Heck's Inc.

HECK'S INC. 1331 trative employees, supervisors, and plant guards as defined in the Act. PEPSI-COLA BOTTLING COMPANY OF ALASKA, INC., Employer. Dated---------------- By------------------------------------- (Representative ) (Title) 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. Employees may communicate directly with the Board's Regional Office, 327 Logan Building, 500 Union Street, Seattle, Washington 98101, Telephone 583-4583, if they have any question concerning this notice or compliance with its provisions. Heck's Inc. and Food Store Employees Union , Local #347 Amal- gamated Meat Cutters and Butcher Workmen of North Amer- ica, AFL-CIO. Case 9-CA-3679. June 24,1966 DECISION AND ORDER On April 8, 1966, Trial Examiner William J. Brown issued his Decision in the above-entitled proceeding, finding that the Respond- ent had engaged in and was engaging in certain unfair labor prac- tices and recommending that it cease and desist therefrom and take certain affirmative, action, as set forth in the attached Trial Exam- iner's Decision. The Trial Examiner also found that the Respondent had not engaged in other unfair labor practices and recommended that such allegation of the complaint be dismissed. Thereafter, the Gen- eral Counsel and Charging Party filed exceptions to the Decision and supporting briefs. The Respondent also filed an answering 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 [Members Fanning, Brown, and Zagoria]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner. IIn the absence of exceptions, we adopt pro forma, the Trial Examiner's finding that the unit herein , excluding office clerical employees, is appropriate. 159 NLRB No. 127. 1332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD [The Board adopted the Trial Examiner's Recommended Order.] [The Board dismissed the complaint insofar as it alleged viola- tions of the Act not found herein.] TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This proceeding under Section 10(b) of the National Labor Relations Act, as amended, hereinafter the "Act," came on to be heard before Trial Examiner William J. Brown at Huntington, West Virginia, on January 10, 1966. The under- lying charge of unfair labor practices had been filed, and thereafter duly served, on August 31, 1965,1 by the above indicated Charging Party, hereinafter sometimes the "Union." Thereafter, under date of October 26, the complaint -herein was issued, and duly served, by the General Counsel of the National Labor Relations Board, hereinafter the "General Counsel" and the "Board," respectively, acting through the Board's Regional Director for Region 9. The complaint alleged, in addition to jurisdictional matters and supervisory status of certain named individu- als, the commission of unfair labor practices defined within the scope of Section 8(a)(1) and (5) of the Act on the part of the above-indicated Respondent, here- inafter sometimes the "Company." The Company's duly-filed answer admits the jurisdictional allegations of the complaint and the supervisory status of four of the five named in the complaint and the commission of the unfair labor practices alleged. - At the hearing the parties appeared and participated as noted above with full opportunity to present evidence and argument on the issues. At the conclusion of the General Counsel's case,.the.Company rested its-case and moved specifically to dismiss the allegations respecting unlawful refusal to bargain, I reserved ruling on the motion Subsequent to the hearing a brief was received from the Company.2 On the basis of my observation of the witnesses at the hearing and on considera- tion of the entire record in this proceeding, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT COMPANY The pleadings and evidence herein establish and I find that the Company is a corporation organized under the laws of the State of West Virginia and is engaged in the retail sale of merchandise at various locations in the States of West Virginia, Ohio, and Kentucky. It operates a retail store at 16th Street, Huntington, West Virginia, which is the only location involved in the instant proceeding. During the 12-month period preceding issuance of the complaint herein, a representative period, the Company had a gross volume of retail sales in excess of,$500,000. During the same period its receipts of direct interstate shipments exceeded $50,000. I find, as the Company concedes, that it is an employer engaged in commerce within the purview of Section 2(6) and (7) of the Act. The volume of such com- merce justifies and necessitates exercise of the Board's jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED In accordance with the pleadings and evidence herein, I find that the Union is a labor organization within the purview of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Introduction to the issues Sometime about the first week in February, the Union commenced a campaign to organize employees of the Company at its 16th Street store. Woodrow Gunnoe, union business representative, was in charge of the campaign to which the Union 1 Dates herein, unless otherwise noted refer to the year'1965. The Company' s motion that its brief be incorporated in the record as a company ex- hibit, unopposed by other parties, was granted at the hearing. - - HECK'S INC. 1333 devoted five organizers including Business Representatives Jack Brooks and Carleton Cass and, apparently as a temporary union employee, Mrs. Hazel LaFon. A num- ber of employees signed cards authorizing the Union to represent them; three employees were called by the General Counsel to testify to the fact of their sign- ing, the remainder of the cards relied upon by the General Counsel were introduced in evidence at the hearing on the basis of the testimony of union representatives as to the circumstances of the signings.3 During the course