Heck'S, Inc

202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Heck's, Inc. and Teamsters, Chauffeurs & Helpers Local Union No. 175, affiliated with the Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and Food Store Employees Union, Local 347, United Food and Commercial Workers Interna- tional Union, AFL-CIO-CLC. Cases 9-CA- 20275, 9-CA-20375, and 9-CA-20437 - 12 December 1984 DECISION AND ORDER BY MEMBERS ZIMMERMAN, HUNTER, AND DENNIS On- 21 May 1984 Administrative Law Judge Marion C. Ladwig issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in sup- port of the judge's decision. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Heck's, Inc., Nitro and Cross Lanes, West Virginia, its officers, agents, successors, and assigns, shall take the action set forth in the Order. The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings DECISION MARION C. LADwiG, Administrative Law Judge. These cases were tried at Charleston, West Virginia, February 14, 1984. 1 The Teamsters Local 175 charge was filed October 21 and the UFCW Local 347 charges were filed November 21 and December 7, complaints were issued December 5 and January 5, orders consoli- dating the cases were issued January 11 and 17, and con- solidated amended complaints were issued January 17 and 19. The Teamsters and UFCW were engaged in organiz- ing campaigns among warehousemen and secretaries at All dates are from September 1983 until April 1984 unless otherwise stated the Company's warehouse and offices at Nitro, and the UFCW among store employees at Cross Lanes, West Virginia The primary issues are. whether the Company, the Respondent, (a) coercively interrogated an employee and discharged her because of her union activity,. (b) maintained an invalid no-distribution rule, (c) engaged in unlawful surveillance, (d) coerced employees by stating in a letter that "Heck's has an absolute right to see the union dards" they sign, and (e) engaged in other coercive conduct, in 'violation of Section 8(a)(1) and (3) of the Na- tional Labor Relations Act: On the entire record, including my observation of the demeanor of life witnesses, and after consideration of the briefs filed by the General Counsel, 'the Company, 'and the Teamsters make the following FINDINGS OF FACT - I. JURISDICTION ' , The Company, a West Virginia corporation, operates retail stores . at various , locations including Cross Lanes, West Virginia, annually deriving over $500,000 in gross revenue and receiving at its Nitro, West Virginia ware- house goods valued over $50,000 directly from outside the State. The Company admits and I find that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that Teamsters Local 175 and UFCW Local 347 are labor organizations within the meaning of Section 2(5) of the Act. -Ii. ALLEGED UNFAIR LABOR PRACTICES A. Interrogation and Discharge of UFCW Member 1. Her reemployment Since April 1982, Roxanne Jividen has been a UFCW member with a regular part-time job at Kroger's Cross Lanes store. She works 15 to 20 hours a week, usually in the early morning from 5 to 10 a.m. or 4 to 9 a.m. (Tr. 48.) She had previously worked twice as a cashier at the Company's nonunion Cross Lanes store (about a mile from the Kroger store), for 7 months in 1981 and during the 1982 Christmas season. Store Manager David Romeo, who hired her each of those times, was aware that she was working at the unionized Kroger store be- cause he recommended her for the job (Tr. 9). On September 1, Manager Romeo again hired her to work as a cashier during the 1983 Christmas season, after having seen her at the store and asked if she was interest- ed in coming to work (Tr. 38). He admittedly hired her "out of her working ability" (Tr. 22). He asked her if she wanted to work mornings or evenings. She requested straight evenings, but told him that her schedule at Kroger's could be worked around any given week, and he said "Fine." (Tr. 39.) (Jividen's Kroger supervisor had assured her that any rescheduling that was needed for her second job could be done.) Romeo admitted at the trial that he - told her she was being hired primarily for the night shift and that she "probably did" tell him 273 NLRB No. 34 - HECK'S, INC 203 "that if scheduling problems* arose, she had some flexibil- ity at Kroger" (Tr. 16). From September 1 to October 27, when Manager Romeo summarily discharged Jividen purportedly for "scheduling reasons," he ;admittedly had no discussions with her about any possible scheduling conflicts_ between her two part-time jobs (Tr. 13-14) The only conflict that had arisen was on one of the first three Sundays in ,Sep-,, tember (Tr. 12), when Kroger assigned her to work until 1 p m., the same time the company had scheduled her to begin working that day There was no need for her to ask her Kroger supervisor