realized he had forgotten a package at the
store, so that he returned to the store and then
retraced his route toward home. This circumstance
brought him past the union meeting place three
times, and he thought he "probably looked over" to
the group of employees there, although he averred
that he had driven past at his normal rate of about
the Company's Kanawha City store to the Clarksburg store following a poll
of the Kanawha City employees which Darnall conducted
6 Employee Kimble's testimony was contrary to the statement she gave
Holroyd She repudiated that statement and explained twice that she was
"very nervous" when Holroyd interviewed her
2236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
30 miles per hour . Indeed , Pulice's recollection of
the events was so vivid that he remembered that on
his way back to the store he passed a truck just as
he went by the meeting place, so that he did not see
the employees on that leg of his trip. As Pulice
drives this route two or three times a day, and
frequently passes trucks, his recollection of this
particular vehicle as blocking his view suggests
either a fabulous memory or some greater interest
in the identity of those at the meeting place than he
was willing to admit . In any event , to return to the
question of Pulice's credibility vis-a-vis the em-
ployees who testified to his threats that the store
would close if the Union came in, the testimony of
Kimble, Jeffers, and Mason in describing their con-
versations with Pulice impressed me as truthful. I
have credited their testimony in other respects, and
while I am not as firm in my conviction that Pulice
is to be discredited as I am in dealing with Jones
and Haddad , I shall resolve this close issue in favor
of the employee witnesses.
As to the similar threat which employee Marsh
attributed to Vice President Darnall , I note that
Marsh first testified she was "not sure" as to Dar-
nall's comments because "it 's been so long ago."
When asked what Darnall had said " would happen
if the Union came in," she replied . " The store
might have to close down, I guess." In the light of
this testimony, I credit Darnall 's denial that he ut-
tered the explicit threat . Darnall testified , however,
that he had a conversation with Marsh the night be-
fore the election in which he explained the store's
parlous existence in terms of its narrow margin of
profit . Such a conversation , on the eve of an elec-
tion between a highly placed company executive
and a newly hired cashier of itself suggests that the
employer representative was "campaigning" but I
am not prepared to find that he overstepped the
line between argument and threat. I credit Marsh's
testimony that Morris interrogated her, however,
for Marsh did not qualify her testimony with
respect to Morris as she did with respect to Darnall,
and Morris ' overeagerness to deny all allegations,
even before the question was asked , did not inspire
confidence in her veracity . Also it is possible that
Morris forgot her conversation with Marsh, for
Morris apparently did not even recall later conver-
sations with Holroyd.
As to the surveillance episode, discussed above,
the Union cannot be heard to complain, if it
chooses to hold its meetings in a prominent spot on
a well-traveled road , merely because management
representatives drive by, and even if they turn their
heads toward the gathering . Pulice's explanation
that he had to retrace his steps that evening and
hence passed the spot three times is not so incredi-
ble as to require rejection. Pulice 's recollection that
a truck he was passing blocked his view suggests he
had a high degree of interest in learning who was at
the meeting place, although , if credited , it tends to
support his estimate of his speed rather than the ab-
normally slow rate the employee witnesses at-
tributed to him. In any event , I find that Pulice's
presence in the area was occasioned by legitimate
purposes of his own rather than by a desire to spy
on the meeting. Similarly, Surock 's alleged
knowledge (which he denied) that the employees
were having a union meeting at a bowling alley
would not establish that he or anyone else in
management had spied on the meeting. I therefore
dismiss the allegation of unlawful surveillance.
Darnall 's poll of the employees as to their pro or
antiunion sentiments seems to me palpably illegal.
