Heck's, Inc.

760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD past practice claim is undisputed." In making this determination, we are assigning the controverted work on all foreign flag vessels which dock at Matson Terminals, Inc., in Wilmington, California, to longshoremen represented by ILWU, and not to that union or its members. Similarly, we are assigning the disputed work on the MV Kungsholm and the SS Rotterdam, whenever they dock at Matson facilities in Wilmington, to personnel represented by MCS, and not to that union or its members. DETERMINATION OF DISPUTE Pursuant to Section 10(k) of the Act, and upon the basis of the foregoing findings, the Board makes the following determination of dispute : 1. Longshoremen in the unit represented by International Long- shoremen's and Warehousemen's Union, Local 13, are entitled to perform the work of handling passenger baggage as described above on all foreign flag passenger vessels which dock at the facilities of Mat- son Terminals, Inc., in Wilmington, California, with the exception of the vessels MV Kungsholm and SS Rotterdam, for which personnel in the unit represented by Marine Cooks and Stewards Union, Member of Pacific District, Seafarers International Union of North America, AFL-CIO, are entitled to perform the disputed work. As a conse- quence, MCS is not entitled to force or require the aforesaid Terminals or PMA to assign the disputed work to its members or to personnel whom it represents by means proscribed by Section 8 (b) (4) (i) and (ii) (D) of the Act, except on the vessels named above. 2. Within 10 days from the date of this Decision, MCS shall notify the Regional Director for Region 21, in writing, whether or not it will refrain from forcing or requiring, by means proscribed by Section 8(b) (4) (i) and (ii) (D) of the Act, the assignment of the work in dispute in a manner inconsistent with the above determination. n ILWU conceded MCS' superior claim to handle passenger baggage work on the MV Kungsholm since its members have performed the work exclusively since the vessel first docked in Los Angeles in 1956 . While ILWU did not similarly concede MCS' right to handle such work on the SS Rotterdam, it failed to dispute or grieve Terminals' assign- ment to MCS when the vessel was berthed in the Harbor in 1961 on its only trip there. Heck's, Inc. and Food Store Employees Union, Local #347, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO. Cases Nos. 9-CA-3363 and 9-CA-3415- January 12, 1966 DECISION AND ORDER On May 4, 1965, Trial Examiner C. W. Whittemore issued his Decision in the above-entitled proceeding, finding that the Respondent 156 NLRB No. 73. HECK'S, INC. 761 had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist 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 Exam- iner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Fanning and Brown]. 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 brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner, except as modified herein. 1. The independent Section 8 (a) (1) violations The Trial Examiner found, and we agree, that Respondent violated Section 8(a) (1) by certain acts, which are set forth in detail in the Trial Examiner's Decision. These included some 11 incidents during October and early November 1964 wherein Respondent's supervisors coercively interrogated its employees, threatened them with reprisal for union activities, solicited them to disavow their union membership, and, in front of its employees, ordered a union representative to leave Respondent's store although he had entered the premises to do business as a customer.' 2. The discharge of Davis and John Brethauer The complaint alleged that Respondent discharged Davis and John Brethauer on or about October 20,1964, in violation of Section 8 (a) (3) and (1) of the Act. Respondent denied these allegations and con- tended that both employees were discharged for cause, that is, it was reported to Respondent that each was engaged in union solicitation on company premises contrary to it no-solicitation rule, which Respond ent claimed was lawfully in effect at its store at that time' The Trial Examiner found both discharges to be discriminatory as alleged. In so finding as to Davis, he rejected Respondent's defense as unsupported by the facts, doing so on the basis of Davis' credited i In the absence of exceptions thereto , we adopt, pro forma, the Trial Examiner's recommendation to dismiss the allegations of the complaint that Respondent further violated Section 8(a) (1) by engaging in surveillance on November 3, and by granting wage increases in mid-October. 2 Respondent contended that two other employees had reported that Davis and Brethauer were soliciting signatures to union authorization cards at the store. Store Manager Hull testified that he effected the discharges purely on the basis of the report and that he did not investigate to determine its veracity. 762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and unrebutted testimony that she had never engaged in soliciting union authorization cards in the store.3 Further, he rejected the defense as to Brethauer on the ground that Respondent had not proved that it had promulgated any no-solicitation rule prior to his discharge. In its exceptions and brief, Respondent contends that the 8(a) (3) violation finding as to Davis must fall because, even if it be found that Davis was not discharged for violation of the no-solicitation rule, the General Counsel has not established that she was discharged for discriminatory reasons. In respect to Brethauer, Respondent again contends that there was a valid no-solicitation rule in effect at the store on October 20 and that Brethauer by his own admission was discharged after he had violated it. It further contends that, even if it be found that Brethauer was not discharged for soliciting at the store, the General Counsel has not proved that Brethauer was dis- charged for any unlawful reason. We reject these contentions. Davis had signed an authorization card and had attended union meetings. Brethauer had been more active. In addition to his admitted soliciting of signatures to authorization cards at the store, he had solicited them elsewhere, had been in contact with a union representative relative to union affairs, had attended union meetings, and had signed a card himself. While there is no specific testimony that Respondent knew of these union activities of Davis or Brethauer, it is manifest from statements made by Respondent's supervisors that it kept close tabs on the organizational activities of all its personnel 4 Moreover, Respondent's asserted reason for its discharge of Davis and Brethauer, engaging in union solicitation in violation of