Heck'S Inc.

916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Heck's Inc. and Dorothy B. Stulberg, Esq. Case 10- CA-20230 29 November 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND BABSON On 28 June 1985 Administrative Law Judge Philip P. McLeod issued the attached decision. The General Counsel and the Respondent filed excep- tions and supporting briefs. 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 as modified and to adopt the recom- mended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Heck's Inc., Oak Ridge, Tennessee, its officers, agents, succes- sors, and assigns, shall take the action set forth in the Order. i The judge erroneously found that Supervisor Blalock did not cor- roborate employee Jackson's testimony that department managers were instructed to repeat threatening statements to employees, and concluded that such lack of corroboration tended to weaken the General Counsel's case with respect to the Respondent's motive for discharging Blalock. We nevertheless conclude that there is insufficient evidence to establish that Blalock was discharged for refusing to commit unfair labor practices. Parker-Robb Chevrolet, 262 NLRB 402 (1982). Ann Leslie Unger, Esq., for the General Counsel. Dorothy B. Stulberg, Esq., of Oak Ridge, Tennessee, ap- pearing on behalf of Vonnie Blalock and Kathleen Jackson. Fred F. Holroyd, Esq., of Charleston, West Virginia, for the Respondent. DECISION STATEMENT OF THE CASE PHILIP P. MCLEOD, Administrative Law Judge. This case was tried before me on March 20, 1985, in Oak Ridge, Tennessee. It originated from a charge filed on May 25, 1984, by Dorothy B. Stulberg, Esq. on behalf of Vonnie Blalock and Kathleen Jackson against Heck's Inc. (Respondent). On January 30, 1985, a complaint and notice of hear- ing issued alleging, inter alia, that Respondent interrogat- ed employees concerning their union activities; threat- ened employees that it would close its Oak Ridge, Ten- nessee store if employees engaged in activities on behalf of Retail Clerks Union, Local 1557, United Food and Commercial Workers International Union, AFL-CIO- CLC; threatened employees with discharge for support- ing the Union; threatened employees that it would be futile to select the Union as their collective-bargaining representative because Respondent would never sign a collective-bargaining agreement with the Union; and so- licited employees to solicit other employees to withdraw their support from the Union. The complaint further al- leges that Respondent violated Section 8(a)(1) and (3) of the Act by discharging employees Vonnie Blalock and Kathleen Jackson because of their support for the Union. The complaint alleges in the alternative that if Jackson and Blalock are supervisors within the meaning of the Act, Respondent unlawfully discharged them because they refused to commit unfair labor practices as directed by Respondent. The complaint also contains the alterna- tive allegation that in the event Blalock and Jackson are supervisors, Respondent engaged in various unfair labor practices by Jackson and Blalock making certain state- ments to bargaining unit employees. In its answer to the complaint, Respondent admitted certain allegations, including the filing and serving of the charge, its status as an employer within the meaning of the Act, the status of the Union as a labor organization within the meaning of the Act, and the status of various individuals as supervisors and agents of the employer within the meaning of Section 2(11) of the Act. Re- spondent denied having engaged in any conduct which would constitute an unfair labor practice. At the trial, all parties were represented and afforded full opportunity to be heard, to examine and cross-exam- ine witnesses, and to introduce evidence." Following the close of the trial, counsel for General Counsel and Re- spondent filed timely briefs with me, which have been considered. On the entire record in this case and from my observa- tion of the witnesses, I make the following FINDINGS OF FACT 1. JURISDICTION Heck's Inc. is a West Virginia corporation engaged in the retail sale of general merchandise. Two of its stores are located in Oak Ridge and Oliver Springs, Tennessee. During the past 12 months, which period is representa- tive of all times material herein, Respondent received gross revenues in excess of $500,000 and, during the same period, purchased and received at these stores, goods and products valued in excess of $50,000 directly from suppliers located outside the State of Tennessee. Respondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. I shall grant counsel for General Counsel's motion to correct Re- 1 spondent's exhibit file by removing exhibits 4 and 5 and placing them in a rejected exhibit file, as I ordered be done at the trial The court reporter has inadvertently placed them in a file with other Respondent exhibits which I received into the record This advertent error is corrected ac- cordingly. 