Heck's Inc.

186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Heck's Inc. and Food Store Employees Union, Local #347 Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO. Case 9--CA-3728 June 28, 1967 DECISION AND ORDER By MEMBERS FANNING, JENKINS, AND ZAGORIA On March 30, 1967, Trial Examiner Sidney Sher- man issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed excep- tions to the Decision and a supporting brief.' Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the 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 this case, and hereby adopts the findings, conclusions, and recommenda- tions ' of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner and hereby or- ders that the Respondent, Heck's Inc., Ashland, Kentucky, its officers, agents, successors, and as- signs, shall take the action set forth in the Trial Ex- aminer's Recommended Order. i The Respondent excepts to the Trial Examiner's finding that the union authorization card of employee Morris was properly authenticated, and, by motion incorporated in its brief, moves that the record be reopened and a subpena be issued, requiring the Trial Examiner to appear and testify concerning his qualifications as a handwriting expert. The Respondent contends that failure to grant its motion should result in the rejection of Morris' card, inasmuch as Morris did not testify at the hearing and no other witness testified that he saw Morris sign the card. After the hearing the parties stipulated that Morris was unavailable to testify, his whereabouts being unknown. The Trial Examiner (sec III, C, 3, b, 4 of his Decision), after comparing the purported siggnature of Mor- ns on the union authorization card with a specimen signature taken from the Respondent's payroll records, concluded that the card was signed by Morris, and found that such a comparison is a proper method of proving the authenticity of a signature (see In. 29 of the Trial Examiner's Decision and the authorities cited therein) The Trial Examiner further found that it is proper to presume that the card was signed on the date shown thereon (fn. 30 of the Trial Examiner's Decision). We agree with the Trial Examiner 's finding that Morris' card was properly authenticated. (See also Combined Metal Mfg Corp., 123 NLRB 895; Phdamon Laboratories, Inc, 131 NLRB 80, enfd. 298 F.2d 176 (C.A. 2).) In any case, we note that even without Morris' card the Union had a majority of employees in the appropriate unit when it made its recognition demand Accordingly , as we find the Respondent's motion to reopen the record lacking in merit, it is hereby denied. 2 We agree that the Respondent's polling of its employees was in the circumstances of this case violative of Sec. 8(a)(1) of the Act. Therefore, we find it unnecessary to rely on or adopt the Trial Examiner's additional or alternative grounds for that finding , as set forth in the last sentence of fn 10 of his Decision. TRIAL EXAMINER'S DECISION SIDNEY SHERMAN, Trial Examiner: The instant charge was served upon Respondent on October 22, 1965,' the complaint issued on December 16, and the case was heard on February 1, 1967. The issues litigated related to allegations of unlawful interrogation, threats of reprisal, creating the impression of surveillance, and unlawful refusal to bargain. After the hearing briefs were filed by Respondent and the General Counsel. On March 16, 1967, an order was issued proposing certain corrections in the record and the incorporation therein of certain ex- hibits, and disposing of certain other matters. No objec- tion has been received to this order, and it is hereby affirmed.' Upon the entire record and my observation of the wit- nesses, I adopt the following findings of fact and conclu- sions: 1. THE BUSINESS OF RESPONDENT Heck's, Inc.,3 herein called Respondent, is a West Vir- ginia corporation engaged in the operation of retail stores at various locations in the States of West Virginia' and Kentucky. The Respondent annually has gross sales of more than $500,000, and annually purchases from out-of-State points goods valued in excess of $50,000. Respondent is engaged in commerce under the Act. II. THE LABOR ORGANIZATION INVOLVED Food Store Employees Union , Local #347, Amalga- mated Meat Cutters and Butcher Workmen of North America, AFL-CIO, hereinafter called the Union, is a labor organization under the Act. III. THE UNFAIR LABOR PRACTICES A. Issues The pleadings, as amended at the hearing, raise the fol- lowing issues: 1. Whether Respondent's president, Haddad, told em- ployees on or about May 24, that he had discharged an employee when she admitted signing a union card? i All events herein occurred in 1965, unless otherwise stated 2 In addition, it is now ordered (1) that Respondent' s motions to strike appearing at pp 24 and 28 of the transcript, as to which ruling was reserved at the hearing, are hereby granted, and (2) that Respondent's ob- jection to evidence, which objection appears at p 100 of the transcript, and as to which ruling was reserved at the hearing, is hereby granted and the evidence objected to is hereby struck. 3 Respondent's name appears as amended at the hearing 166 NLRB No. 32 HECK'S INC. 187 2. Whether the interrogation of employees on October 8, by Respondent's operations manager, Darnell, vio- lated Section 8(a)(1) of the Act or was privileged under the Board's Blue Flash doctrine? 3. Whether Respondent's assistant store manager, Mitchell, unlawfully created the impression of surveil- lance? 4. Whether Mitchell told an employee that another su- pervisor had been discharged because of the Union and invited the employee to resign? 5. Whether Respondent's admitted refusal to recog- nize the Union violated Section 8(a)(5) and (1) of the Act? B. Sequence of Events Respondent operates a chain of discount stores in Ken- tucky and West Virginia. The instant case involves only its Ashland, Kentucky, store. The instant organizing campaign began early in 1965, and by October 8 the Union had obtained a number of signed cards from persons working in the Ashland store. On May 24, during the foregoing campaign, Respond- ent's president, Haddad, addressed the assembled store employees, and, after telling them, in effect, that the sig- ning of a union card would not immunize them from disciplinary action, cited an incident involving the discharge of an employee in another store who had volun- teered to him the information that she had signed a union card. There was some conflict in the testimony at the hearing, which will be considered below, as to the precise reason given by Haddad for the discharge of that em- ployee. On October 8, Union Agent Spencer called Respond- ent's counsel, Holroyd, stated that he had obtained signed cards from a majority of Respondent's Ashland employees, and requested recognition. Holroyd sug- gested that Spencer write him a letter to that effect. On October 8, Respondent's operating manager, Darnell, asked virtually all the employees in the Ashland store whether he (or she) wanted to be represented by the