of the Union's organizational campaign, it is alleged by the General Counsel, three company officials engaged in acts of interference with, restraint, and coercion of employees in their statutory rights to join or assist the Union. The Company denies these allegations. It appears from the pleadings and evidence that on August 23 and thereafter the Union demanded recognition by the Company as exclusive representative of employees for purposes of collective bargaining. The. Company has declined to recognize the Union, asserting a doubt as to the Union's claim to a majority, or to the uncoerced nature of any majority. B. Interference, restraint, and coercion 1. Ray Darnell: As'appears from the pleadings and evidence, Ray Darnell is the Company's personnel manager and a supervisor within the meaning of Section 2(11) of the Act. The General Counsel alleges and the Company denies that he interrogated an employee concerning union sympathy on or about September 7. Billie Raye Porter, a saleslady of the Company's clothing department, signed a union card early in the campaign and thereafter was active in assisting the union campaign She testified that on September 7, Darnell asked her if she wanted the Union to represent her. She testified that she replied that she did, whereupon Darnell asked her if she was sure and she told him that she was positive. Accord- ing to Porter, Darnell had a yellow legal sized pad and was writing on it. She denied that Darnell referred to the union claim of majority or that he gave her assurances of nonreprisal. It appears from her cross-examination that she is affianced to a former company employee who had been discharged. Darnell did not testify and I find Porter to be a thoroughly credible witness. I find, in accordance with her testimony that the Company, through Darnell, asked her if she wanted the Union to represent her. The evidence does not contain the clear indications of innocence of purpose or assurances against reprisal which characterized the Blue Flash Express, Inc., precedent, 109 NLRB 591, and I find and conclude that by this interrogation of Porter the Company engaged in an unfair labor-practice defined within Section 8(a)(1) of the Act. 2. James Doss: The pleadings and evidence establish that James Doss, assistant store manager, is, a supervisor within the meaning of Section 2(11) of the Act. The complaint alleges-and the answer denies, that on or about August 6, he inter- rogated an employee concerning her union activity and that of other employees and requested her to survey the ,union' activities of other employees and report thereon to him. Daisy Mae Maynard, an employee of the Company's toy department, signed a union card relatively early in the Union's campaign. She testified that she had three conversations with Doss on August 6. The first occurred, according to her account, between 11 a.m. and noon lust outside the store where Doss asked her when the next union meeting would be held. She answered that she did not know but would let him know if she found out. The second occurred on her way to lunch when, having learned the date of the next meeting she approached Doss and gave him the information. The third occurred after lunch when she and Doss were riding in the, latter's car to the warehouse, when, she testified, Doss asked her how many had signed up for the Union, the reason why they were signing; who was the ringleader at the 16th Street store, whether the employees of the 16th Street and Fifth Avenue store were joining together to organize a union, and who was the union representative in the campaign. Maynard was not cross-examined and Doss did not testify. I credit Maynard's testimony and find, in accordance with it, that Doss interrogated her concerning 8 The Company's brief-reasserts its position at the hearing that employee signatures on authorization cards could not be authenticated by the testimony of witnesses (union representatives) to the effect that the employees signed in their presence. I rejected this position at the hearing. See Winn-Dixie Stores, Inc., 143 NLRB 848, affd , 841 F.2d 750 (C.A. 6) ; cert denied 382 U.S. 830. 1334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD her union activity and that of other employees. By this questioning the Company engaged in an unfair labor practice within the scope of Section 8(a)(1) of the Act. The evidence does not establish that, as alleged in the complaint, Doss requested her to survey the union activity of other employees and report thereon to him. 3. Carlton Boothsby: The pleadings established that Boothsby is "Assistant to the Assistant Store Manager and/or Head of Clothing Department." The answer denies the complaint's allegation that he is a supervisor within Section 2(11) of the Act The complaint alleges that Boothsby interrogated and threatened employees. Porter testified that on or about September 9 Boothsby asked her if she had told Darnell she wanted the Union to represent her and when she admitted this, said that she was a "goner" and that the Company would fire her for her past record. She also testified that 2 days later, Boothsby told her that if she wanted a job she should leave the Union alone. Maynard testified that on September 20, Boothsby referred to information from Porter concerning a scheduled meeting with Government agents to supply state- ments, and asked her if she was going to attend it. After Maynard informed him that she would go if Billie Portei went, Boothsby, according to Maynard told her that their tenure of employment would not be affected by union membership but that union organization would do them no good and that the existing practice of voluntary pay raises would be changed and the Union would have to fight for them. Boothsby did not testify and, as noted above, I found Porter and Maynard to be credible witnesses. I find that Boothsby made the