for permission to leave work a few minutes early because the day before she asked As- sistant Manager Asaad.Karam if she could be 1.5.mimites late and she said, "Sure, no problem.' ,(Tr 41,50-51.) She clocked in at 1i15 pm, as rescheduled. She never made any other requests to have her ,schedule ,changed (Tr. 47). Except for one time when she came in 30 min- utes early at his request, Romeo never told ' her he wanted to schedule her for longer or different hours (Tr. 27, 47) She was working about 28 hours a • week (Tr. 52). The interrogation • Although Manager Romeo was aware that Jividen was a member of UFCW, when .he , rehired her September 1 (Tr 16), he admittedly was not, aware of any UFCW or- ganizing at the store at the time (Tr 28). - On September 20, the day after UFCW began hand- billing at the store, Assistant Manager . Karam held meet- ings to explain the Comp. any's opposition to a union. In the meeting that Jividen attended (as she credibly testi: fied), Karam stated that there had never been and never wOuld be a union at that store (Tr. 42). It is undisputed, however, that Karam also stated in the meeting'that the Company "will use legal ways not to unionize the store" (Tr. 74). At this September 20 meeting (about 5 weeks before Jividen's sudden discharge without any warning), Assist- ant Manager Karam singled her out, requiring her to take. a stand on UFCW, which he was vigorously oppos- ing in the meeting. As credibly testified by Jividen (who impressed me as an honest, forthright witness by her de- meanor on the stand), "Mr.- Karam asked me, 'Roxanne, what do you think of Kroger's union?' And I said, 'I'm very satisfied with it" (Tr. 43). As -credibly recalled by sporting goods clerk Richard Corey (who attended the same meeting),.-Jividen also added that "She thought the benefits were- good" (Tr. 30). I discredit Karam's denial that he asked Jividen how she liked Kroger's union (Tr. 76) (He appeared on the stand to be less than candid.) Assistant- Manager Karam was clearly acting. as the Company's spokesman when calling the meeting of em- ployees and explaining the Company's strong opposition to a union at the store. By asking Jividen what she thought of Kroger's union, (her own union, which repre- sented her at the neighboring Kroger store); he was ob- viously seeking information on which the Company could take action against her He expressed no legitimate purpose for asking the question and expressed no assur- ancesqo her against reprisal. He was forcing her, in front of the other assembled employees, to either join him in opposing UFCW to retain the Company's goodwill, , or risk taking ,a stand against the Company's position. She took the risk and answered truthfully that she was pleased with UFCW and the union benefits. About 5 weeks later, she was summarily discharged. Although Karam's statement in the meeting about the Company using "legal ways" to keep out a union may have tended to lessen the impact of his warning that there would never be a union in that stOre, I find that it would not overcome the tendency of his interrogation of Jividen to instill fear of reprisal, discouraging support of UFCW's organizing drive at the store Under all the cir- cumstances, including her summary discharge, I find that the interrogation reasonably tended to coerce the em- ployees in the exercise of their Section 7 rights. - 3. Her discharge On October 20, Store Manger Romeo called another employee meeting and told the employees not to be misled by grocery store employees—that a grocery store employee might be making $8 an hour, but "we are a completely different business" (Tr. 16-17). He testified that he was not referring to any one individual, although he acknowledged that Jividen was the only store em- ployee who also worked at an organized grocery store and that he decided to discharge her "right after that." About 9:25 p.m., October 27, Romeo called employee Corey to relieve Jividen at the cashier's box and service desk, invited her to his -office, took out some graphs, and commented that "Heck's is changing" and , that "it costs so much to . . train an employee" (Tr. 44). As Jividen credibly testified, • A. . . . the graph showed how much , it Would cost to train an employee. And he said, "Due to this and your inflexibility in working hours, I'm going to have to terminate you." Q. Did you say anything" A I was flabbergasted. I . . . said, `!Mr. Romeo, I know this doesn't have to do with , the inflexibility of my working hours It has to do ,with the union." , Q. And what did he say? A. He didn't say yes or no He just said, "I'm sorry, this is the reason for your termination" (Tr. 45) Employee Corey overheard Jividen asking if it was because she was in the union, but could not hear Romeo's response (Tr. 31). Romeo claimed that he told her that was not the reason (Tr. 23) About 2 days later, on Saturday, October 29, employ- ee Corey talked to Department Head Colleen Fisher about Jividen's discharge (Tr 32, 35). (Although Fisher was the immediate supervisor over the service desk where Jividen worked, Fisher admittedly was not aware at the time that the store manager was discharging Jivi- den (Tr 70-71).) Corey had heard in the store that Jivi- den was fired because of inflexibility in scheduling and told Fisher he thought this was the reason. As Corey (a credible witness) testified, Fisher said, "No, that she was running her mouth about the union" (I discredit Fisher's denial that she made this statement.) 