Union. In a letter of October 11 to Holroyd, Spencer re- peated the substance of the foregoing oral demand, offer- ing to show Respondent the Union's cards. On October 13, Holroyd replied by letter, declining to recognize the Union because of an alleged ambiguity in the Union's def- inition of the unit, and because a poll taken by Respond- ent demonstrated that the majority of the Ashland em- ployees did not wish to be represented by the Union. On October 25, Spencer again wrote Holroyd, renewing the Union's demand, but received no reply. There was uncontradicted testimony by employee Clare that early in October Assistant Store Manager Mitchell, an admitted supervisor,4 told her that Respond- ent knew which employees had signed, and which had not signed, union cards, and that the Union attained majority status when Clare signed a union card (on Oc- tober 6). C. Discussion 1. Union animus Respondent's union animus is amply attested by the Board's findings in 150 NLRB 1565 (Ashland store), 156 NLRB 760 (Parkersburg store), 158 NLRB 121 (Parker- sburg store), 159 NLRB 1151 (Huntington store), and 159 NLRB 1331 (Huntington store). Perusal of these cases shows that at the foregoing stores Respondent reacted to a union organizational campaign by mounting a counteroffensive of interrogation and threats, did not hesitate to resort to discriminatory discharges, and that it consistently rejected requests for recognition. Thus, in 150 NLRB 1565, involving a campaign in 1964 by a dif- ferent union (Retail Clerks) to organize the instant store, it was found that Respondent, through its president, Had- dad, and operations manager, Darnell, engaged in exten- sive interrogation, that a supervisor threatened em- ployees with discharge for union activity, and that an ac- tive union adherent was, in fact, discriminatorily discharged. 2. The 8(a)(1) issues a. The Haddad speech Riffe testified that on May 24, President Haddad told the assembled employees at the Ashland store that they could sign all the union cards they wished, but they still had to do their work, and that he then mentioned the case of a girl in Respondent's Parkersburg store who after volunteering to him the information that she had signed a union card, had been "fired on the spot." Menshouse testified to the same effect, and Maynard corroborated this version with only the, minor embellishment that Had- dad asserted that the Parkersburg employee had "flaunted" the fact that she had signed a union card. While agreeing otherwise with Riffe, Clare testified that Haddad interpolated the-explanation that the girl in Par- kersburg had been discharged because she took the posi- tion, in effect, that, having signed a union card, she was free to neglect her work, and Carter testified to substan- tially the same effect. All the foregoing employee witnesses were called by the General Counsel and were apparently sincere. Their testimony may be reconciled on the assumption that Had- dad, purposely or otherwise, cast his remarks in such a form that they were susceptible of different interpreta- tions. Thus, if he stated, as Maynard testified, that the employees could sign all the union cards they wanted, but still had to do their work, and, that he had discharged a Parkersburg employee for flaunting the fact that she had signed a union card, it was understandable that some of the employees, like Clare, would interpret the last re- mark, taken in context, as implying that the case of the Parkersburg employee was given as an illustration of Haddad's thesis that the signing of a union card did not relieve the employees of their obligation to do their job. However, if, as Menshouse, Riffe, and Maynard testified, Haddad did not make it clear that the discharge of the Parkersburg employee was for any reason other than her avowal of union adherence, it was expectable that some, at least, of the employees would construe his remarks as implying, if not that all union adherents would be sum- marily discharged, that Respondent, at the very least, would be quick to discharge union adherents who gave it any offense. Moreover, in resolving the foregoing con- flicting versions of Haddad's remarks, I deem it particu- larly significant that Respondent, without offering any ex- planation at the time, failed to call Haddad to testify, not- " The denial in the Respondent's answer of Mitchell's supervisory status was withdrawn at the hearing 188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD withstanding that it was pointed out to Respondent's counsel at the hearing that such failure would invite the inference that Haddad's testimony would not aid Respondent.5 In view of this, I am constrained to find that, as in- dicated by the testimony of Menshouse, Riffe, and Maynard, Haddad's remarks were couched in such a way as to lead his listeners to believe that adherence to the Union would subject them to reprisals, and that Respond- ent thereby violated Section 8(a)(1) of the Act. b. Darnell's interrogation Admittedly, Darnell on October 8 systematically inter- rogated all the employees in the Ashland store about their desire for union representation. According to Darnell, he approached the employees in the store and read the fol- lowing from a sheet of paper which he held in his hands: You are probably aware that the Food Handlers Union are (sic) trying to organize the store. They have made a demand of the Co. stating that they have a majority of our employees who desire them (the Union) to represent them. Do you want the Union to represent you? This will in no way have any bearing on your job. You do not have to answer this. The sheet also listed the names of the employees and opposite this list were three ruled columns captioned, respectively "Yes," "No," and "Neutral." According to Darnell he indicated in one or the other of these columns the nature of each employee's reply to his question re- garding their desire for union representation.6 He testified that the majority of the employees interrogated repu- diated the Union, and the tally on the sheet, eliminating the answers of those found below to be supervisors, shows that only 12 favored the Union while 23 opposed it. The answers of three employees were not recorded.' While three of the employees (Clare, Smith, and Menshouse) testified that Darnell's remarks to them cor- responded to the foregoing quoted matter, Rife testified only that Darnell asked her if she wanted to be represented by the Union, and Carter and Gates were specific that, in interrogating them, Darnell gave no as- surance that their answers would not affect their jobs. As I was favorably impressed by the demeanor of the latter three witnesses, and by the circumstantiality of their version of the interrogation incident, I credit them as against Darnell, and find that he offered them no as- surance against reprisals. 