a store rule, contains in itself a concession of knowledge. Respondent's animus toward union organizational activities is graphically demonstrated by its supervisors' aforementioned campaign of threats, coercion, and intimidation of employees because of their union sympathies. The General Counsel, by showing the union activities of Davis and Brethauer, the Respondent's knowledge thereof, and union animus on the part of Respondent that supports an inference of discriminatory intent, has established a prima facie case in regard to both discharges.' The next question is whether Respondent's defense has overcome the General Counsel's showing, that is, whether Respondent has proved 3 The two employees who purportedly made the report did not testify at the hearing 4 Thus, as more fully described in the Trial Examiner 's Decision , Supervisor Ellis told employee Jerry Brethauer on October 20, 1964, that he knew a union man had been at Brethauer 's home and at the home of Rule Perry . On October 27, 1964 , Manager Skaggs stated that he knew of 13 individuals who attended a union meeting at the home of employee Alleman earlier that month . Manager Hull , in speaking to employee Susan Lee about October 20 , indicated he was aware of yet another union meeting which had taken place at the home of Rule Perry . Also, Respondent interrogated a number of em- ployees to determine if they had signed authorization cards 5 See N.L.R .B. v. Whitin Machine Works, 204 F. 2d 883 (C A 1). HECK'S, INC. 763 that its real motive for both discharges was not to discourage union activities but was rather to discipline Davis and Brethauer for viola- tion of Respondent's claimed no-solicitation rule. The evidence is conflicting as to whether Respondent had ever promulgated a no-solicitation rule before October 20, the date of both terminations. It is clear, however, from the testimony of Man- ager Hull, who effected the discharges, that he had never warned any employee that discharge was the penalty for violation of such rule, and that to his knowledge no supervisor under him had ever issued such a warning. In any event, assuming that a no-solicitation rule-even a valid one-was promulgated before October 20, we are convinced in all the circumstances of this case that any actual or alleged violation of that rule was not the reason which motivated Respondent to discharge Davis and Brethauer. In the context of the campaign by Respond- ent's supervisors to defeat the organization of its employees, we believe that Respondent seized on the report that Davis and Brethauer were soliciting signatures at the store as a convenient excuse to rid itself of two of the individuals it had already marked as union adherents. The discharge action was precipitate. No warning was given. The report was never even investigated. And, as to Davis, the record demonstrates that it was clearly erroneous.' Moreover, later the same day, Manager Hull as much as admitted to employee Spiker that Respondent considered that its right to be free of solicitation at the store was a right which it could exercise, as it saw fit, as a pretext upon which to punish union adherents. Thus, Hull told Spiker 7 that he had just terminated two people for soliciting on behalf of the Union and could discharge Spiker for the same reason, if he wished, but would not do so since he had decided not to "fire anyone else." Accordingly, we conclude, in agreement with the Trial Examiner, that Respondent discriminatorily discharged Davis and Brethauer in violation of Section 8 (a) (3) and (1) of the Act.8 3. The discharges of Eddy and Perry The Trial Examiner also found that Respondent had discharged Department Head Ruie Perry and Acting Department Head Noah Eddy in violation of Section 8(a) (3) and (1). In its exceptions and 8 See footnote 3, Supra. Further, as Davis' discharge was motivated by a belief that Davis engaged in union activities even under Respondent 's own version of the discharge, and as Respondent was wrong in its further belief that Davis had engaged in union activities of an unprotected character , this alone is enough to support a finding of an 8(a) (1) and (3) violation as to her wholly apart from the other considerations on which we rest our decision herein . Cf. N.L.R.B. v. Burnup and Sims, Inc., 379 U.S. 21. 7 Spiker was 'a union adherent who had signed an authorization card on October 8. 8 Southwire Company, 145 NLRB 1329, 1331 ; Ripley Manufacturing Company, 144 NLRB 1132, 1156; Idaho Potato Processors, Inc, 137 NLRB 910; Standard Trucking Company, 134 NLRB 371. 764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD brief Respondent again advances the contention, which was rejected by the Trial Examiner, that since Perry and Eddy were supervisors, their discharges cannot constitute unfair labor practices. We find merit in this contention. At relevant times herein Respondent employed some seven regular or acting department heads : Darrell Ellis, Robert Welch, John McClung, Betty Shepard, Rudolph Parrish, Ruie Perry, and Noah Eddy.9 The General Counsel conceded that Ellis and Welch are supervisors. The record indicates that the duties of the other depart- ment heads are substantially the same as those of Welch and Ellis. Thus, each department head schedules the daily work for his depart- ment as well as the days off for employees assigned to it. The depart- ment heads receive higher salaries and bonuses than employees working under them, attend supervisory meetings, get preference for vacations, have access to sales figures, and are responsible for the work of each department. It further appears that their duties, prereq- uisites, and responsibilities are substantially the same as those of the department heads at Respondent's Ashland, Kentucky, store, whom the Board previously found to be supervisors.lo Perry was a full-fledged department head at the time of her dis- charge on December 19, 1964. While Eddy was only an acting depart- ment head, he had been assured at the time of his hiring in late Septem- ber 1964 that he would attain a permanent position as a department head if he performed satisfactorily during a probationary period of a few months. If, at the end of the period, his performance as a department head was found wanting by Respondent, he was to be released. From the time he was hired until October 31, 1964, when he was terminated , his duties appeared to be the same as those of the permanent department heads. He was responsible for the operations of his department, scheduled work, saw to it that goods were appro- priately marked and displayed, and attended supervisory meetings. Thus, it appears that Eddy was hired only for the purpose of becom- ing a permanent department head and that he functioned