277 NLRB No. 98 HECK'S INC. 917 H. LABOR ORGANIZATION C. The Duties of Department Heads/Department Retail Clerks Union, Local 1557, United Food and Commercial Workers International Union, AFL-CIO- CLC is a labor organization within the meaning of Sec- tion 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background Respondent operates 125 stores located throughout nine states, including Ohio, Kentucky, West Virginia, Virginia, Pennsylvania, Maryland, Indiana, North Caroli- na, and Tennessee in which it sells general retail mer- chandise. During January 1984,2 the Union began an organizing campaign among employees at Respondent's Oak Ridge and Oliver Springs, Tennessee stores. On February 21, the Union filed a petition in Case 10-RC-12936 seeking to represent employees at those facilities. Kathleen Jack- son and Vonnie Blalock worked for Respondent as de- partment heads at the Oak Ridge, Tennessee store. De- partment heads were excluded from the appropriate bar- gaining unit by stipulation of the parties. On March 21, Respondent discharged Jackson and Blalock. On April 19, an election was conducted among employees at the Oak Ridge and Oliver Springs stores. The Union failed to receive a majority of the ballots in that election. B, Employment History of Jackson and Blalock Kathleen Jackson first began to work for Respondent in September 1979 at its Oliver Springs store as a sales clerk in the clothing department. She continued working at that store until June 1983 when Respondent completed a new store in Oak Ridge. At that time, Jackson trans- ferred to the Oak Ridge store. Vonnie Blalock began to work for Respondent in No- vember 1979, also at the Oliver Springs store. Blalock began as a sales clerk in the jewelry department, and she also worked in the office. Blalock, like Jackson, trans- ferred to the Oak Ridge store in June 1983. The Oak Ridge store opened for business in late July 1983. From then until November 1983, employees worked under the overall supervision of a store manager- and two or three assistant store managers. In November 1983, Respondent named seven or eight individuals to fill positions as department heads. Jackson was appointed department head in the toy department. Blalock was ap- pointed department head at the service desk and over the cash registers. In addition to the store manager, two or three assistant store managers, and seven or eight depart- ment heads, Respondent employs approximately 30 em- ployees at the Oak Ridge facility. At the time they were promoted to the position of department head at the Oak Ridge facility, Jackson received a raise from $4.25 per hour to $4.73 and Blalock received a raise from $4.10 per hour to $4.73. In January 1984, the title "department head" was changed to "department manager," but there was no change in the job duties of these individuals. 2 All dates here refer to 1984 unless otherwise indicated Managers Kathleen Jackson and Vonnie Blalock both testified regarding their individual duties and authority as depart- ment managers in Respondent's Oak Ridge store. James Doss, who is vice president in charge of personnel and who is located at Respondent's corporate headquarters in Charleston, West Virginia, testified on behalf of Re- spondent regarding the duties and authority of depart- ment managers throughout the corporate chain of stores. Jackson, who is the department manager of the toy de- partment, testified that her primary duties were to check in merchandise, check pricing of merchandise, check shelves and keep them adequately stocked, keep the de- partment clean and neat, and do certain recordkeeping. Jackson testified that from November 1983 to January 1984, two employees worked under her in the toy de- partment. With regard to these employees, Jackson's duties included telling them what stock to put out on the shelves and directing them to price the stock as neces- sary. She also directed them when and how to keep shelves orderly and directed them to sweep the floors in the department when necessary. As a department manag- er, Jackson made out a work schedule for these employ- ees which contained work assignments each employee was expected to complete that day. These work assign- ment sheets were then put on a clipboard and hung for employees to consult in order to know what they were expected to do that day. Part of Jackson's duties includ- ed checking on the employees during the course of the day to see that they were doing the work which she had assigned to them. Jackson also admitted on cross-exami- nation, albeit somewhat reluctantly, that as department manager she did participate in scheduling these employ- ees' days on, days off, starting times, and quitting times. As department manager, Jackson had no authority to hire, fire, grant time off, or discipline employees. These actions were solely within the authoril y of the store manager. Jackson did have the authority to recommend such action, but never did so. From this record, there is inadequate evidence from which to conclude whether Jackson's recommendation would have been effective if she had made