5 In his brief Respondent's counsel asserts that he did not defend the al- legation relating to Haddad's speech because of his understanding that it had been struck However, at the close of the General Counsel's case I stated on the record that I was reserving ruling on Respondent 's motion to strike that allegation, and in my order of March 16, 1967, that motion was finally overruled. On the same date I advised Respondent's counsel by letter that, if he deemed himself prejudiced by this ruling, I would en- tertain a motion to reopen the hearing to receive further evidence on the matter. No such motion was filed. 6 The foregoing document was offered in evidence at the hearing as Resp. Exh 1, but was received only for the purpose of showing what Dar- nell purportedly read to the employees. However, upon reconsideration, the document was by my order of March 16, 1967, received in evidence without any limitation, since the contents of the entire document were in effect, adopted by Darnell in his testimony ' Darnell testified that he may have missed a few employees in making the round of the store 8 Blue Flash Express, Inc., 109 NLRB 591; Johnnie's Poultry Co , 146 NLRB 770. Respondent contends that the foregoing interrogation was permissible under the Board's Blue Flash rule,8 which sanctions interrogation of employees about their desire for union representation, provided, inter alia, (1) that the purpose is to verify a union's contemporaneous claim to represent a majority of the employees, (2) that such interrogation is accompanied by an assurance against any reprisals for union activity, and (3) that such interrogation does not occur in a context of employer hostility to union organization. I am satisfied that none of the foregoing conditions was met here. As to (1), it is clear from Clare's undenied testimony related in more detail below, that Respondent already knew on October 6, which employees had signed cards and that when Clare signed a card on that date the Union had achieved majority status, and there is no evidence that Respondent believed that such majority had been obtained by improper means.9 Accordingly, Darnell's polling of the employees was not necessary to verify the Union's claim, and it seems fair to infer that Respondent's only reason for taking the poll was the ex- pectation that some of the union adherents would be reluctant to admit their true sentiments to Darnell, even if they were given assurance against reprisals, and that the result of such a poll would, therefore (as proved to be the case here), be more favorable to Respondent than a count of the cards known by Respondent to have been ac- tually signed. I do not believe that to permit such a "recount" by Respondent would conform to the letter or spirit of Blue Flash. 10 As to the requirement of Blue Flash that the interroga- tion be accompanied by an assurance against reprisals, it has already been found that in the case of at least three employees Darnell neglected to convey that assurance. As to the requirement of absence of union animus, it must be remembered that Darnell's interrogation oc- curred against the background of President Haddad's speech of May 24, in which, as found above, he cited the case of an employee whom he had discharged on the spot, when she announced that she had signed a union card. Although this speech had been delivered more than 4 months before the polling of the employees, such a dra- matic threat to their job security by the top representative of management could not have failed to make a lasting im- pression on the assembled employees. Moreover, it is relevant here to consider Respondent's union animus, as demonstrated by the Board' s findings in the various cases cited above, particularly the Board's findings that in March 1964, at the instant store, both Haddad and Darnell engaged in unlawful interrogation, 8 In any event , since the record, including Darnell 's own testimony, is devoid of any evidence that he asked any of the employees on October 8 about the methods used by solicitors for the Union to induce the em- ployees to sign the cards , it is clear that Respondent had no concern on this point. 10 Prior to Blue Flash, the Board had long held that systematic inter- rogation of employees about their union sentiments was unlawful as an in- vasion of their right to privacy and freedom from coercion in Blue Flash, the Board balanced the mischief of such interrogation against the interest of the employees in verifying the accuracy of a union's claim to represent a majority of his employees, and struck a balance in favor of the employer See Johnnie's Poultry Co , supra. However, where as here, there is ample basis for finding that the employer is already aware from other sources of the facts as to the Union's status, no legitimate purpose would be served by permitting him even the limited invasion of his employees' rights ac- corded by Blue Flash. HECK'S INC. Respondent threatened discharge of all the union ad- herents, and did discriminatorily discharge, Menshouse, a prominent union protagonist;11 and, so far as appears from the record, such unfair labor practices were still un- remedied on October 8.12 It is difficult to see how, under such circumstances, Darnell's poll could be deemed to meet the requirement of Blue Flash that such interroga- tion must not occur in a context of hostility to union or- ganization. It may be noted, finally, that, in finding interrogation of an employee to be coercive, the Board and the courts have frequently cited the fact that the employee falsely disclaimed any interest in union representation.13 Here, according to Darnell's own testimony the vast majority of the 38 Ashland employees disclaimed any desire for union representation, even though, as found below, 21 of them had signed union cards, and there is no evidence that any of them had prior to October 8 sought to revoke their cards. For all the foregoing reasons, it is found that Darnell's, interrogation violated Section 8(a)(1) of the Act. c. The Mitchell-Clare incidents Clare signed a union card on October 6. She testified that early in October, she had discussions about the Union with Assistant Store Manager Mitchell , who told her that Respondent knew what employees had and had not signed union cards , and that the Union had gotten "over the hump" and achieved majority status, when she signed a union card. Mitchell did not testify. I credit Clare. A statement reflecting such precise knowledge of the number of union adherents14 could not fail to create an impression of close surveillance by management of union activities, through employee informers or other- wise.15 It is accordingly found that, by creating such an impression, Respondent violated Section 8(a)(1) of the Act. Clare testified further that some time after Darnell's " 150 NLRB 1565, enfd. 369 F.2d 370 (C.A 6) 12 While Menshouse had been rehired by October 8, there was no evidence as to the extent to which Respondent had otherwise complied with the Board's order by that date. 13 See, e.g., 159 NLRB 1151, section III , D, of the Trial Examiner's Decision (involving Respondent's Huntington store), which was affirmed on this point by the Board , where the variance between the result of an employee poll and the card count was cited as a reason for finding the poll coercive. 