as such during his trial period.1' In view of the foregoing, we conclude that John McClung, Parrish Shepard, Perry, and Eddy were supervisors within the meaning of Section 2(11) of the Act at all relevant times herein. Therefore, we find that by terminating Eddy and Perry, Respondent did not violate ?Another Individual , Helen Richards , was also a department head at the time of the hearing However, the evidence indicates that she did not enjoy this status during the Union's organizational campaign in October 1964 nor at the time of the Union's demand for recognition on October 22 10 Heck's, Inc., d/b/a Heck's Discount Store, 150 NLRB 1565. u Hy Plains Dressed Beef, Inc., 146 NLRB 1253, 1260 , 1261 ; WTOP Inc., 115 NLRB 758, 759. HECK'S, INC. 765 Section 8 (a) (3) of the Act.12 Further, inasmuch as the record does not establish that their discharge was motivated other than by a pur- pose to discourage their union activities as supervisors, we likewise conclude that Respondent did not thereby violate Section 8(a) (1) of the Act.13 We shall, accordingly, dismiss the complaint as to Perry and Eddy. 4. The Section 8 (a) (5) violation The Trial Examiner found that Respondent violated Section 8 (a) (5) and (1) of the Act by refusing to bargain with the Union after the demand for recognition on October 22, 1964. In support of its exceptions to this finding, Respondent argues that its refusal to bargain was not unlawful, because the unit in which the demand for recognition was made was inappropriate for the purposes of collective bargaining and, in any event, according to Respondent, the Union did not represent an uncoerced majority at the time of its demand. We reject both of these contentions as lacking in merit. a. The unit contention The complaint alleged, the Trial Examiner found, and we agree, that the appropriate unit consists of : All employees at Respondent's Parkersburg, West Virginia, store, excluding all office clerical employees, guards, professional employees„ and supervisors as defined in the Act.14 As more fully set forth in the Trial Examiner's Decision, Sherwood Spencer, an official of the Union, demanded recognition of Store Manager Hull during the course of a telephone call on October 22 and in a letter received by Respondent on the following day. It does not appear that the precise unit was described in the phone call. The letter, however, stated that the Union sought recognition as the bar- gaining representative of "the employees" at Respondent's Parkers- burg store. Although Respondent never met with the Union for the purpose of discussing the inclusions in and exclusions from the claimed unit, Respondent now contends that any unit of "all the employees at the store" would be inappropriate because it would include confidential employees, supervisors, guards, and temporary employees. The issue posed by Respondent's contention is whether the unit in which bargaining was initially sought is so clearly inappropriate as to relieve Respondent of any obligation to bargain collectively therein. Stated another way, Respondent's contention is that there is a sub- stantial variance between the unit originally sought and the unit found appropriate. 12 Gibbs Automatic Division, Pierce Industries, Inc., 129 NLRB 196. 18 National Freight, Inc., 154 NLRB 621. 24 See Allied Stores of New York, Inc. d/b/a ,Stern's, Paramus, 150 NLRB 799. 766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The record shows that on October 22, 1964, Respondent employed 47 individuals at its Parkersburg store in addition to the manager and assistant manager. Since the Union's demand covered only "employees," it cannot be deemed to embrace the manager and assist- ant manager or the seven department heads previously referred to.15 Respondent avers that three other employees must be excluded as guards-Griffin, John Brethauer, and Jerry Brethauer. The parties ultimately agreed that Griffin, the full-time night watchman, should be excluded as a guard. Accordingly, we exclude him. As to the Brethauers, the record indicates that they were employed full time by Respondent in its hardware department and filled in as guards only on a part-time basis during nonbusiness hours when Griffin was off duty. Since these part-time functions were performed when other employees were not present, we find that the employment interests of the Brethauers are not opposed to, and in fact are consistent with, those of other employees with whom they work on a full-time basis in a nonguard capacity during the normal business day. Accordingly, we find the Brethauers are properly included in the appropriate unit.16 Also in issue is the exclusion of one confidential employee, Billie Allman.17 The record indicates that Allman's main duties are in the housewares department. She also performs work on a relief basis during the lunch hour and on weekends in the office. During the latter time, she has access to the employees' timecards. We do not believe that these "fill-in" duties are of a nature to warrant finding her to be a confidential employee.18 The record is unclear whether employees Casto and Tyree were hired permanently or only on a temporary basis. However, even if we were to exclude both Casto and Tyree from the appropriate unit as temporary employees, the difference between the unit of store employ- ees initially requested by the Union, and the unit found appropriate, amounts to only three to five individuals (guard Griffin, office clericals 15 Inasmuch as all of these individuals are supervisors, they would be excluded by definition from the term "employees." See Section 2(3) of the Act. 1e See United States Gypsum Company, 152 NLRB 624 . In contending that the Brethauers should be excluded , Respondent relies upon the Board 's decision in Walter- boro Manufacturing Corporation, 106 NLRB 1383. Walterboro is, however , inapposite to the present case. In Walterboro, the Board determined to exclude certain individuals, employed 75 percent of the time as maintenance personnel and 25 percent of the time as guards, because they were responsible, at those times when they were performing guard duties, to enforce against their fellow employees rules to protect plant property. In the present case, the Brethauers, as noted , perform their part-time guard duties and protect Respondent's store during nonbusiness hours ; i e , after their fellow employees have gone home 17 Respondent also contends that Feick and Newcomer should be excluded as confidential employees . However, the parties stipulated at the hearing to the exclusion of Newcomer as an office clerical employee . Since the record indicates that Feick 's duties are the same as those of Newcomer, except that Feick is on a different shift, we