204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The supervisor's statement that Jividen was not dis- charged because of inflexibility in her working hours but because she engaged in union activity was 'clearly coer- cive. I therefore find that the statement violated Section 8(a)(1).' 4. The Company's defenses Store Manager Romeo testified that Jividen "was ter- minated on scheduling reasons" (Tr. 12). He explained that under new programs that went into effect since Chairman Isaacs became the chief executive officer early in 1983, the goal was to work with few employees and "save on training costs," and "it was of upmost impor- tance that we had flexibility" in scheduling the employ- ees' (Tr. 11, 19-20). The number of employees hired for the 1983 Christmas season was "somewhere around" 38 or 39, as compared to "Last year [when] I think we had as many as 45" (Tr. 21) He testified that Jividen had come in 15 minutes late on a Sunday (sometime before September 25), that "She mentioned that she had commitments at Kroger's," and that this "started the mind thinking" (Tr 12). "I started thinking then that . . . later on down the road as we got into the Christmas season, our store would probably change—and they did change, November 6 [10 days after her discharge] we started opening at 12 noon on Sunday" (working from 12 to 6 p.m. instead of 1 to 7 p.m.) (Tr 12). He further claimed that "It seemed to me that Kroger's was going to be her primary source of work," and "I felt that Kroger's was her main job and that she would as far as flexibility goes with my work schedule, that she would be following Kroger's schedule rather than Heck's" (Tr 14). When asked by company counsel if Jividen •did "give Heck's priority over her other job," Romeo answered (Tr. 22) A. I would say no Q. All right, can you be specific on that? A. The only way that I could be specific was . . the day that she said she would be late due to Kroger. That would basically be it. (He did not impress me as being a candid witness.) In its brief, the Company contends that ."Mr. Romeo testified that he had difficulty scheduling her around her schedule at Kroger [evidently referring to the one Sunday in September]. Ms. Jividen herself admitted that Kroger was her primary employer [referring to her year- round employment, working part time 15 or 20 hours a week]. Thus, one must conclude that when a scheduling conflict occurred it would be resolved in favor of Kroger." The Company also argues that she "had a per- manent employment with Kroger some five minutes away," that this "was her primary employer," and that "one would presume" that her secondary employment at Heck's "would have to take a back seat to her employ- ment at Kroger. When it appeared obvious to the manag- er, David Romeo, that Ms. Jividen's schedule at Kroger was such that she would not be able to fit in with the flexibility required of Christmas help with Heck's—she was terminated." I find that these are frivoulous defenses. There was no conflict between her usual early morning schedule at Kroger and her night schedule at Heck's Her supervisor at Kroger had assured her that any rescheduling that was needed for her second job at Heck's could be done, and it is undisputed that she told Romeo when he hired her that her schedule at 'Kroger's could be worked around any given week. (Romeo' admitted that she probably did tell him that if scheduling problems arose, she had some - flexibility at Kroger.) The only conflict that ever arose Was shortly after she was hired, when she was scheduled to work on both jobs on a Sunday, getting off at 1 p.m. at Kroger and starting at 1 p.m. at Heck's. Assistant Manager Karam rescheduled her to start at 1:15, telling her "no problem" She readily agreed the one time Romeo asked her to come in 30 minutes early. Store Manager Romeo admitted that he never had any coinplamis from other employees about Jividen's work schedule (Tr. 16), and that he never discussed possible scheduling conflicts with her before he decided to termi- nate her (Tr. 13-14). Although he testified that he had