14 Moreover, as found below, the Union did in fact get "over the hump" on October 6, when it obtained its 20th (and 21st) card (Both Clare and Brown signed cards on that date) i5 While it is not clear from Clare's testimony whether this conversation took place before or shortly after the October 8 poll, it is evident that Mitchell was not referring to that poll as the source of Respondent's infor- mation regarding the union sentiments of the employees For one thing, that poll elicited repudiations of the Union from the vast majority of the employees, and it is not apparent, in any event, how Respondent could have determined from that poll the precise date on which the Umon ob- tained the decisive card. Respondent cites certain testimony by Clare to the effect that she and Mitchell were on friendly terms, that she "probably " initiated discussions of the Umon with him, that she "might have" told him before the forego- ing incident that she knew that most of the employees had signed union cards ; and that, on the occasion in question, she agreed with Mitchell's ob- servation on this point. However, there is no evidence that Clare dis- closed to Mitchell the identity of the union adherents or that she herself had signed a card, and the fact that Mitchell and Clare were on friendly terms or that she initiated the discussions of the Union could not detract from the coercive effect of Mitchell's imputation to higher management of 189 visit to the store on October 8, Mitchell referred to a rumor then circulating among the employees that Store Manager McCann had been "discharged"16 because of "the union and the employees," and that, in this connec- tion, on a particular Saturday evening Mitchell told the witness that the employees and the Union had "shafted" McCann, and that the employees were not going to "shaft" Mitchell As Mitchell did not testify, I credit Clare. It is apparent from the foregoing that Mitchell at- tributed the actual or supposed downfall of McCann to the extent of the employees' union activity. Such a state- ment to an employee, implying, as it did, that manage- ment would not hesitate to discharge a supervisor for tolerating union activity, could not fail to impress upon such employee that those engaging in such activity might share the supervisor's fate. Accordingly, I find that Respondent thereby violated Section 8(a)(1) of the Act.17 The General Counsel alleged a further violation based on Clare's testimony concerning an invitation to her by Mitchell to resign her job. However, the most that can be made of Clare's rather confused testimony on this point is that, while this remark was made by Mitchell on the same evening that he referred to the "shafting" of Mc- Cann, the occasion for the remark was not Clare's union activity or sentiments but a disagreement over an entirely different matter, unrelated to the Union, and that the very next day Mitchell apologized to her therefor. Ac- cordingly, I find no violation here. 3. The 8(a)(5) issue a. The appropriate unit It was agreed at the hearing, and I find, that the follow- ing unit is appropriate for purposes of collective bargain- ing: All employees at Respondent's store in Ashland, Ken- tucky, excluding guards, professional employees, and su- pervisors as defined in the Act.18 exact knowledge of the identity of the union adherents. 16 As McCann apparently continued as store manager at Ashland until November 1966, the foregoing discussion either must have occurred after that date, or must have been based on misinformation as to McCann's status. 17 Had McCann in fact been discharged because of a permissive at- titude toward the Union, such discharge would clearly have been unlaw- ful Talladega Cotton Factory, Inc., 106 NLRB 295, enfd. 213 F 2d 208 (C.A 5), Jackson Tile Manufacturing Co., 122 NLRB 746, enfd. 272 F 2d 181 (C.A 5); General Engineering, Inc., and Harvey Aluminum (Incorporated), 131 NLRB 648 The rationale of these cases is that such a discharge tends to instill in employees the fear that they will suffer the same fate if they persist in their union activities. Such fear is nonetheless real, where, as here , the employees are told that their union activities caused the supervisor's discharge , whether or not that was actually the case. i8 The original complaint provided for the exclusion of office clericals from the unit. The record shows that on October 8, Respondent had only one office clerical employee-Ruth Conley. (Cahal, who also worked in the office, was classified as a department head, and is found to be a super- visor.) Conley worked in a small enclosure in a corner of the store where, among other things, she compiled records of cash receipts and processed employee timecards Some time after October 8, she was transferred to the cosmetics department. At the hearing, the General Counsel moved to amend the complaint to include office clerks and Respondent stipulated to their inclusion. Under all the circumstances, I find that such inclusion was proper (Heck's Inc, 159 NLRB 1151; Ohrbach's, Inc, 118 NLRB 231; Taunton Supply Corp, 137 NLRB 221), particularly as it was agreed to by Respondent at the hearing (cf. Heck's Inc, 156 NLRB 760, fn. 17; Heck's Inc, 159 NLRB 1151 fn 1) 190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It was also agreed at the hearing, in conformity with the Board's finding in the prior case involving the instant store,19 that the six department heads at Ashland were supervisors , and that the night watchman at that store was a guard. They will accordingly be excluded. b. The Union's majority status At the hearing Respondent presented a document con- taining a list of 45 names, which were identified by Mc- Cann, the former manager of the Ashland store, as the names of all employees and department heads on the payroll for that store during the week beginning October 8.20 Of the foregoing persons, it was stipulated at the hearing that six, who were listed as department heads, were supervisors and that one who was listed as the "nightwatchman" was a guard. Of the remaining 38, there was a dispute at the hearing only as to Roger Davis, who was listed on the exhibit as a department head. The General Counsel also contended at the hearing that the list was incomplete. However, after the hearing, the General Counsel withdrew this contention,21 and Respondent indicated that it was satisfied that, as con- tended by the General Counsel, Davis was not a super- visor on October 8, but an employee.22 It follows that the parties are now in agreement, and it is found, that on Oc- tober 8 and during the ensuing week the unit consisted of 38 employees. At the hearing the General Counsel offered in evidence 30 signed union authorization cards, which bore dates prior to October 8.23 One of these cards, signed by Mc- Guire, was later withdrawn, another was rejected because signed by France, a supervisor, and the card of Color is hereby rejected for the same reason. Of the remaining 27 cards, the record shows that 6 purport to bear the signatures of individuals who were not in Respondent's employ on October 8. There remain 21 cards, most of which are challenged in Respondent's brief on various grounds, as follows: 1. Twelve cards are challenged on the ground that the signatory did not testify at the hearing. However, these cards were properly authenticated by witnesses at the hearing, who attested to the signing of the card. 2. Criswell's card is contested on the ground that he was a department head. However, the record does not support this contention. 