likewise exclude Feick as an office clerical employee. Inasmuch as both are excluded on this basis , we need not reach the question whether they also act in the capacity of confidential employees 18 Swift & Company, 129 NLRB 1391, 1393. HECK'S, INC. 767 Fick and Newcomer, and perhaps Casto and Tyree) in a unit of from 35 to 37 employees.19 In our opinion, this variance is a minor and insubstantial one. Hence, the unit in which the Union initially demanded recognition was not so inappropriate as to relieve Respond- ent of its obligation to bargain 20 Moreover, at no time did the Respondent raise any question, in refusing to meet and discuss the Union's request for recognition, as to unit inclusions or exclusions. On the contrary, by its refusal to consider the Union's request for recognition and the offer to prove its majority, it foreclosed any clarification by the Union as to the scope of its requested unit. b. The contention that the Union did not represent an uncoerced majority Respondent contends that a number of cards received in evidence by the Trial Examiner should be rejected, some because they were signed or solicited by the department heads, whom we have found to be super- visors, and others because the employees were coerced into signing them on the basis of the threat that, if they did not sign, they would lose their jobs after the Union organized the store. Respondent further contends that, in view of the presence in the Union's card showing of authorizations signed by the department heads and other personnel in excluded classifications, the Union's majority, if any, is unclear. Finally, Respondent contends that the Union's entire card showing should be rejected because it has been "tainted" by the participation of the department heads in the Union's organizational campaign. We find merit in Respondent's contention that certain cards should be excluded, but we find, nevertheless, that the remaining cards show that the Union represented a clear, uncoerced majority at the time of its demand for recognition on October 22. The Trial Examiner received in evidence a total of 37 authoriza- tion cards signed by personnel at the store here involved. Of these, we exclude the cards of the five regular or acting department heads (John McClung, Shepard, Parrish, Perry, and Eddy), the card of the guard Griffin, the card of the office clerical Feick, three more cards (those of Murray, Thomas, and Lee) which were solicited by Department Head Perry,21 and the cards of two employees who testified they were coerced into signing on the basis of threats to their job security. Even if we were also to exclude the cards of three more ie I.e , the total complement of 47 less the 7 department heads, the guards, the 2 office clericals, and possibly Casto and Tyree. If Casto and Tyree were , in fact, temporary employees , they would be excluded . E g , Owens-Corning Fiberglass Corporation, 140 NLRB 1323, 1326. 20 The Hamilton Plastic Molding Company, 135 NLRB 371, 373. a The record indicates that Perry also solicited the card of Griffin, which we have already excluded, and that Department Head Shepard solicited the cards of the office clerical, Feick, and Department Head John McClung, which cards we have likewise al- ready excluded . There is no indication that any other cards were solicited by supervisors. 768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees, to whom offers of proof were made that they likewise signed under similar threats,22 and the cards of the alleged temporary employees Casto and Tyree, the Union would still possess a majority of at least 20 in a unit of 35.23 While it is true, as Respondent asserts, that the five regular or acting department heads, just mentioned, participated in varying degrees in the Union's campaign to organize Respondent's Parkers- burg store, we do not believe, in the circumstances of this case, that their involvement was sufficient to "taint" the Union's entire card showing. At the time of the Union's organizational campaign in October, management itself did not consider these department heads to be supervisors, and they were not informed that they enjoyed such a status until December 18, 1964, almost 2 months after the demand for recognition. Nor does it appear that the employees regarded these department heads to be supervisors at the time of the Union's campaign . Accordingly, we are not convinced that their participation in the campaign constituted a coercive element sufficient to destroy the 'validity of the Union's card showing.24 And, as we have found, even eliminating the authorization cards solicited or signed by these depart- ment heads and the other cards previously discussed, the remaining authorizations are more than sufficient to establish that the Union had a majority. In view of all the foregoing, including the campaign by Respond- ent's supervisors to defeat the organization of Respondent's employ- ees and the discriminatory discharges, we find, in agreement with the Trial Examiner, that the Respondent has, on and since Octo- ber 22, 1964, refused to bargain with the Union in violation of Section 8(a) (5) and (1) of theAct.25 ORDER. Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Heck's Inc., Parkersburg, West Virginia, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in Food Store Employees Union, Local #347, Amalgamated Meat Cutters and Butcher Workmen of 22 The offers of proof were rejected by the Trial Examiner as Or a majority of 22 in a unit of 37, including Casto and Tyree 94 See Aero Corporation, 149 NLRB 1283. The Trial Examiner 's decision in the afore- mentioned case involving Respondent ' s Ashland , Kentucky, store, did not issue until October 28, 1964, subsequent to the Union's demand for recognition herein. In that case, as noted, the Trial Examiner rejected Respondent 's contention that the department heads at the Ashland store were not supervisors , and found instead that they possessed that status. The Board ultimately adopted these findings. 