anticipated a scheduling change during the Christmas season, and one did occur (10 days after he discharge Ji- viden), that involved only a change in the Sunday work- ing. hours from 1-7 to 12-6. Her flexible Kroger schedule could have accommodated that change, even if she were scheduled to work another Sunday on both jobs. He had sought her out to see if she would work again for him, and he had, hired her because of her working ability. Undoubtedly if any difficulty in scheduling her had .arisen or was anticipated, he would have discussed the problem with her. There was obviously no scheduling problem The only other reason he mentioned for the discharge, the cost of training an employee, was clearly not applicable to her; she was fully trained, having worked on the job twice before. 5. Finding of discrimination Store Manager Romeo was not concerned about Jivi- den's membership in UFCW until that union began orga- nizing at his store. The next day after the handbilling began, Romeo's assistant manager unlawfully interrogat- ed her in an employee meeting about what she thought abotit her union at Kroger. Despite the Company's vig- orous opposition to the store being unionized, Jividen an- swered that she was very satisfied with the Kroger union and that she thought the benfits were good. A month later, Romeo called another meeting and told the em- ployees not to be misled by grocery store employees about possible union wages at the store (Jividen was the only employee who also worked at an organized grocery store.) Seven days later, Romeo suddenly discharged her near quitting time, without any prior discussion or warn- ing. He claimed the reasons were high training costs and her "inflexibility in working hours," although she was al- ready trained, and her working hours were flexible by prior arrangement at Kroger. Two days later, a 'supervi- sor advised another employee that Jividen was not dis- charged because of inflexibility in working hours, but be- cause "she was running her mouth about the union." HECK'S, INC 205 I find that the General Counsel has made a prima facie showing that Jividen's union activity was a motivating factor in the Company's decision to discharge her. Having found the Company's defenses to be frivolous, I find that the purported reasons were a mere pretext and that the Company discriminatorily discharged her be- cause of her union activity, in violation of Section 8(a)(3) and (1). B. Overly Broad No-Distribution Rule The Company's. "Heck's and You" employee manual, which was last revised in September 1980, was issued to all employees at the Nitro warehouse and in all its stores (G.C. Exh. 3; Tr. 63). Under "Rules and Discipline Pro- cedure" (at 21-23), the manual provides that "Employees will be subject to disciplinary action for any of the fol- lowing [42] offenses." Rule 13 prescribes a written warn- ing, 1 week off, and discharge for the first, second, and third offenses and forbids (at 21) 13. Distributing written or printed matter of any description on company _premises unless approved by Management. At the Cross Lanes store, Assistant Manager Karam read this rule in the employee meetings he held September 20, the day after union handbilling began , The General Counsel contends that this rule is overly broad and illegal on its face The Company contends that there is no indication that the rule related to the union movement at all and, ignoring Karam's admission that he read the rule to employees after the union organizing began, argues that "clear testimony of [Store Manager] Romeo establishes that this Rule was not enforced in any way." The Company also contend that unless the rule is issued to limit or disrupt Section 7 rights, the rule should not be declared invalid. I agree with the General Counsel In one of the cases he cites, Olympic Villas, 241 NLRB 358, 363 (1979), the employee manual prescribed a penalty "up to and includ- ing discharge" for "distribution of literature of any kind" anywhere on the premises "without the general manag- er's approval." There, the employer "made no effort whatsoever to inform its employees either before or during the union campaign that the rule, was not in effect," the rule remained to be invoked anytime the em- ployer chose to do so, "By the mere existence of the rule the employees remained under a continuous threat" that the employer would invoke the rule, and "Thus, the rule constitutes interference with thern organizational rights of employees that Section 8(a)(1) of the Act condemns." Similarly here, I find that by maintaining the overly broad no-distribution rule, prohibiting the distribution of any written matter on company premises unless ap- proved by management, the Company coerced employ- ees in the exercise of their Section 7 rights in violation of