one. According to Jackson, she spent almost all of her time ordering, checking in, and stocking merchandise. Jackson worked alongside the two other employees in her depart- ment. Jackson had no access to confidential information such as records reflecting the dollar volume of sales in her department. Her access to records was limited to routine matters such as the'number of units of a particu- lar item which were expected to be stocked. As department manager, Jackson held `weekly meet- ings with employees in her department as a part of Re- spondent's "employee involvement program." The pur- pose of these meetings was to accumulate suggestions from employees about improvements that might be made in the store or in how the store was run. According to Jackson's uncontradicted testimony, her role during these meetings was solely to accumulate and collect the sug- gestions, and then to forward them to Respondent's cor- 918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD porate headquarters. She played no role in assessing or implementing the suggestions. On cross-examination, Jackson admitted attending reg- ular meetings of department managers. According to Jackson, at these meetings the department managers would discuss among themselves advertisements for up- coming sales and levels of-merchandise to be ordered. Doss, who I credit in this respect, testified that at these department manager meetings, 20 to 25 percent of the meetings was usually devoted to discussing personnel problems. The area over which Blalock acted as department manager, was considerably larger than that of Jackson. Blalock's area encompassed the office, the cash registers, and the service desk. Between 7 and 10 employees worked under Blalock's direction. It is apparent from Blalock's testimony on cross-examination that she regu- larly delegated and assigned work to these employees using her own judgment. Part of Blalock's duties was to check on the work of cashiers to see that they were properly maintaining the area around their cash registers. Blalock also trained employees. If cashiers encountered a problem, they would come to Blalock. Blalock testified that this was not unusual and that she was always able to handle the situations her- self without having to seek higher management. Part of Blalock's responsibilities included determining the number of cashiers which were necessary at any given time. Blalock could determine if cashiers were available to work in other departments. When she felt there was an excess of cashiers, Blalock would then check with an assistant manager to determine to which department the cashier should be sent. Blalock, like Jackson, had no authority to hire, fire, grant time off, or discipline employees. She, like Jackson, could recommend such action to the store manager, but never did. There is insufficient evidence from which to determine whether her recommendations might have been effective if made. Blalock admitted that when they became department managers , employees had to sign a statement agreeing not to discuss their wages with other employees. Blalock and Jackson also admitted, albeit reluctantly, that in Jan- uary 1984 each of them received a "Supervisory Associ- ate Handbook" for which they were required to sign a receipt. This receipt states in part, "I understand as a su- pervisor, that my conduct is expected to set an example for non-supervisory employees and other supervisors." Both Jackson and Blalock claimed they did not read this receipt in its entirety before signing it. I discredit both of them in this regard just as I discredit both of their claims that they did not consider themselves to be supervisors. Department managers enjoyed certain, albeit limited, benefits and privileges not accorded to rank-and-file em- ployees. More specifically, department managers general- ly worked a daytime schedule from 9:30 a.m. until 5 p.m. Only infrequently were they called upon to work eve- nings or weekends Department managers also received preference in scheduling vacations. Department manag- ers received 3 paid sick leave days a year, while rank- and-file employees received none. Doss testified that the authority of department manag- ers was the same in all of Respondent's 125 stores. I find this hard to believe, particularly since the authority of Jackson and Blalock differed somewhat within a single store due to the differences between the areas to which they were assigned. I do not credit Doss' assertion that department managers had the authority to discipline em- ployees. After initially making this claim, Doss later tes- tified that department managers had the authority to go to the store manager if an employee was not doing their job. The latter testimony is consistent with that of Jack- son and Blalock, and I find that was the extent of their authority. Nor-do I credit Doss that department manag- ers had the authority to move employees from one de- partment to another. After first making this claim, Doss later testified that department managers had