statements they attribute to him. There is no evidence, however, as to Boothsby's supervisory status and the allegations of the complaint as to unfair labor practices through his agency must be dismissed. C. The refusal to bargain The complaint alleges and the answer denies that all employees at the store here involved, excluding all office clerical employees, guards, professional employees, and all supervisors as defined in the Act constitute an appropriate unit for purposes of collective bargaining within the meaning of Section 9(b) of the Act. General Counsel presented no evidence on this issue. A unit of all employees at a single plant of an employer, being a unit of a type specifically referred to in the Act, is presumptively an appropriate unit absent evidence indicating the wisdom or nec- essity of finding a larger or smaller unit appropriate. See Appliance Supply Com- pany, 127 NLRB 319; Beaumont Forging Company, 110 NLRB 2200. Such a unit has been held appropriate at another store of the Company. 156 NLRB 760. I find that all employees of the Company at the store here involved constitute an appropriate unit. With respect to the matter of the exclusions-office clericals, guards, professional employees, and supervisors-they appear to be properly excluded. See Allied Stores of New York, Inc., d/b/a Stern's, Paramus, 150 NLRB 799, and Heck's, Inc., 156 NLRB 760. On the basis of the foregoing I find and conclude that the unit set forth in the complaint is an appropriate unit for collective bargaining within the purview of Section 9(b) of the Act. Union Representative Jack Brooks testified that on August 23 he telephoned Fred Haddad, the Company's president, 'asserted a claim to-represent a, majority of the people and offered to prove his claim by a card check. Haddad replied, according to Brooks, "No comment." Thereafter on the same day the Union wrote Haddad repeating the claim of majority representation in a unit of all pro- duction and maintenance employees, including backroom, warehouse, and sales employees and excluding office clerical employees, guards, and supervisors normally excluded under the Act, and the offer of a card check. On August 31 company counsel wrote the Union, referred to the earlier claim, and stated that on looking into the union claim the Company was convinced that the Union did not represent a majority and that it would not recognize the Union without a Board certification. On September 1, Brooks and Gunnoe had a conversation with Darnell. They testified that they repeated their request for recognition and Darnell refused on the basis that the Company had questioned employees and found the Union did not have a majority. When the union representatives pressed their offer of a card check and asked Darnell if he really doubted the validity of their claim, Darnell, according to Brooks and Gunnoe, changed the subject. I credit the testimony of Brooks and Gunnoe. On September 2 Gunnoe met Darnell again and asked him if he had changed his mind about the 16th Street store and Darnell said he had not. Gunnoe then HECK'S INC. 1335 asked him "well, you don't doubt that we have a majority of the people signed up, do you?" and, according to Gunnoe, Darnell replied, "No, you probably have a majority signed up on those pieces of paper, but I am not interested in those pieces of paper, because the people in Huntington didn't tell me this." Darnell did not testify and I credit Gunnoe's account. With respect to the number of employees in the above-described appropriate unit, General Counsel relies on the testimony of Porter and on General Counsel's Exhibit 7, identified by her as a list of company employees prepared by Gunnoe with her assistance and in her presence. She testified that she prepared a list of all store employees from her memory and from a check of the timecards and read from that list to Gunnoe as he prepared General Counsel's Exhibit 7. Over objection of the Company I received General Counsel's Exhibit 7 in evidence. General Counsel then asked the Company to furnish a list of employees against which the accuracy of General Counsel's Exhibit 7 could be checked and when the Company indicated that it had no list in its possession at the hearing the Gen- eral Counsel stated that he would like to ask for a subpena duces tecum to obtain such a company list. I suggested that General Counsel apply in proper form; General Counsel then stated that he did not intend to apply for the subpena. Porter conceded that the list in evidence as General Counsel's Exhibit 7 con- tained the name of one department head, Thomas Marks, but there is no evidence to indicate that he is a supervisor The list also includes, as a nonsigner, the name of Carl Boothsby, alleged in the complaint but not proved by the evidence, to be a supervisor. The Union's demand for recognition was made on August 23 and thereafter. Porter conceded that the list which bore an indecipherable date, as to the month, could have been prepared as early as June or as late as September. There are no indications-ton'the list as to classifications and evidence was received only as to Marks,' Boothsby, Clara Waters,4 Porter, and Maynard. On the basis of all the evidence and in view of my finding Porter credible, I find and conclude that General Counsel's Exhibit 7, absent contrary evidence from the Company, is an accurate list of employees of the Company as of August 22; in making this finding I view Porter's concession that the list could have been pre- pared as early as June or as late as September as an insufficient basis for discount- ing the list as an accurate list as of dates material to the issues. There remains, however, the matter of employees whom the Union would exclude from the appropriate unit in which it seeks recognition. The list totals 50 names and specifies 33 as having signed cards. Thirty-one cards were