Section 8(a)(1) C. Alleged Surveillance About 4:55 p.m., October 21, several UFCW repre- sentatives went to the company offices at the warehouse to handbill the secretaries A member of management came out and requested them, not to block traffic. A few minutes later, Business Representatives -Claude Roster and Sterling Ball went about a quarter mile away, to the entrance of the complex, and began handbilling at the intersection. On -instructions from Company President Ray Darnell, who was in the parking lot, Personnel Di- rector Henry Babcock drove Darnell's car (a sable-col- ored Cadillac) to the intersection to determine the reason for the traffic jam. After observing the efforts to handbill employees as they were léaving, Babcock drove into the intersection; turned around and waited 3 or 4 minutes to get back into the traffic, and returned to the 'parking lot When Bobcock reported to President Darnell that there was no accident, that handbilling was slowing down the traffic, Darnell asked him to go back and re- quest the union representatives not td block the traffic so badly. The second time, however, Babcock found that the traffic was moving faster and did not relay the re- quest. He again turned around, waited a short time for the traffic to let him through, and returned to the park- ing lot. (Tr. 64-67.) The General Counsel contends that , "Babcock's only purpose in driving out onto the road in Respondent's president's automobile was not only to observe the hand- billing but to signal employees by the use of a conspicu- ous automobile owned by Respondent's president, that he was there to observe their activity." To the contrary, however, I _credit Babcock's testimony that he went there the first time to determine the reason for the traffic jam, and the second time to ask the organizers not to ob- struct traffic so much. I therefore agree with the Company that it was not en- gaged in surveillance of its employees' union activities, and find that this allegation must be dismissed. D. Coercive Letter to Employees 1. Contested language and contentions of parties About October 10, the Company distributed a letter (G.C. Exhs. 2A and 2B) to employees at the Cross Lanes store and the warehouse The one-page letter (written in all capitals) was signed by Company Chairman Russell Isaacs. The letter opposed the signing of union cards, stating toward the end "We feel that a union would. be of no advantage to any of us. and it would hurt the busi- ness that we all-depend on for our livelihood," and "if anyone should come to you and ask you to sign a union authorization card, we are asking you to refuse to sign it." The middle paragraph of the letter (the capitalization retained in only the last sentence for emphasis) read These cards are often obtained by unions by making false statements or misrepresentations These cards could be used as evidence with the National Labor Relations Board to get into a company without an election. The Union is telling you that Heck's will never see the union cards you sign. This is just not true In past cases with this Union we have seen these cards which were shown to us by the NLRB where the Union claims bargaining rights -without 206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ' an election. HECK'S HAS AN ABSOLUTE RIGHT TO SEE 'THE UNION CARDS. - In his brief, the General Counsel "submits that not only is this statement inaccurate-but it also is incomplete and a misstatement of applicable Board law." The Team- sters' brief argues that "The statement, 'HECK'S HAS AN ,_ ABSOLUTE RIGHT TO SEE THE UNION CARDS,' is manifestly false and is presented to its em- ployees . to make them believe that the identity of union supporters and members would be made known to Mr. Isaacs, and appropriate reprisals would be taken." The Company argues in its brief that .when the sen- tence, "Heck's has an absolute right to see the union cards," is "read- in the context of the entire paragraph, it is obvious that what Mr. Isaacs is saying in that particu- lar sentence is that where the union is demanding bar- gaining rights without an election, Heck's has the right to see the cards." I disagree. That is a paraphrase of two preceding sentences, "These cards could be used as evi- dence with the National Labor Relations Board to get into a company without an election" and "In, past cases with this Union we have seen these cards which were shown to us by the NLRB where the union claims, bär- gaining rights without an election." It is clearly not the meaning of the last, unequivocal statement, that Heck's "has" the "absolute" right to' see the union cards. Even if employees could be expected' to ignore the clear, plain message in the unqualified statement, "Heck's has an absolute right to see the union cards," and to ana- lyze