This was not casual or isolated interrogation, but
involved the employer's making of a written record
as to the union views of every employee Such
polling, when held lawful , has always been by secret
ballot, and the requirement here that the employee
sign the "ballot " stamps the entire episode as il-
legal. See N.L.R.B. v. Protein Blenders, Inc., 215
F.2d 749 (C.A. 8); N.L.R.B. v Roberts Brothers,
225 F.2d 58 (C A. 9), N.L. R B. v. Russell Kingston,
172 F.2d 771 (C.A. 6).
The interviews which Holroyd conducted after
the election apparently were for the lawful purpose
of enabling the Company to meet the charge and
the objections to the election. Nevertheless, certain
important safeguards which the Board and the
courts have said should accompany such interviews
were lacking. I note, for example, that the em-
ployees were not assured that no reprisal would
take place, that their participation was not on a
voluntary basis, that they were asked to swear to an
affidavit setting forth their answers to Holroyd's
questions, and that at least one of them was so ner-
vous as to give incorrect statements in response to
Holroyd 's inquiries . On the other hand, not all the
employees called into the office answered Hol-
royd' s questions , and of those who did, several
refused to sign . Under all the circumstances, and
considering also the general antiunion atmosphere,
I find Holroyd's interviews exceeded legitimate
bounds, because of his failure to reassure the em-
ployees that they were free not to cooperate
without prejudice to their jobs and because he at-
tempted to get them to swear to their statements.
See N.L.R.B. v. Neuhoff Brothers Packers, Inc., 375
F.2d 373, 377-378 (C.A.5) The interviews by
Holroyd, a company agent , in the presence of other
company supervisors thus violated Section 8(a)(1),
although the matter is somewhat cumulative in the
light of Darnall 's earlier unlawful poll I find that
McPherson misunderstood Holroyd, and that the
latter did not say "I can make you sign."
In sum , I find that the threats of Jones, Haddad,
and Pulice, the interrogation by Morris, the polling
by Darnall , and the postelection interviews by Hol-
royd constituted interference , restraint , and coer-
cion in violation of Section 8(a)(1) of the Act.
HECK'S INC.
B. The Refusal to Bargain
1. The Union's majority status
The Union made a telegraphic request of the
Company for recognition on May 20, and repeated
the request orally on June 13. Both requests were
refused, as the Company expressed a doubt of the
Union's majority and stated that the matter should
be resolved by an election. By May 20, the Union
had obtained cards from 19 of the 33 employees
then in the bargaining unit,' and by June 13 it held
cards from 23 of the 38 then in the unit ." The Com-
pany introduced testimony which, if fully credited
and given its broadest possible sweep, would cause
me to reject three or four of the Union's cards. For
reasons developed below, I find that all cards, in-
cluding those brought into question by the Com-
pany, were valid.
The Company produced two employee witnesses,
Alice Neely and Avis Wetzel, who testified that
they signed their cards after the union organizer
told them, separately, they would lose their jobs if
they did not. Neely, moreover, was accompanied in
the interview with the union organizer by another
employee, Evelyn Carpenter, who signed at the
same time and, according to Neely, after the same
threats. The fourth card under attack is that of em-
ployee Ursel Strosnider, who was confined to a
hospital during the hearing, but who, the record
suggests, would not have signed a card but for Wet-
zel's having done so. There is also a suggestion in
the testimony that Strosnider told Neely that she
(Strosnider) signed out of fear, but this is not
probative evidence of Strosnider's motivation.
Neely, whose credibility is difficult to assess in
view of her admittedly nervous state while testify-
ing, stated that for some days before they signed
cards, she and Carpenter had been followed, as
they drove through Clarksburg, by a car containing
the union organizers. On one occasion, according
to Neely, a rock struck her car, and she was sure it
was thrown from the car following her. (I accept
and credit the testimony of the union representa-
tives that they did not engage in any car-following
or rock-throwing, but I will accept Neely's state-
ment that she believed these men had followed her
car and thrown a rock. This may involve some
stretching of credulity, for Neely also testified that
she knew the union men wanted to see her as they
had so informed her husband, and a normal person
might reason that if they pursued so routine a
method of approaching her they would not have
resorted to shadowing, pursuing, and rock-throw-
ing. But Neely did not impress me as "normal" and
I will credit her testimony that she held this bizarre
and unfounded belief )
' The stipulated bargaining unit includes all the employees in the Clarks-
burg store except for supervisors, guards, and professional employees
s The Union obtained five new cards between May 20 and June 13, but I
2237
On May 18, at the suggestion of a fellow em-
ployee who supported the Union, Neely and Car-
penter met with one or two fellow employees and
the union organizers at a restaurant after work.