the author- ity to go to the store manager if they needed additional help in their department. I find that Blalock, whose testi- mony has already been recited, accurately described the limits of her authority to transfer employees between de- partments. Doss testified that department managers scheduled the breaks and lunch hours of employees working in their departments. This testimony tends to be consistent with that of Jackson and Blalock, and I find it to be accurate. I do not credit Doss, however, that de- partment managers have authority to schedule overtime for employees without consulting with the store manag- er. Nor do I credit Doss that department managers are the individuals to whom employees report when request- ing time off or that department managers have the au- thority to grant or deny such requests independently. Doss struck me as exaggerating the authority of depart- ment managers in these areas. Section 2(11) of the Act defines a supervisor as being "any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, pro- mote, discharge, assign, reward, or discipline other em- ployees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action . ... It is well settled that to be a supervisor, it is not necessary that an individual possess all of these enumer- ated powers. Rather, possession of any one of them is sufficient to confer supervisory status provided that the individual exercises independent judgment on behalf of management in exercising such authority. See Hydro Conduit Corp, 254 NLRB 433, 436-437 (1981). It has has been recognized that investing someone with a supervi- sory or managerial title does not make them a supervisor within the meaning of the Act. Rather, in order to be found a supervisor, one must actually exercise one of the enumerated powers of Section 2(11) over particular em- ployees See Magnolia Manor Nursing Home, 260 NLRB 377, 385 (1982). Bearing these principles in mind, I find that as a general proposition department managers in Re- spondent's Oak Ridge, Tennessee store are supervisors within the meaning of the Act. More specifically, I find that throughout all times relevant to this case, Vonnie Blalock exercised supervisory authority and was a super- visor within the meaning of the Act. I also find, howev- er, that while Kathleen Jackson may have been a super- visor during the months of November and December HECK'S INC. 1983 and January 1984, she exercised no supervisory au- thority and was not a supervisor within the meaning of the Act during February or March 1984. I find it unnecessary to discuss in any detail the duties of department managers which do not evidence supervi- sory authority. There are, however, certain duties per- formed by department managers which I find are indicia of supervisory authority. In their order of significance, these duties are: (1) Department managers assign and del- egate work to employees using their own judgment. They also follow up to see to it that work assigned is in fact completed. (2) Department managers participate in scheduling starting and quitting times, workdays, and va- cation periods for employees in their departments. They also determine when employees will take rest breaks and lunchbreaks. (3) Department managers participate in reg, ular meetings which are devoted in significant part, i.e., 20 to 25 percent, to discussing personnel problems. (4) Department managers train new employees. I have pur- posely placed these in descending order of significance. I do not believe that either of the last two of these four indicia, either standing alone or in conjunction with one another, are sufficient to make department managers su- pervisors within the meaning of the Act. It is not unusual for more experienced employees to be used in training new employees, and this duty alone is not sufficient to cloak someone with supervisory authority within the meaning of the Act. Further, it is clear that the vast ma- jority of time spent in department manager meetings, i.e., 75 percent to 80 percent, is devoted to clearly nonsuper- visory matters such as discussing ads or the display of merchandise. The assignment of work and the authority to responsibly direct other employees, however, are both expressly set forth in Section 2(11) of the Act as being sufficient to make one a statutory supervisor. Scheduling employees to work, determining when employees will take breaks, and, most importantly, assigning and dele- gating work to employees fall squarely within the statu- tory definition of a supervisor. Throughout the period relevant to this case, Vonnie Blalock exercised such au- thority over a group of 7 to 10 employees. Accordingly, I find that Blalock was a supervisor within the meaning of Section 2(11) of the Act. During November and December 1983 and January 1984, Kathleen Jackson exercised all four indicia of su- pervisory authority enumerated above over two employ- ees in the toy department. During those months, Jackson functioned as a supervisor within the meaning of the Act. According to