3. Clare's card is attacked on the ground that France, her department head, talked to her about the Union. While Clare ' initially acknowledged that, before she 19 150 NLRB 1565 20 Trial Examiner's Exh 1. 21 Trial Examiner's Exh 2 22 Trial Examiner's Exh 3 23 An additional card, that of Linda Fields, bore the date of November 27, which was subsequent to the Union's demands for bargaining in Oc- tober At a later point in the hearing , the General Counsel offered in evidence 19 new cards , of which 17 were shown to have been signed by persons employed in Respondent's Ashland store on various dates in January 1967 The General Counsel would add these cards to those already in evidence , and contends that there was a continuing demand by the Union, in January 1967, at a time when, as allegedly shown by such cards, the Union enjoyed majority status , and that such demand was rejected by Respondent for invalid reasons However , in view of my ultimate findings below , there is no need to pass on this issue. 24 149 N LRB 1283 , 1287, enfd. 363 F 2d 702, 708 (C A D C ) 25 Radio Station KVEC, 93 NLRB 618, 623. signed the card, she discussed the Union at some length with France, who expressed the view that it "would be a good thing" if the Union organized the employees, at a later point in her testimony she professed to be unable to recall whether France talked to her about the Union be- fore or after she signed the card, and averred that she had little contact with him other than in connection with her work, as they were not "very fond of each other." She in- sisted, moreover, that she signed the card at the request of a union agent, after discussing the pros and cons of union representation, and she denied that France's endor- sement of the Union had any bearing on her decision to sign the card, explaining that she signed it because she "didn't like how things were," and she did not like France and how he "ran things." It thus appears that it was her resentment of France's conduct as a supervisor, rather than his endorsement of the Union, that impelled her to sign the card. Moreover, in Aero Corporation 24 in rejecting the con- tention that a card was invalid because solicited by a minor supervisor, the Board said: ... to permit Respondent now to rely on Johnson's activities to justify its refusal to recognize the Union designated by a majority of its employees, would en- courage Respondent to have just such marginal su- pervisors join in the employees' organizing activity, secure in the knowledge that if the Union should gain a majority, disclosure of the supervisor's real status would defeat that majority. This rationale was specifically approved by the court of appeals in that case. Under all the foregoing circumstances, it is found that Clare's card is valid.25 4. The cards of Wheeler and Morris were attacked on the ground that they were authenticated at the hearing only by specimens of their signatures taken from Respon- dent's payroll records.26 However, after the hearing the parties submitted a stipulation to the effect that Wheeler's card was signed by him on the date shown thereon,27 and, in view of this stipulation, no valid reason appears for re- jecting his card.28 As to Morris, it was stipulated only that his whereabouts were unknown and that he was unavaila- ble to testify. However, I am satisfied from a comparison of his purported signature on the union card with the specimen referred to above that the card was signed by him.29 While there was no testimony at the hearing that such card was signed on the date shown thereon (October 2), it is proper to presume the accuracy of that date.30 It is concluded therefore that on October 8, the Union 26 Tax-withholding certificates 29 See Trial Examiner's Exh. 4 and my order of March 16, 1967. 28 At the hearing , ruling was reserved on the admission of his card It is hereby ordered received in evidence 29 As to the propriety of proving the authenticity of a union authoriza- tion card through comparison of the signature thereon with a specimen signature, see Arco Corporation, 149 NLRB 1283, 1285-86, and 28 USCA, Sec. 1731, which authorizes such comparison by Federal courts, without any limitation as to the conditions under which such comparison may be made For common law authorities to the same effect , see Wig- more, Evidence, § 2016 (fn 1) (3d ed ) 30 Wigmore, Evidence, §2520(b) (3d ed.). While such presumption is rebuttable, there is no contrary evidence here, and, indeed, the only other evidence on the point is the notation made by Darnell on the sheet, on which he recorded the results of his October 8 poll (Resp Exh. 1), indicat- ing that Morns aligned himself on that date with the union adherents Such evidence is not only consistent with, but tends to confirm, the presump- tion that Morris signed a union card on a date prior to October 8 HECK'S INC. had signed cards from 21 out of 38 employees in the unit, and that it represented a majority of such employees on that date. c. The Union's request Respondent contends that the Union did not make a proper request for bargaining. Union Agent Spencer testified that on October 8, he told Holroyd that the Union represented a majority of the "employees," whether or not department heads were included in the unit, and Spencer's letter of October 11 reaffirms the Union's claim to represent a majority of the "employees" in the Ashland store, regardless of the status of the de- partment heads;31 and he there prognosticates, on the basis of his experience with Respondent, that the issue of the appropriateness of the Ashland unit would probably reach the Board, but he asserts that, no matter how the Board should rule on the department heads, the Union would still have a majority. In his reply of October 13, Holroyd acknowledges that in their October 8 conversation, Spencer claimed to represent a majority of the "employees" in the store, and the letter continues: Pursuant to my questioning you stated that such majority existed with or without the department heads and you were making a demand to include the department heads or to exclude them depending upon what the Board decided in their case. This answer resulted in a very confused demand and we must therefore conclude that you did not demand recognition in an appropriate unit.32 In his reply of October 25, to the foregoing letter, Spencer made it clear that he was presently defining the unit as either a storewide unit