the whole paragiaph to derive some limited mean- ing, this added sentence would still ,place the confiden- tiality of their cardsigning in jeopardy. Thus the compa- ny chairman asserts that "The Union is telling you that Heck's will never see the union cards you sign," and makes three responses. The first is "This is just not true." The second is that "In past cases with this Union we have seen these cards which were shown to us by the NLRB where the Union claims bargaining rights without an election." Those are complete responses to the pur- ported union contention -that the Company "will never see the union cards you sign" But then' the chairman adds a third response—without making any reference to the right the Company "had" in past cases to see the cards, or to the right it "would have" if the Union claimed bargaining rights without an election Claiming a present, unquälified right to see the cards, he adds that "Heck's has an absolute right to see the union cards" (emphasis added). 2. Concluding findings It is well recognized that-employees would be coerced or "chilled" in the exercise of their Section 7 right to sign union authorization cards if they knew that the em- ployer lia'd the absolute right to see the cards. - In denying an employer access • to union authorization cards under the Freedom of Information Act, 5 U.S.0 § 552, the court held in Committee on Masonic Homes, 556 F.2d 214, 221 (3d Cir. 1977) (footnotes omitted) • [lit is entirely plausible that employees would be ' "chilled" when asked to sign a union card if they knew the employer could see who signed. . . . To order disclosure here would effectively do away with union cards as they are used now. We need only consider whether employees would be likely to -.sign a prominently displayed notice at work, "Sign up for the union here. , Organize -for better working conditions and higher wages:: Solicitation of authorization cards plays a vital role in organiza- tional campaigns, and we cannot envision a work- able substitute. Furthermore, union elections must be conducted by secret ballot. Whatever reasons and policies he behind that would be directly undercut by forcing employees to acknowledge in public their support of the union, in order td be given the right to vote in secret for the union. After quoting this language in Pacific Molasses Co., 577 F.2d 1172, 1182 (5th Cir. 1978), the court observed We agree with the Third Circuit, and feel that the Freedom of Information Act does not compel disclosure of these cards . . . We would be naive to disregard the abuse which could potentially occur if employers and other employees Were armed with this information. The inevitable result of the- availability of this information would be to chill the right of employees to express their favor- able union sentiments Such a chilling effect would undermine the rights guaranteed by the NLRA and, for all intents and purposes, would make meaning- less those provisions . . . which guarantee secrecy in union elections. In Madeira Nursing Center, 615 F.2,d 728, 730-731 (6th Cir. 1980), the court cited Masonic Homes and Pacific Molasses and found Both the 3rd and 5th Circuits have held that union authorization . cards are not discoverable under the Act . When an employee signs an authorization card during the initial phase of union organization, he ex- presses a personal decision to seek the support of a union in future dealings with his employer. Since the union organization of a company -may take the form of a protracted and bitter struggle over em- ployee loyalties, an employee may be amply justi- fied in wishing to protect his prounion declaration fforn employer scrutiny. . . . Appellant insists that an employee can have no expectation of confidentiality when he signs a card. This contention is apparently based on the fact that a union which holds authorizations from the majori- ty of a bargaining unit may bypass the election process by submitting its authorization cards direct- ly to the employer Appellant's argument ignores an important distinction. An eniployee may reasonably feel less vulnerable after he knows his union is likely to'-prevail than at the outset of an organiza- tion campaign when the ultimate result remains un- HECK'S, INC 207 certain Indeed, it is in such a case as this one, where the defeated Union may be unable to give •`• the' support anticipated by its adherents, that em- ployees who sign authorization cards could be most ' justified in seeking to preserve their anonymity. Several cases involve alleged coercion when an em- ployer refers to this anonymity of cardsigning being lost when a union seeks recognition without an election. In NLRB v. Finesilver Mfg. Co., 400 F.2d 644, 645-646 (5th Cir. 1968), the employer posted a notice, stating that "The union sayS the signing of cards will be confiden- tial," but the truth is that "Any employee who signs a card for a union May be called upon to testify in open court under a subpoena," and commenting that "The best way to avoid this is to stay away from the union meetings, and then you can't be forced to sign cards." The court observed that "we see no reason for informing employees that they might be required to testify in open court other than to let them know that the names of union adherents could be ascertained and appropriate re- prisals, taken.7 It held that whether or not this and an- other statement were -legally correct, they "have unlaw- fully coercive implications, especially when considered in the context of the company's widespread patter of an- tiunion conduct." In Lundy Packing Co., 223 NLRB 139 (1976), enf. denied in relevant part 549 F.2d 300, 301 (4th Cir 1977), -the Board found "there was no reason for informing em- ployees that they might be required to testify in open court other than to let them know that the names of union adherents could be ascertained and appropriate re- prisals taken" Similarly, except this time with court ap- proval, the Board in Arrow Automotive Industries, 256 NLRB.1027, 1033-1034 (1981); enfd mem 679 F 2d 875 (4th Cir. 1982), adopted the administrative law judge's finding that "Absent . . . any valid reason for repeatedly informing , employees , that those employees who sign union cards could be required to appear in court to testi- fy about them and occurring in the context of other unfair labor practices," the vice president's statements in letters to employees, in the employer's newspaper, and in a speech "were to discourage employees from signing union authorization cards," violating Section 8(a)(I). In Huntington Rubber Co., 260 NLRB 1008 (1982), the employer's vice president told employees in a meeting that "if the Union obtained signed cards from over 50 percent of the employees, the Union would take the cards out in [his] office and lay them on his desk." The Board adopted the judge's finding that the statement, in the context of several other unfair labor practices, "con- veyed a threat to the employees that the identities of those who signed union cards would be revealed" to the employer, "followed by appropriate reprisals." All four of these decisions involved the loss of confi- dentiality if the union uses the cards to seek bargaining rights without an election In Finesilver, Lundy, 'and Arrow, the employer's statements about cardsigners having to appear in court. were held to be coercive, and in Huntington, the statement about the union's laying the cards on the employees desk after obtaining a 50-percent majority was found to be.- • Here, in contrast, the statement that "Heck's has an absolute right to see the union cards" is an uneqivocal warning to the employees that they cannot sign union authorization cards in confidence, even if the cards are used merely to show sufficient support for a secret Board election. The General Counsel does not allege to be coercive the two statements in the October 10 letter about cards being used "to get into a company without an election" and about the Company seeing the union cards "where the Union claims bargaining rights without an election" I find that,this added, last Sentence in the quoted para- graph, that the Company "has an absolute right" to see the cards, was intended to discourage employees from signing the union authorization cards by instilling fear of reprisals. I therefore find that the statement 'tends to coerce the employees in the exercise of their Section 7 rights, in violation of Section 8(a)(1) of the Act. CONCLUSIONS OF LAW 1 By discriminatorily discharging Roxanne Jividen October 27, 1983, because of her union activity, the Company engaged in unfair , labor practices affecting commerce within the meaning of Section 8(a)(3) and (1) and Section 2(6) and (7) of the Act. 2. By coercively interrogating an employee, the Com- pany violated, Section 8(a)(1).. 3 By telling an employee that the Company had dis- charged an employee for engaging in union activity, a company supervisor violated Section 8(a)(1). 4. By maintaining' in its employee manual an overly broad no-distribution rule, prohibiting the distribution of any written matter on company premises unless ap- proved by management, the Company violated Section 8(a)(1). 5 By informing employees that "Heck's has an abso- lute right to see the union cards" to discourage them from signing union authorization cards by instilling fear of reprisals, the Company 'violated Section 8(a)(1). 