Jackson's uncontradicted testimony, during January 1984 these two employees stopped work- ing in the toy department, which is a relatively small de- partment in comparison to other departments. At that time, Jackson was told by Store Manager Doug Green that because the toy department was small, Jackson did not need help in that department except during the Christmas season. After that, Jackson worked in the toy department alone. There is no evidence that after the two employees were taken out of the toy department, Jackson exercised supervisory authority over any other employee. During February and March 1984, there were no employees in the toy department for whom Jackson scheduled work or breaks. There was no employee to 919 whom she assigned or delegated work. Accordingly, I find that during February and March 19533, regardless of the job title she might have carried, Jackson in fact was not a supervisor within the meaning of the Act. D. Respondent's Antiunion Campaign Jackson and Blalock both testified that during Febru- ary and March 1984 as the union campaign progressed, meetings of department managers became more and more frequent. By the time they were discharged on March 21, these meetings were being held almost daily. Department manager meetings during this period were usually attended by Corporate President Ray Darnell, Vice President Daryl Elam, District Manager Rolley, Store Manager Doug Green, and Assistant Store Manag- ers Borders, Reed, and Mobeley. Some meetings were also attended by Vice President in Charge of Personnel James Doss, Ropecki, whose position is not disclosed, and Sommerfield, a labor relations consultant. Kathleen Jackson testified that at these meetings, Dar- nell told the department managers Heck's would not have a union, did not need one, and would not sign a contract with a union. Darnell stated that Respondent would close the Oak Ridge store before they would have a union represent employees. Darnell then told the de- partment managers that if any of them had signed a union card and would like to get it back, to tell him and he would get it back for them. Someone in the audience suggested that people would be afraid to tell them if they signed a card. Darnell replied that they could just give him a note. The person suggested that they would also be afraid to do that. Darnell then stated, "Well, it don't make any difference, next Friday we are going to meet with the Union anyway and compare union cards to the payroll." Darnell told the department managers that if any em- ployees went on strike and walked the picket line, they would be terminated, and people would be hired in their place. Darnell said he would not have a union represent- ing employees and he would fire his own mother before he would let a union come in. Counsel for the General Counsel's alternative theory in this case is that if Jackson and Blalock are found to be supervisors, evidence will show they were discharged for refusing to commit unfair labor practices. In Jack- son's original description of this meeting with Darnell, Jackson did not say one word about Darnell asking the department heads to commit unfair labor practices. Only later, when I pointed this out to counsel for the General Counsel because one of her questions assumed this fact which was not yet in evidence, did counsel for the Gen- eral Counsel then go back and draw from the witness the testimony that Darnell told department heads "to go out and talk to the employees and tell them that . . . he would not sign a contract and he would not let a union in, he would close the doors." Jackson's testimony is un- contradicted, and it is credited. Nevertheless, the leading nature of counsel for the General Counsel's questions which were necessary to elicit this testimony tends to di- minish the viability of the General Counsel's theory. This is discussed in greater detail below. 920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Much of Blalock's testimony repeated that of Jackson regarding the statements made by Darnell to department managers . Blalock, like Jackson, testified that Darnell stated he would -never sign a contract with the Union even if it was voted in, that he would close the doors before he would allow a union to represent the employ- ees, and that he would fire his own mother if it would keep the Union out of Heck's. In a somewhat different version from, Jackson, Blalock testified that Darnell stated department managers could tell employees that if they signed a union card, they could withdraw it, and employees could request it be sent back to them or stricken from the list of card signers. Blalock, like Jack- son, testified that Darnell stated he could find out who signed cards on behalf of the Union. Blalock also testi- fied that Darnell told department managers they would not be able to vote in the Board-conducted election. One of the department managers, other than Jackson or Bla- lock, asked Darnell if they could not vote since they still punched a timeclock like rank-and-file