including "non-supervisory department heads" or as one which excluded department heads. Spencer was thus, offering Respondent a clear, present choice between (1) a unit which included depart- ment heads, on the assumption that they were not super- visors, and (2) one which excluded them. Respondent contends that, because it was offered such a choice, Spencer's unit request was ambiguous. However, there was no ambiguity in Spencer's request in the sense that it was not clear what unit he was willing to bargain for. Each of the alternative units was precisely defined, and he made it abundantly clear that he was equally willing to bargain for either one. Essentially, the situation is the same as if Spencer had merely proposed the exclusion of supervisors, and indicated that he was willing to abide by Respondent's determination as to the supervisory status of the department heads. Moreover, even if the Union had erroneously insisted on including the six department heads, it appears that the Board would not have deemed its bargaining request de- 3' In this letter and his subsequent letter of October 25, Spencer speci- fies the exclusion of the office employees. While the one such employee here involved has been included by me in the unit, it is well settled that such a slight variance is immaterial. See Heck's, Inc., 156 NLRB 760. 32I do not credit the foregoing self-serving, hearsay version of Spencer's demand, insofar as it conflicts with his testimony. 33Heck's, Inc., 156 NLRB 760, involving the Parkersburg store There the Board found that a request for inclusion of as many as 5 em- ployees out of a unit of 37 was not defective, even though the 5 were found ineligible. Here, there were, as found above, 38 in the appropriate unit. 191 fective for that reason.33 It is not clear why the Union should be in a worse position, because it indicated indif- ference to the unit placement of the department heads. Respondent had no greater burden here than it had in the case just cited, involving its Parkersburg store. Here, as there, Respondent was required only to indicate in what respect it deemed the requested unit to deviate from the one it considered proper. Moreover, here unlike there, Respondent was assured that the Union would adapt its unit request to Respondent's views. Accordingly, I find no fatal defect in the Union's bar- gaining request of October 8 or any of its subsequent requests. d. The "good faith" issue Respondent offered no oral testimony at the hearing concerning the reason for its decision not to recognize the Union. Darnell averred only that the authority to make that decision was delegated to Respondent's labor rela- tions adviser, Holroyd, who was also its trial counsel, and, although the Union called upon Holroyd to take the stand, he refused to do So. 34 Accordingly, the only insight into Respondent's reason for refusing to recognize the Union is afforded by Holroyd's letter of October.13, which, after alleging that the Union's unit request was de- fective for the reasons noted above, continued as follows: Irrespective of this and in addition, we have caused a poll of all employees in that store to be conducted, the resulting answer produced an overwhelming statement that you did not represent the employees. Accordingly, recognition is declined until such time as you have been certified as the majority representa- tive of the employees involved by the N. L. R. B. It has already been found, on the basis of Darnell's un- contradicted testimony, that the result of this poll was in fact adverse to the Union. However, it has also been found that such poll did not conform to the requirements of the Blue Flash rule and was coercive. It is well settled that, in rejecting a union's recognition request, manage- ment may not, consistently with the requirements of good faith, rely on a count of union adherents obtained under coercive circumstances. 35 Such a poll has the twofold vice that it is patently not a reliable measure of employee sentiment, and that it is calculated to deter the employees from remaining union adherents in the future. Ac- cordingly, it is found that, by its resort to, as well as its reliance on, the foregoing poll, Respondent demonstrated its bad faith. I am mindful of the Board's finding in 159 N LRB 1151, involving Respondent's Huntington store, that in that case the polling of employees by management concerning their union sentiments, "while unlawful was not so 34 As the Union did not press the matter further, I had no occasion to rule on the propriety of such refusal . It is clear, however, that, if, as Dar- nell insisted, Holroyd was vested with sole responsibility for making such a decision regarding Respondent's labor relations policy as was here in- volved , he was subject to examination regarding his motivation to the same extent as any other representative of management, provided only that he could not be required to disclose any communications with his client that entered into the matter 35 Pre,ser Scientific, Inc, 158 NLRB 1375 and cases there cited Home Pride Provisions, Inc, 161 NLRB 634. 192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD flagrant that it must necessarily have had the object of destroying the Union's majority status ... nor was Respondent's conduct of such a character as to support an inference that Respondent's refusal to bargain was made in bad faith in violation of Section 8(a)(5) and (1) of the Act." However, here, unlike there, it was shown that Respondent was satisfied, even before taking the poll, that the Union had achieved majority status. Respondent, therefore, could have had no object in polling the em- ployees on October 8, other than to coerce them into repudiating the Union. Thus, there is present here an es- sential element found to be lacking in the Huntington case- namely, coercive conduct which "necessarily . . . had the object of destroying the Union's majority status." Moreover, even if this be viewed as a case where Respondent engaged in no unduly coercive conduct at the time of its refusal to honor the Union's request, it would still be found that such refusal was unlawful. Such a find- ing would be consistent with the Board's current policy as enunciated in John P. Serpa, Inc., 155 NLRB 99, Aaron Brothers Company, 158 NLRB 1077, and H & W Construction Co., 161 NLRB 852. The net effect of these cases appears to be that, where there is no prior bar- gaining relationship , an employer, who is confronted with a request for recognition based on cards, need only refrain from any unfair labor practices "of such a character as to reflect a purpose to evade an obligation to bargain," and that, if this condition is met, the Board will not infer that his failure to recognize the union was in bad faith- i.e., because of rejection of the principle of collec- tive bargaining. However, in the foregoing cases the Board imposed a limitation on the foregoing rule, which is especially significant here- namely, that, even if the foregoing requirement is met, an employer's refusal to