Neely testified that before going to this meeting,
she and Carpenter had decided to sign union cards
"if they [the Union] had anything to offer us and
various things like that when we talked it over, saw
what they had to offer." During the conversation at
this meeting, which lasted over an hour, Neely
asked a number of questions dealing with possible
union benefits, such as retirement and insurance,
and how long she would have to be a member be-
fore obtaining these benefits. In the course of the
conversation the union representatives told the two
employees that when the Union became the bar-
gaining representative and obtained a contract
"after 30 days all employees at the place would be-
long to the Union."9
A fair summation of Neely's testimony is that,
whatever her fears may have been, she went to
meet the union organizers, discussed possible union
benefits at some length, learned that if the Union
obtained a contract union membership would
probably become a condition of employment, and
signed the card. I find nothing in this to lead me to
eliminate Neely, or her companion Carpenter, from
the list of those supporting the Union at the time it
claimed recognition. I note also that Neely marked
Darnall's "ballot" as to show her support of the
Union. Neely testified that she told Darnall at the
time that she had signed a union card "under pres-
sure." Darnall's testimony contains no mention of
any such comment by Neely, and I credit the
testimony of employee Davis that she overheard the
exchange between Neely and Darnall and that no
such remark was made . Neely's testimony reveals a
determination , as of the date of the hearing, to op-
pose the Union, but her recollection of the events
of the preceding May and June appears highly
colored by her frame of mind at the time of
testimony. This comment also applies to Wetzel,
whose testimony is discussed below. Curiously both
Neely and Wetzel positively named one of the
union organizers who interviewed them as one
Huffman, although the record conclusively
establishes that the man in question was Carl Lam-
bert, and that Huffman, another organizer , had left
the city by the date in question . Why Neely swore
the man was Huffman is not explained on the
record, but Wetzel testified that her recollection to
this effect had recently been refreshed by Holroyd.
I note that Huffman's name did appear in the
record and in exhibits received in evidence on the
first day of the hearing , and that Wetzel and Neely
did not testify until a week later. I do not believe
that Neely willfully testified falsely, but her nervous
of the original 19 employees had left the Company by the latter date
' I do not credit Neely's testimony that the organizers told her that if she
failed to sign the card she "could lose I her) job with the Company "
2238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
condition and the general tenor of her testimony
lead me not to credit her where there is probative
evidence contrary to that which she gave.
Wetzel testified that in her meeting with the
union organizers she first expressed fears, which
they assuaged , that if she signed for the Union, the
Company would discharge her The meeting in
Wetzel's home lasted over 90 minutes , and accord-
ing to Wetzel she finally signed the card when the
organizers told her that "the Union is going in . .
and when it gets in [she would] have to join the
Union to keep [her] job." I credit the testimony of
Lambert and Skaggs , the two union organizers, that
they explained to Wetzel and to Neely that once
the Union obtained recognition it expected to ob-
tain a contract which would require employees to
join in 30 days.
I find nothing in the above which suggests that
the Union obtained Wetzel's card by improper
means. Moreover, Wetzel apparently attended
several union meetings ( even during inclement
weather which kept others away) at which she
spoke in favor of the Union , and she marked Dar-
nall's "ballot " for the Union, although she ex-
plained to him she had been " more or less pushed
into" signing a union card. Finally, Wetzel herself
testified that she telephoned Strosnider while the
union organizers were at Wetzel 's house and said
"I signed . I don't know what you are going to do If
you want to sign , that 's up to you. I suppose I might
as well lose my job one way as well as another."