25 Joy Silk Mills, Inc., 85 NLRB 1263, enfd. 185 F. 2d 732 ( C.A.D.C. ), cert denied 341 U.S. 914 HECK'S, INC. 769 North America, AFL-CIO, or in any other manner discriminating against employees in regard to hire or tenure of employment, or any terms or condition of employment. (b) Refusing to bargain collectively with the above-named labor organization as the exclusive representative of all its employees in the appropriate unit with respect to rates of pay, wages, hours'of employment, and other terms and conditions of employment. (c) Coercively interrogating employees in respect to their union activities. (d) Threatening employees with reprisal for their union activities. (e) Soliciting employees to disavow their membership in a union. (f) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer immediate and full reinstatement to employees John Brethauer and Shirley Davis and make them whole for any loss of pay suffered by reason of the unlawful discrimination against them, in the manner set forth in the section of the Trial Examiner's Decision entitled "The Remedy." (b) Preserve and, upon request, make available" to the Board or its agents,.for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Notify John Brethauer and Shirley Davis if presently serving in the Armed Forces of the United States of their right to full rein- statement upon- application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (d) Upon request, bargain collectively with Food Store Employees Union, Local #347, Amalgamated Meat Cutters and Butcher Work- men of North America, AFL-CIO, as the exclusive representative of all employees at its Parkersburg, West Virginia, store, excluding office clerical employees, guards, professional employees, and all super- visors as defined by the Act, with respect to wages, hours, grievances, or other terms and conditions of employment and, if an understand- ing is reached, embody such understanding in a signed agreement. (e) Post at its store in Parkersburg, West Virginia, copies of the attached notice marked "Appendix." 26 Copies of said notice, to be furnished by the Regional Director for Region 9, shall, after being 28 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, Enforcing an Order." 770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD duly signed by an authorized representative of the Respondent, be posted 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 to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the said Regional Director for Region 9, 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 complaint be, and it hereby is, dis- missed insofar as it alleges any violation of Section 8 (a) (1) not found by the Board and insofar as it further alleges that Respondent violated Section 8(a) (3) and (1) of the Act by discharging Supervisors Eddy and Perry. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : WE WILL NOT discharge or otherwise unlawfully discourage you from being members of Food Store Employees Union, Local $347, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, or any other union. WE WILL NOT unlawfully question you in respect to your union activities, threaten you with reprisals therefor, or solicit you into disavowing your union membership. WE WILL NOT violate any of the rights you have under the National Labor Relations Act to join a union of your own choice or not to engage in any union activities. WE WILL offer to Shirley Davis and John Brethauer immediate reinstatement to their former or substantially equivalent posi- tions without prejudice to their seniority or other rights and privileges, and make each of them whole for any loss of pay suffered as a result of the discrimination against them. WE WILL, upon request, bargain collectively with the Union named above and, if an understanding is reached, sign an agree- ment covering such understanding. The unit represented by this union is all our Parkersburg, West Virginia, store, employees, excluding office clerical employees, guards, professional employ- ees, and supervisors as defined in the Act. All our employees are free to become, remain, or refrain from becoming or remaining, members of any labor organization, except as that right may be affected by an agreement requiring membership in HECK'S, INC. 771 a labor organization as a condition of employment, as authorized in Section 8(a) (3) of the National Labor Relations Act, as amended, as modified by the Labor-Management Reporting and Disclosure Act of 1959. HECK'S INC., Employer. Dated---------------- By------------------------------------- (Representative) (Title) NoTE.-We will notify John Brethauer and Shirley Davis if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any questions concerning this notice or com- pliance with its provisions, they may communicate directly with the Board's Regional Office, Room 2023, Federal Office Building, 550 Main Street, Cincinnati, Ohio, Telephone No. 684-3627. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon a charge and an amended charge filed by the above-named labor organiza- tion on October 30 and November 3, 1964, in Case No. 9-CA-3363, the General Counsel of the National Labor Relations Board issued his complaint and notice of hearing dated December 23, 1964. On December 24 a charge was filed in Case No. 9-CA-3415, and an order consolidating the two cases, a complaint in the latter case, and a new notice of hearing were issued and served on February 17, 1965. The Respondent filed an answer to each complaint. The complaints allege and the answers deny that the Respondent has engaged in and is engaging in unfair labor practices in violation of Section 8(a)(1), (3), and (5) of the National Labor Rela- tions Act, as amended. Pursuant to notice, a hearing was held in Parkersburg, West Virginia, on March 16 and 17, 1965, before Trial Examiner C. W. Whittemore. At the hearing all parties were represented, and were afforded full opportunity to present evidence pertinent to the issues, to argue orally, and to file briefs. A brief has been received from the Respondent. Disposition of the Respondent's motion to dismiss the complaints, upon which ruling was reserved at the hearing, is made by the following findings, conclusions, and recommendations. Upon the entire record thus made, and from my observation of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Heck's, Inc., is a West Virginia corporation with principal office at Nitro, West Virginia , and is engaged in the retail department store business at various locations in West Virginia and Kentucky. During the year preceding issuance of the complaint the Respondent's gross volume of sales exceeded $500,000 in value. During the same period its direct inflow of goods, from points outside West Virginia, exceeded $50,000 in value. The Respond- ent's Parkersburg, West Virginia, store is the one operation here involved. The complaints allege, the answer admits, and it is here found that the Respond- ent is engaged in commerce within the meaning of the Act. 217-919--6 6-v o f 15 6-5 0 772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE CHARGING UNION Food Store Employees Union, Local #347, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, is a labor organization admitting to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. Setting and major issues The events from which these consolidated cases stem all occurred within a period of less than 3 months after efforts at self-organization were begun among the Respondent's some 45 employees at its Parkersburg store, early in October 1965. The alleged violations of the Act included: (1) a refusal to bargain with the Charging Union although it represented a majority of the employees and despite its offer to display proof of majority status; (2) the unlawful discharge of four employees (Noah Eddy on October 31, John Brethauer and Shirley Davis on October 20, and Ruie Perry on December 19, all in 1964 ); and (3 ) various acts of interference, restraint, and coercion. B. Interference, restraint, and coercion Based upon the detailed and credible testimony of the employees concerned, it is found that the following acts were engaged in by Darrell Ellis , the store 's hardware manager, admitted by the Respondent to be an agent of "the Respondent acting upon its behalf." 