recognize a union will still be found unlawful, if it affirma- tively appears that he in fact entertained no doubt of the Union's majority status.36 Presumably, the rationale of this is that an employer cannot have a good-faith doubt, if he had no doubt at all. Here, there was affirmative evidence indicating that Respondent was aware on October 6, only 2 days before the Union's initial demand, that it had achieved majority status on that date.37 No attempt was made to dispute this evidence '38 and on the basis thereof it has been found that on October 6 Respondent was in fact aware of the Union's majority status. Accordingly, on that ground alone, it would be consistent with current Board policy to find that Respondent's refusal to recognize the Union was unlawful. Respondent contends, finally, in its brief that it was justified in refusing to bargain because of a letter dated 36 See particularly the discussion of this point in Aaron Brothers, supra, and H & W Construction Co., supra See, also, Greyhound Terminal, 137 NLRB 87, enfd 314 F.2d 43 (C.A. 9), Snow & Sons, 134 NLRB 709, enfd 308 F 2d 687 (C.A 9). While the foregoing cases dealt with an inspection of cards tendered by a union, no logical reason suggests itself why a different result should apply where the employer has ascertained the union's majority status from other sources . See Member Jenkins' con- curring opinion in Aaron Brothers, wherein he states that an unlawful refusal to bargain may be proved , inter alia, "by independent knowledge of the employer that a union has a majority " 31 The last 2 of the Urron's 21 valid cards were in fact signed on Oc- October 1, received by Darnell, which read as follows: Mr. Fred Haddad, President Tri-State Distributors Inc. 19th Street Nitro, West Virginia Dear Mr. Haddad: This is to notify you that Retail Clerks Union Local 1059 has interest in your Hecks Inc. store located 3503 Winchester Avenue, Ashland, Kentucky, therefore, we hereby inform you that any agreements with any other Labor Organization would be in con- tradiction to the above stated interest and we will take all necessary legal action to protect such in- terest. Please contact the undersigned in the event you have any questions concerning this matter. Sincerely, William E. Harvey, President Retail Clerks Union Local 1059 187 South High Street Columbus, Ohio 43125 Admittedly, Respondent did not reply. The foregoing letter was not authenticated as having been in fact sent by Retail Clerks. Moreover, there was no testimony that such letter motivated Respondent's refusal to recognize the Union, and, significantly, Holroyd's letter of October 13, although purporting to detail the reasons for Respond- ent's refusal to recognize the Union, makes no mention of Retail Clerk's alleged "interest." In addition, although a number of employees had signed cards for Retail Clerks as late as March 1964,39 Menshouse testified, without contradiction, that no representative of the Retail Clerks had appeared at the Ashland store since the latter part of 1964, which was several months before the Union began its organizing campaign, and nearly a year before the Union's bargain- ing requests. While in the case last cited, Retail Clerks filed, inter alia, a refusal-to-bargain charge, that charge was either withdrawn or dismissed before the hearing held in that case on July 14, 1964; and, so far as appears from the record, the only basis for Retail Clerks' claim in the October 1 letter that it had an "interest" in the tober 6. Thus, Mitchell's aforenoted statement to Clare that Respondent knew that the Union had obtained the decisive card when she signed one (on October,6) was factually correct on the assumption that she was the first to sign on that date In any case, it suffices that Respondent knew by October 8 that the Union had a card majority 38 Respondent did not even call any representative of higher manage- ment to deny that Respondent had the knowledge of the Union's majority status imputed to it by Mitchell. This circumstance, in itself, warrants the inference that such imputation was correct 39 See the findings in Heck's, Inc., 150 NLRB 1565. HECK'S INC. 193 Ashland store were the cards dating back to March 1964, and the outstanding order of the Board issued in that case on February 5, 1965, requiring Respondent to refrain from discouraging, or interfering with, employee activi- ties on behalf of Retail Clerks.40 While the Board has held that, when he is confronted with competing claims by two rival unions, which give rise to a real question concerning representation, an em- ployer need not, and, indeed, may not, recognize either one,41 there was here no demand by Retail Clerks for recognition or any claim to represent the employees, but only a vague assertion of an "interest" in the employees, and a caveat against negotiating any contract with the Union, and Respondent admittedly made no effort to ob- tain clarification of the Retail Clerks' foregoing am- biguous position. In view of these circumstances, as well as the absence of any competent evidence that the forego- ing letter was actually sent by Retail Clerks, that Re- spondent's refusal to recognize the Union was prompted to any extent by that letter, or that Retail Clerks had any valid authorization cards on October 1, it is found that Respondent's reliance on that letter is misplaced.42 It is therefore concluded that, by refusing to recognize the Union on and after October 8, Respondent violated Section 8(a)(5) and (1) of the Act. IV. THE REMEDY It having been found that the Respondent violated Sec- tion 8(a)(1) and (5) of the Act, it will be recommended that the Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the poli- cies of the Act. It has been found that the Respondent refused to bar- gain in good faith with the Union, which represented a majority of the employees in an appropriate unit. Ac- cordingly, I shall recommend that the Respondent be or- dered to bargain, upon request, in good faith with the Union as the exclusive representative of the employees in the appropriate unit. CONCLUSIONS OF LAW 1. All employees in Respondent's Ashland, Kentucky, store, including office clerks, but excluding guards, professional employees, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of col- lective bargaining within the meaning of Section 9(b) of the Act. 2. At all times material the Union has been and still is the exclusive representative of all the employees in the aforesaid unit for the purposes of collective bargaining, within the meaning of Section 9(a) of the Act. 3. By refusing since October 8, to bargain collectively with the Union as the exclusive representative of its em- ployees in an appropriate unit, the Respondent has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 4. By interrogation of employees about their union ac- tivities, threatening reprisals for such activities, and creating the impression of surveillance thereof, Respond-, ent has interfered with, restrained, and coerced its em- ployees in the exercise of