This statement furnishes no basis for not including
Strosnider 's card as a valid designation of the
Union.
In short , I find that all the cards held by the
Union were valid designations, and that it
represented a majority of the employees at the time
it requested , and the Company refused , recogni-
tion.
2. The Company's asserted doubt of the Union's
majority
On May 25 the Company replied to the Union's
May 20 request for recognition , stating that "a
majority of the employees have advised the Com-
pany that they did not desire your union to
represent them ," and adding that the Company had
filed a petition with the Board so that the question
of majority status could be determined by secret
ballot Again on June 13 the Company adhered to
its determination to seek an election rather than to
determine the Union 's majority by card check, as
the Union offered The reference on May 25 to
what the employees had told the Company was ap-
parently a somewhat inaccurate representation of
the results of Darnall 's poll, which showed 11 for,
13 against , and 6 " No Comment."
The Company in at least three preceding cases
arising in other stores had been confronted with
claims of union majorities , but in subsequent
proceedings had successfully resisted the Union's
attempt to obtain enforceable bargaining orders.
See Heck's, Inc., 159 NLRB 1151, 159 NLRB
1331; N.L R.B v Heck's, Inc , 386 F 2d 317 (C.A.
4) In the light of this background the Company's
reluctance to recognize the Union pursuant to the
latter 's claim of a majority based on authorization
cards is certainly understandable , to say the least.
There is some evidence , denied by company wit-
nesses, that Haddad believed as of July 6 that the
Union had cards from a majority, but this would
not distinguish this case from that reported at 159
NLRB 1331, 1334-35. The closeness of the vote
obtained by Darnall in his poll might give rise to
some question as to whether the Company doubted
the majority in good faith, for the "No Comment"
votes under the circumstances might be interpreted
as prounion. Also, the fact that the Company en-
gaged in unfair labor practices between the time of
the bargaining request and the election may warrant
an inference that it sought the election to gain time
in which to dissipate the majority.
Although the record thus discloses some basis for
a finding that the Company did not have a good-
faith doubt of majority, I am not persuaded that the
preponderance of the evidence leads to that result
I note that the Company did expedite the election
by filing the petition , and I am particularly in-
fluenced by the fact that in prior cases the Com-
pany's challenge to card majorities proved well-
founded For reasons set forth below, however, I
find that a bargaining order should issue to remedy
the Section 8(a)( I) violations found above
As already noted the Union did in fact represent
a majority prior to the Company 's unfair labor
practices , and indeed lost the election by only a
narrow margin after the Company committed vari-
ous illegal acts . At least six employees , nearly one-
fifth of the entire bargaining unit, were threatened
by supervisors that advent of the Union would
result in closing of the store ( Even company wit-
nesses Neely and Wetzel testified that employees
were afraid of being discharged if the Company
learned they signed union cards ) Under these cir-
cumstances it is reasonable to infer, and I do, that
the unfair labor practices destroyed the Union's
previously existing majority status . A proper
remedy for those unfair labor practices is to restore
the Union to its majority status , with the con-
sequent imposition on the Company of a duty to
recognize the Union and bargain with it upon
request . See, e g., N.L R.B. v. Delight Bakery, Inc.,
353 F.2d 344, 347 (C.A. 6).
CONCLUSIONS OF LAW
1. The Company by interrogating its employees
as to their union acivity, polling them in a non-
secret ballot to ascertain which employees sup-
ported the Union , and threatening to close the store
if the Union became the bargaining representative,
HECK'S INC.
engaged in unfair labor practices affecting com-
merce within the meaning of Sections 8 ( a)(1) and
2(6) and (7) of the Act, and tended to dissipate the
majority status which the Union enjoyed prior to
the unfair labor practices.