6. The Company did not engage in surveillance of its employees' union activities. REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, I find it necessary to order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act The Respondent having discriminatorily discharged an employee hired for the 1983 Christmas season, it must make her whole for any loss of earnings and other bene- fits, computed on a quaterly basis from the date of her discharge to the date her seasonal employment would otherwise have ended, less any net interim earnings, as prescribed in E W. Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in Florida Steel Corp., 231 NLRB 651 (1977). 208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed 2 ORDER . The Respondent, Heck's, Inc., Nitro and Cross Lanes, West Virginia, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Discharging or otherwise discriminating against any employee for supporting Food Store Employees Union, Local 347, United Food and Commercial Work- ers International Union, AFL-CIO-CLC, or any, other union. (b) Coercively interrogating any employee about union sympathies. (c) Telling any employee that it has discharged an em- ployee for engaging in union activity (d) Maintaining a rule prohibiting employees from dis- tributing any written matter on company premises unless approved by management. (e)' Discouraging employees from signing union au- thorization cards by informing them that "Heck's has an absolute right to see the Union cards." (f) in any like of related mariner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Make Roxanne Jividen whole for any loss of earn- ings and other benefits suffered as a result -of .the discrim- ination against her, in the manner set forth in the remedy section of the decision. •, (b) Remove from its files any reference to the unlawful discharge and notify the employee in writing that this has been done and that the discharge will not be used against her in any way. (c) Presence and, on request, make available to the Board or its -agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other reeords nec'- essary to analyze the amount of backpay due under the terms of this Order. (d) Post at its warehouse at Nitro, West Virginia, copies of the attached notice marked "Appendix A," and at its store at Cross Lanes, West Virginia; copies of the notice marked "Appendix B." 3 Copies of notices, on forms provided by the Regional Director for Region 9, after being signed by the Respondent's authorized repre- sentative, shall be posted by the Respondent immediately upon receipt and maintained. for 60 consecutive . days in conspicuous places including all places where notices to " 2 If no exceptions are filed as provided by Sec 102 46 of the-Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses 3 If this Order is enforced by a Judgment of a United States Coul:t Appeals, the words in the notice reading "Posted by Order of the Na- tional Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board" employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered' by any other materi- al. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. IT IS FURTHER ORDERED that the complaints are dis- missed insofar as they allege violations of the Act not specifically found. APPENDIX A NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has, or- dered us to post and abide by this notice. WE WILL NOT maintain a rule prohibiting you from distributing any written matter on company premises unless approved by management. WE WILL NOT discourage you from signing union au- thorization cards by claiming that "Heck's has an abso- lute right to see the union cards" WE WILL NOT in any like or related manner interfere with; restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. HECK'S INC. APPENDIX B NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated "the National Labor Relations Act and has or- dered us to post and abide by this notice WE WILL NOT discharge or otherwise discriminate against any of you for supporting Food Store Employees Union, Local 347, United Food and Commercial Work- ers International Union, AFL-CIO-CLC, or any other union. WE WILL NOT coercively question you about your union sympathies. . WE WILL NOT tell you that we have discharged an employee for engaging in union activity WE WILL NOT maintain a rule .prohibiting you from distributing any written matter on company premises unless approved by management. WE WILL NOT discourage you from signing union au- thorization cards by claiming that "Heck's has an abso- lute right to see the union , cards" WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. HECK'S, INC 209 WE WILL make Roxanne Jividen whole for any loss of WE WILL notify her that we have removed from our earnings and other benefits resulting from her discharge, files any reference to -her discharge and that the dis- less any net interim earnings, plus interest, charge will not be used against her in any way HECK'S 'INC.