rights guaranteed in Section 7 of the Act, and has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. RECOMMENDED ORDER Upon the entire record in the case, and the foregoing findings of fact and conclusions of law, it is recommended that Respondent, Heck's, Inc., Ashland, Kentucky, its of- ficers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain concerning rates of pay, wages, hours of employment, or other conditions of employment with Food Store Employees Union, Local #347 Amalga- mated Meat Cutters and Butcher Workmen of North America, AFL-CIO, as the exclusive representative of all employees in its Ashland, Kentucky, store, including office clerks, but excluding professional employees, guards, and supervisors as defined in the Act. (b) Coercively interrogating employees about their union activities, threatening reprisals for such activities, and creating the impression of surveillance thereof. (c) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist the above-named Union, or any other labor organization and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the ex- tent that such right may be affected by the provisos to Section 8(a)(3) of the Act. 2. Take the following affirmative action, which is deemed necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively in good faith 41 That order was enforced by the court of appeals on November 29, 1966, 369 F.2d 370 (C A. 6). Respondent cites Blade-Tribune Publishing Company, 161 NLRB 1512, apparently as authority for the continuing vitality of the Retail Clerks' 18-month old cards However, that case is clearly distinguishable, as it holds merely that, when an organizing campaign is interrupted by the processing of unfair labor practice charges and thereafter resumed by the same union, culminating in a demand for recognition , a card signed before such interruption may be regarded as still valid, even though over a year old Here, there was no resumption of the organizing campaign by Retail Clerks at any time after its apparent suspension or abandonment late in 1964, nor any subsequent demand by that union for recognition This dif- ference in the factual setting of the two cases is of prime significance. For, in Blade-Tribune the employer was in essence attempting to avoid its bar- gaining obligation by relying on the disruption of a union's organizing cam- paign through its own unfair labor practices . Policy considerations were clearly opposed to the employer's position and required that the otherwise stale cards be validated, so that the employer might not profit by his own wrong. Here, on the other hand, Respondent would profit by its own wrong if it were allowed to rely on Retail Clerks' 18-month old cards as a reason for not bargaining with the Union , since the only basis for validat- ing such cards would be Respondent's own unfair labor practices in 1964. Whether the result here reached would be prejudicial to Retail Clerks is speculative, as there is no evidence that it intended to, or did , renew its campaign at any time There can be no doubt, however, of the prejudicial effect on the employees ' interest in self-organization, if Respondent's con- tention is sustained, as they will then be denied the right to representation by a union to which they adhered in the face of Respondent's unremedied unfair labor practices. The Boy's Market, Inc., 156 NLRB 105, 107 42 Boy's Market, Inc., supra The Board there held that the refusal to recognize a union is not excused by a rival union 's claim which is "clearly unsupportable or specious, or otherwise not a colorable claim " Here, not only was there no substantial basis for Retail Clerks ' claim, but the fact that Holroyd's letter of October 13 does not even advert thereto is per- suasive that Respondent recognized the speciousness of such claim. See also Essex Wire Corporation, 130 NLRB 450. 194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with Food Store Employees Union, Local #347 Amalga- mated Meat Cutters and Butcher Workmen of North America, AFL-CIO, as the exclusive representative of all employees of the Respondent, in its Ashland, Ken- tucky, store, including office clerks, but excluding guards, professional employees, and supervisors as defined in the Act, with respect to rates of pay, wages, hours of employ- ment, or other conditions of employment and, if an un- derstanding is reached, embody such understanding in a signed agreement. (b) Post at its store in Ashland, Kentucky, copies of the attached notice marked "Appendix."43 Copies of said notice, to be furnished by the Regional Director for Re- gion 9, after being duly signed by the Respondent's representative, shall be posted by the Respondent im- mediately 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 any other material. (c) Notify the Regional Director for Region 9, in writ ing, within 20 days from the receipt of this Decision, what steps Respondent has taken to comply herewith. 44 43 In the event that this Recommended Order is adopted by the Board, 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." 44 In the event that this Recommended Order is adoi ted by the Board, this provision shall be modified to read. "Notify the Regional Director for Region 9, in writing, within 10 days from the date of this Order , what steps Respondent has taken to comply herewith." WE WILL bargain in good faith , upon request, with Food Store Employees Union , Local #347 Amalga- mated Meat Cutters and Butcher Workmen of North America, AFL-CIO, as the exclusive representative of all employees in the bargaining unit described below in respect to rates of pay, wages , hours of em- ployment, or other conditions of employment and, if an understanding is reached , embody it in a signed agreement. The bargaining unit is: All employees at our Ashland, Kentucky , store, including office clerks , but excluding guards, professional employees , and supervisors as defined in the Act. WE WILL NOT coercively interrogate our em- ployees about their union activities, threaten reprisals for such activities, or create the impression of surveillance thereof. WE WILL NOT in any like or related manner inter- fere with, restrain, or coerce our employees in the ex- ercise of their right to self-organization, to form, join, or assist Food Store Employees Union, Local #347 Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, or any other labor or- ganization, to bargain collectively through represen- tatives of their own choosing and to engage in other concerted activities for the purpose of collective bar- gaining or other mutual aid or protection or to refrain from any or all such activities, except to the extent that such right may be affected by the provisos to Section 8(a)(3) of the Act. HECK'S INC. Employer APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Ex- aminer 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 em- ployees that: 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 2407, Federal Office Building, 550 Main Street, Cincinnati, Ohio 45202, Telephone 684-3663.