received in evidence as General Counsel's Exhibit A through EE. There is no basis in the evidence for a finding as to the number of employees, if any, on General Counsel's Exhibit 7 who were office clericals, guards, professional, or supervisory employees. Neither is there any basis for a finding as to the num- ber, if any, of cards in evidence which were signed by office clerical, guards, pro- fessional, or supervisory employees. While it might be urged, that it would be reasonable to assume that the number of excluded employees would normally be so small as to have no significance on the issue as to majority representation here, the law requires proof of all elements of an unfair labor practice, not by reasonable assumption, but by preponderance of the testimony on the entire record. The preponderance is lacking here on the vital issue of majority representation, and I recommends dismissal of the allegations of unfair labor practices, under Section 8(a)(5). In. this regard the statement of Darnell that he did not doubt that a majority had signed cannot supply the missing proof. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Company set forth in section III, above, and there found to constitute unfair labor practices, occurring in connection with the operations of the Company set forth in section I, above, have a close, intimate, and substan- tial 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 thereof. 4 Waters testified that she was hired by the Company July 12 and quit toward the end of August which would support the conclusion that the date of General Counsel 's Exhibit 7 is August 22. 1336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V. THE REMEDY In view of my findings above to the effect that the Company has engaged in certain unfair labor practices affecting commerce, I shall recommend that it cease and desist therefrom and post an appropriate notice to employees. Upon the basis of the foregoing findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. The Company is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By interfering with, restraining, and coercing its employees, the Company has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 5. Except as specifically found herein, the Company has not engaged in unfair labor practices alleged in the complaint. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in this case, I recommend that the Respondent, its officers, agents, successors; and assigns, shall: 1. Cease and desist from: (a) Interrogating employees about their union activities or the union activities of other employees in a manner constituting interference, restraint, and coercion within the meaning of Section 8(a)(1) of the Act. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights under the Act. 2: Take the following affirmative action which appears necessary and appropriate to effectuate the purposes and policies of the Act. (a) Post at its 16th Street store copies of the attached notice marked "Appen- dix." 5 Copies of said notice, to be furnished by the Regional Director for Region 9, shall, after being duly signed by the Respondent's authorized representative, be posted by the Company immediately upon receipt -thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by other material. (b) Notify the Board's Regional Director for Region 9, in writing, within 20 days from receipt of this Decision, what steps the Company ,has taken to comply herewitb.6 - - It is recommended that the complaint be dismissed as to allegations of unfair labor practices not herein found to have been engaged in. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Ordei of a Trial Examiner 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 interrogate employees about their activities or the activities of other employees on behalf of Food Store Employees , Local #347, Amalga- 61n the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order." e In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." MILLWRIGHTS LOCAL NO. 1699 1337 mated Meat Cutters and Butcher Workmen of North America, AFL-CIO or any other union, in a manner constituting interference, restraint, or coercion within Section 8 (a)( I) of the Act. WE WILL NOT in any like manner interfere with, restrain, or coerce employ- ees in the exercise of their rights under the Act. All our employees are free to become and remain members of the above Union or any other labor organization. HECK'S, INC. Employer. Dated------------------- By------------------------------------------- (Representative) (Title) 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 question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, Room 2023, Federal Office Building, 550 Main Street, Cincinnati, Ohio 45202, Telephone 684-3627. Millwrights and Machine Erectors' Local No. 1699, AFL-CIO (Swinerton and Walberg Company ) and Lysander D. Hamilton. Case 19-CB-1067. June 24,1966 DECISION AND ORDER On March 15, 1966, Trial Examiner James R. Webster issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take cer- tain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, Respondent and the General Counsel filed exceptions to the Trial Examiner's Decision and supporting briefs. 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 [Members Fanning, Brown, and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, the briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner., [The Board adopted the Trial Examiner's Recommended Order with the following modification : Add the following to paragraph 2(a) of the Trial Examiner's Recommended Order, and to the last paragraph of the notice attached to the Trial Examiner's Decision, 'No backpay is warranted here because the Union advised the Company that it could hire Hamilton without a referral slip, the Company then offered Hamilton a job, and Hamilton voluntarily declined it. 159 NLRB No. 81.