2. By interviewing employees under coercive cir-
cumstances concerning matters relating to unfair
labor practice charges and objections to an election
the Company engaged in further unfair labor prac-
tices affecting commerce within the meaning of
Sections 8(a)(1) and 2(6) and (7) of the Act
THE REMEDY
I shall, of course, recommend that the Company
cease and desist from violating Section 8(a)( I) of
the Act, and that it recognize and bargain with the
Union as the representative of the Clarksburg em-
ployees
As previously noted, the Company has a number
of stores; it opened its 11th store during one of the
recesses in this hearing. Its headquarters is in
Charleston, West Virginia, and basic labor policy
for all the stores is determined there by Messrs.
Haddad, Darnall, and Holroyd. That the Company
itself recognizes a relationship between events oc-
curring at different stores is shown by its conduct in
immediately sending a telegram to all other stores,
for posting on their bulletin boards, after the Union's
defeat in the election at Clarksburg.10 Similarly the
Company sent a telegram to its Clarksburg store to
advise of the result of its own employee poll at its
Kanawha City store . In the light of those facts, and
in consideration of the fact that there are eight
previous Board orders finding violations at various
stores in the Heck's chain ," I believe that the order
should be broad enough to restrain future violations
of Section 8(a)(1) at any and all of the stores
owned by Heck 's. See N.L.R.B. v. Heck's, Inc., 388
F.2d 668, 669 (C.A 4).
The Union in its brief makes several suggestions
as to further remedies . It asks that a general bar-
gaining order issue covering all Heck's stores, so
that ( assuming court enforcement in this case) any
postdecree refusal to bargain in any store will be at
'o The telegram states that the employees voted by an "overwhelming"
majority to reject the Union As the actual vote was 19 to 16, the use of the
term "overwhelming " suggests that the Company was engaging to
2239
the risk of a contempt proceeding Assuming, ar-
guendo, that such relief might be appropriate in a
proper case, I decline to recommend it here, as at
this writing there is no outstanding judicially en-
forced bargaining order against the Company As-
suming that the order here recommended later
becomes embodied in a court decree , a sufficiently
virulent showing of a bad -faith refusal to bargain
might lead to a contempt prosecution under the
provisions of the order prohibiting interference
with the Section 7 right to bargain collectively. The
Union also asks that General Counsel be directed
to seek injunctive relief in any future case involving
Heck 's. This matter should be left to case -by-case
determination , General Counsel will not be
unaware of the Company's history if subsequent
complaints should issue , and the Union may make
appropriate requests in such cases The Union asks
that in future cases against Heck 's the Company
should shoulder the burden of proving that it had a
good-faith doubt of majority. I have grave doubt
that the Board has power to shift the burden of
proof in cases not yet before it.
With respect to this particular case the Union
urges that the Company be required to bargain over
the conditions of employment prevailing from the
date of the violation to the effective date of the new
contract . I see no need to particularize this part of
the remedy, for the Union is free to bargain over
the effective date and can therefore bargain for
retroactivity. Cf. Independent Drugstore Owners of
Santa Clara County, 170 NLRB 1699. Finally, I
decline to recommend that the Union be reim-
bursed for its expenses in filing the charge in this
case, or in participating in the litigation . See M.F.A.
Milling Company, 170 NLRB 1079, TXD, "The
Remedy."
Finally, in the light of the foregoing and in view
of the bargaining order recommended in this case, I
find it unnecessary to pass upon certain additional
conduct alleged to have affected the results of the
election . I recommend that the election be set aside
and the representation proceeding be vacated
[Recommended Order omitted from publica-
tion. ]
propaganda at the other stores, and using the Clarksburg election for that
purpose
" See 150 NLRB 1565, 156 NLRB 760, 158 NLRB 121, 159 NLRB
1151, 159 NLRB 1331, 166 NLRB 186, 166 NLRB 674, 170 NLRB 178