1 (I) On October 20 Ellis asked employee Jerry Brethauer "who had signed." The employee asked what he meant . Ellis replied that he knew a union man had been at his house and also at the home of Ruie Perry. (2) About the same date Ellis told the same employee that the Union "wouldn't go" in this store . The employee asked why Ellis said that if it did, the store would be moved to Huntington. Ellis also quoted Haddad (the head of the Company) as saying that after "this whole business was over" he would fire "everybody that had signed up for the Union." (3) In the same month Ellis asked employee Terrell if he had signed a union card, and then asked him to write a letter to Haddad stating that he "wanted out of the Union." (4) Also on October 20 Ellis asked employee Spiker if she had ever worked in a factory where there was a union, and then warned her "it is rough where there is a union." A few days later he told her he knew of the union meeting held and what was said by the "lady" there. He then told her that he knew of employees who "wanted out of the Union" and who were going to write letters to Haddad. Ellis also declared that there was a "legal " way of keeping a union out , as well as a "dirty" way, and the "dirty" way would be used if they had to. (5) About the same date Ellis came to employee Shackleford and asked him if he had signed a union card . The employee admitted the fact. Upon this Ellis asked if any employee had contacted him. Shackleford replied in the negative and Ellis pressed for information as to who did contact him . The employee said Union Rep- resentative Gunnoe had. (6) Later the same day Ellis returned to Shackleford and asked if employee John Brethauer had influenced him "in any way to join the Union." When the employee said no, Ellis declared that John Brethauer was "already in trouble ." He demanded to know why he had signed. (7) Finally, late in October, and after being convinced by Ellis that his "chances would be better" if he did, Shackleford wrote a letter to Haddad telling him he was sorry for "getting involved in the union ." Ellis told him , "You won't even advance [if you are] in the Union." I conclude and find that the above-described conduct of Ellis was unlawful inter- ference, restraint , and coercion of employees in the exercise of rights guaranteed by the Act. I L I llis was called as a witness by the Respondent, but was not asked concerning the specific remarks attributed to him by the employees He merely answered in the negative when asked if he had made , during October 1964, any "threats against employees , promised them benefits , and interrogated them as to their union activities." Such general denials have small weight , and plainly are not sufficient to serve as credible refutation of the forthright and detailed testimony of the employees. HECK'S, INC. 773 Other unlawful conduct includes: (1) About October 20 employee Susan Lee, according to her uncontradicted tes- timony, was called to the office of Billy Hull, then the store manager. Hull asked her if she had signed a union card. She said she had not. He then asked her if she had attended a union meeting at the home of Ruie Perry, whose discharge is described below. (2) On November 3 Union Representative Gunnoe came into the store as a cus- tomer. Assistant Manager Copley pointed Gunnoe out to Skaggs, then the store manager, as "being from the Union." According to his own testimony, Skaggs then called Haddad, who told him to ask Gunnoe to leave the store. Although it is undis- puted that Gunnoe entered the store as a customer and spoke to no employee about anything, Skaggs ordered him from the store, and when Gunnoe objected to such treatment the manager called the police. Such public treatment of a union represen- tative, in the presence of employees, was plainly coercive.2 (3) On the same day that Darrell Ellis warned Spiker, as found above, that it was "rough" where a union represented employees, she was called into the office where Manager Hull told her he had let employees Brethauer and Davis go because they were "soliciting" for the Union. He declared that he could fire her, as well, for the same reason, but had decided not to "fire anybody else." 3 (Two or three days later he was summarily transferred to another store.) The conduct of both Skaggs and Hull, described above, constitutes interference, restraint, and coercion of employees in the exercise of rights guaranteed by Section 7 of the Act.4 C. The discharges 1. John Brethauer and Shirley Davis These two employees were discharged on the same day, October 20, 1964, by Store Manager Hull, and for the same claimed reason. Hull said he fired them "for solicit- ing in the store." He admitted, as a witness, that he took this summary action, not on the basis of any personal knowledge, but upon information which he took no trouble to investigate given him by two employees, neither of whom was called to cor- roborate his claim. As a witness Davis admitted that she had signed a union card and had attended union meetings, but flatly and credibly denied that she had ever got any cards signed, anywhere. Brethauer admitted that he had obtained some signatures to cards in the store, but there is no evidence that he interfered with anyone's work at any time. Nor is there credible evidence in the record that any published rule existed in the store against solicitation. Counsel for the Respondent placed in evidence a printed placard bearing the legend "No Soliciting Without Permission," which former Man- ager Skaggs said he had posted in July, and so far as he knew had never been taken down. Plainly the document placed in evidence had never been "put up," anywhere, at any time It was clean, unsoiled, and obviously fresh from the printer. Further- more, in a prehearing affidavit to a Board agent Skaggs admitted that he had stated, "I never told any employee that he or she would be fired, terminated, let go, or dis- missed for soliciting in any store that I ever managed." And "I have never directed any assistant manager to so inform any employee of such." Nor does any such rule appear in a booklet distributed to all employees which contains the "basic rules and regulations of the company." 7 As a witness Skaggs said he told Haddad that Gunnoe was "disrupting work." He made no claim of such disruption while on the witness stand. Indeed it appears that whatever disruption there may have been was caused by his own unlawful conduct. 3 Hull merely answered in the negative when asked the general question as to whether he had ever threatened reprisals for engaging in union activity . This geneial denial is not credited. * In my opinion , competent evidence does not sustain the allegation of "surveillance" on the night of November 3. Union Representative Gunnoe's testimony that he was told by employees Glenn Terrell, Helen Alleman, and Betty Shepard that they saw com- pany officials Angel and Copley sitting in a car 150 feet from the entrance to the union hall finds no support in the testimony of these employees Gunnoe admitted that he could not make them out "too plainly" at the distance of 150 feet, at night. Nor is there sufficient evidence in the record , in my opinion , that any raises granted in mid- October 1964 were given for the purpose of discouraging membership in the Union, or to undermine the union campaign. 774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I am convinced and find that these two employees were discharged, not for violation of any rule, but to discourage union membership. Such discrimination constituted interference, restraint, and coercion of employees in the exercise of rights guaranteed by the-Act. 2. Noah Eddy This employee, hired the last of September 1964 as a trainee for possible depart- ment head, was fired on October 31. According to his credible testimony he was called into Manager Skaggs' office on October 27 and berated for "speaking out against the company" at a union meeting he had attended a few days before. Skaggs declared he could call 13 witnesses to prove it, and angrily said that no union would "nego- tiate with us," referring presumably to the written demand received a few days earlier by Haddad He declared that he should fire the employee on the spot. The manager apparently thought better, however, of such an overt violation of the- Act, and waited until October 31, when he discharged Eddy, giving him as a reason: "continuous tardiness and unwillingness to work." As a witness Skaggs said he fired Eddy for tardiness and "personal appearance." No reliance upon his claim of tardiness can be placed, since in his affidavit to a Board agent he said that tardiness was not a factor in the dismissal. Furthermore, while on the witness stand, Skaggs claimed he had warned Eddy in August, and the employee was not hired until September 30. I can believe no part of Skaggs' testimony concerning this discharge. He finally admitted, reluctantly, that he had been told of Eddy's union activities, and I conclude and find that it was to discourage such activity that Eddy was dismissed. 3 Ruie Perry Ruie Perry, an employee called a "department head" who earned only $1.40 an hour, was discharged on December 19, 1964, for the simple and admitted reason that she sat at a table in a public restaurant, during her supper hour, with Union Represen- tative Gunnoe The Respondent admits that not until it received (apparently) the Trial Exam- iner's Decision a in a case involving another of its stores, had it ever considered department heads in its stores to be supervisors. Shortly after the issuance of this decision on December 18, all store department heads were assembled and told that because of it they would thereafter be management representatives, and must not engage in any union activities. During her supper hour that evening Perry went to eat at a restaurant, and sat at a table with Gunnoe. She was seen there by employee Thomas, who promptly informed the then store manager, one Angel, what she had seen. Angel admitted that he fired Perry the next day upon the basis of what he had been told by informer Thomas. Even if it be considered that merely because management told her on December 18 that she was a supervisor, she thereby became one , discharging her merely for her presence at the same table with a union representative in a public restaurant plainly is repugnant to the purposes of the Act. The real purpose of the discharge, I believe, was to discourage union membership on the part of other employees , as well as of Perry, and interfered with, restrained, and coerced employees in the exercise of rights guaranteed by the Act. D. The refusal to bargain During the morning of October 22, 1964, Sherwood Spencer, an officer of the Union, telephoned to Hull, then the store manager, and asked for recognition and bargaining, claiming majority status for the Union. Hull said he was being transferred from this store that day, and suggested that Spencer call Haddad, head of the com- pany. Spencer was unable to reach Haddad by telephone, and later the same day sent a registered letter to him, advising him of the Union's majority, requesting "rec- ognition for bargaining," and offering to supply him with copies of signed application cards if he doubted the majority claim Haddad received the demand on October 23, but has never replied to it. On November 3 Haddad did call Spencer on another matter and when the latter reminded him of the unanswered request, Haddad brushed it aside by claiming he was too busy. The Respondent's answer merely denies the factual allegation of a refusal to bar- gain. Neither Haddad nor any other company official at the hearing offered any reason for the failure to respond to the Union's demand. 'Heck's, Inc, d/b/a Heck's Discount Store, 150 NLRB 1565. HECK'S, INC. 775 The fact of refusal, then, is amply established. Competent documentary evidence, in the form of authentic signed authorization cards, obtained before the letter of demand on October 22, establish and it is found that on that date the Union repre- sented a clear majority of all employees in the appropriate unit alleged in the ,complaint- All employees of the Respondent at its Parkersburg, West Virginia, store, exclud- ing all office clerical employees, guards, professional employees, and all super- visors as defined in the Act. A list of store employees on the payroll during the week of October 22, prepared by the Employer, contains a total of 47 names During the hearing it was agreed by -the parties that two employees on this list should be excluded (Griffin, a guard, and Newcomer, an office clerical). The total is thus reduced to 45 Counsel for the Respondent at the hearing claimed that certain department heads should be excluded as supervisors- John McClung, Helen Richards, Betty Shepard, Noah Eddy, Rudolph Parrish, and Ruie Perry. General Counsel took the contrary position. On the basis of the evidence in this record I am unable to find that department heads at this store, as a class, are supervisors within the meaning of the Act. There is no credible evidence that they possess, or exercise, any supervisory authority other than that set out in a booklet containing "basic rules and iegulations" distributed to all employees by the Company. Following a description of the manager and assistant manager appears the text: In each department is an employee who is called a department head. This lady or gentleman will assist you in learning your duties and will relay to you all com- pany policies affecting your department Should you have personal problems requiring time off, or if you desire overtime work, your department head will clear such matters with the store manager. [Emphasis supplied ] I find no merit in the claim that the above-named employees should be excluded from the unit. (As noted heretofore, not until mid-December 1964 did the Respond- ent itself consider department heads to be supervisors, in another of its stores.) Nor is theie merit in the same counsel's contention that one Casto should be excluded because he had been hired only for the Christmas rush Actually Casto was hired in July 1964, and even in these days of advance sales, there is no credible evi- ,dence that in Parkersburg, West Virginia, the Christmas sales begin in July. Darrell Ellis, however, the hardware manager, according to his own testimony, will be excluded as a supervisor within the meaning of the Act. Not only is he con- ceded to be such by the Respondent, but according to the record he receives a monthly salary exceeding by $50 that of any other "department head." He admittedly carries a key to the store. A total of 33 authentic authorization cards are in evidence. Thirty-three is a plain majority of 44. I conclude and find that on October 22, 1964, by virtue of its majority status, the Charging Union was, and at all times since then has been, the exclusive bargaining representative of all employees in the above-described appropriate unite It is further concluded and found that by refusing to bargain with the Union since October 23, 1964, the Respondent has interfered with, restrained, and coerced employ- ees in the exercise of rights guaranteed by Section 7 of the Act. IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent, set forth in section III, above, occurring in con- nection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. 61 consider immaterial to the issue of majority representation testimony of a few em- ployees, called by the Respondent, who claimed disaffection with the Union, although admittedly having signed union cards and never having revoked them One such em- ployee, Hazel Thomas, has been found to have been the informer in the case of Rule Perry, and her testimony is unreliable It appears reasonable to believe that whatever disaffection there may have been was caused by the Respondent's own unfair labor prac- tices, including Ellis' efforts to get employees to write such letters to Haddad. In any event, at no time has the Respondent claimed that it was refusing to bargain because of such disaffection. 776 DECISIONS OF NATIONAL LABOR -RELATIONS BOARD V.. THE REMEDY Having found that the Respondent has engaged in unfair labor practices it will be recommended that it cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. It will be recommended that the Respondent offer to employees Noah Eddy, John Brethauer, Shirley Davis, and Ruie Perry immediate and full reinstatement to their former or substantially equivalent positions , without prejudice to their seniority or other rights and privileges . It will also be recommended that the Respondent make them whole for any loss of earnings they may have suffered by reason of the dis- crimination against them , by payment to each of them of a sum of money equal to that which he or she would have earned as wages from the date of the discrimination to the date of the offer of reinstatement, less net earnings during said period, and in a manner prescribed by the Board in F. W. Woohnorth Company, 90 NLRB 289, and with interest on the backpay due in accordance with Board policy set out in Isis Plumbing & Heating Co., 138 NLRB 716. It will also be recommended that, upon request, the Respondent bargain collectively and in good faith with the Charging Union and , if an understanding is reached, embody such understanding in a signed agreement. In view of the serious and extended nature of the Respondent's unfair labor prac- tices it will be recommended that it cease and desist from infringing in any manner upon the rights of employees guaranteed by Section 7 of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Food Store Employees Union, Local # 347, Amalgamated Meat Cutters and Butcher Workmen of North America , AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. By discriminating against employees , as described herein, to discourage mem- bership in and activity on behalf of the above -named labor organization , the Respond- ent has engaged in and is engaging in unfair labor practices , within. the meaning of Section 8 (a)(3) of the Act. 3. All employees at the Respondent's Parkersburg , West Virginia, store, excluding office clerical employees, guards , professional employees , and all supervisors as defined by the Act, constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9 (b) of the Act. . 4. By virtue of Section 9(a) of the Act the above-named labor organization has been since October 22, 1964, and now is, the exclusive bargaining representative of all employees in the above-described appropriate unit. 5. By failing and refusing to bargain with the said labor organization the Respond- ent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 6. By interfering with , restraining, and,coercing employees in the exercise of rights' guaranteed by Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices within the mean- ing of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.] New Haven, Meriden & Bridgeport Electrotypers Union No. 83, International Stereotypers and Electrotypers Union, AFL-CIO' and Meredith Printing Company (West Haven Plant) and New Haven Typographical Union , No. 47, International Typographi- cal Union, AFL-CIO. Case No. 1-CD-95. January 10, 1966 DECISION AND ORDER .Upon a charge filed on January 19; 1965, by Meredith Printing Company (West Haven plant) (herein referred to as the Company), 156 NLRB No. 76. .