employees. Dar- nell responded that it had been settled, and department managers were not able to vote. Blalock testified that Darnell told the department managers to go out and find out what they could, to find out if anyone had been sign- ing union cards, and if they had been attending union meetings. Blalock, unlike Jackson, did not testify that Darnell told the department managers to tell employees he would not let a union represent employees or sign a contract with a union, or that he would close the doors of the store before doing so. As I have already indicated, Jackson's testimony is credited. Nevertheless, I take into account this difference in their testimony when analyzing the motive for Respondent discharging Blalock and Jack- son. Jackson testified that 2 days after this meeting with Darnell, she had occasion to speak with sales clerks Teresa Duncan and Midge Adcocks about the meeting with Darnell. Duncan asked Jackson if what Darnell had told them was true. Jackson asked Duncan what it was that Darnell had said. Duncan then told Jackson that Darnell had had a meeting with some of the employees in the store and had told them that they did not need a union, that they would not have one. that he would not sign a contract with the Union, that he would close the doors, and that if anybody walked a picket line, they would be terminated. Jackson replied to Duncan, "Well you heard it for yourself, that is what he said." Duncan or Adcocks then asked Jackson, "Can he do that?" Jack- son replied, "I don't know, you will have to ask him." On cross-examination, Jackson added that in response to Duncan's question, Jackson told Duncan and Adcocks that what Darnell had told them at the meeting, he had also told the department managers to tell employees on their own. Blalock testified that after the meeting between Dar- nell and department managers described above, Blalock spoke to cashiers Vivian Bargus, Lauren Hunnicutt, and Jeffrey Huckabee. One of these employees asked Blalock what went on in the meeting with Darnell. Blalock an- swered, "This is exactly what Ray Darnell told me to tell you" and she then proceeded to tell them Darnell said there would not be a union, that he would not sign a discharged and replaced by Gardner contract, and he would close the store if necessary. Bla- lock also stated that Darnell said that if employees walked a picket line and did not come to work, they would be fired. One of these three employees then asked Blalock if Darnell could do these things. Blalock re- sponded that Darnell was president of the Company. About March 15, Jackson and Blalock both received letters from the Union which informed them that as su- pervisors of Respondent, certain conduct violated the National Labor Relations Act. This letter enumerated eight specific kinds of conduct which the Union stated would violate the Act. The letter stated that its purpose was "to help prevent violations of the law by explaining in general terms some of the things which have been ruled illegal for supervisors to do during the course of an organizing drive." After receiving copies of this letter, Jackson and Bla- lock went together to talk to Store Manager Gardner.3 Jackson and Blalock showed Gardner the letter, told Gardner that they had done a number of things which the letter said they were not supposed to do, and in- formed Gardner they were concerned they might be held personally liable in some way. Jackson and Blalock asked Gardner what they should do. Gardner told them to "lay low" as testified to by Jackson or to "stay cool" as testified to by Blalock. Gardner told them that Dar- nell would be coming to the store in the next few days and that he would be able to tell them what to do. On March 19, 20, and 21, Darnell did come to the Oak Ridge store along with Elam and Rolley. Jackson and Blalock never spoke to Darnell personally about the letter on any of those 3 days. On March 19, Elam met privately with Blalock. Elam told Blalock that Respondent had been considering creat- ing a new position to be called floor supervisor. Several months before this, Assistant Store Manager Bob Bor- ders told Blalock that Respondent was thinking about creating such a position and that he was going to recom- mend Blalock for the job. Elam told Blalock that she was the kind of person whom Respondent wanted, for the job, that she was responsible and worked well with people, and that she had been selected for the job at the Oak Ridge store. On March 20, a meeting of department managers from the Oak Ridge and Oliver Springs stores was held at the Oak Ridge Holiday Inn. Also in attendance at this meet- ing were Darnell, Ropecki, Elam, Rolley, and Sommer- field. The meeting lasted almost 4 hours. According ,to both Jackson and Blalock, who I credit, Darnell again addressed department managers and told them that Re- spondent was against the Union, that Respondent was not going to sign a contract with the Union, that Re- spondent would close its doors before it allowed employ- ees to be represented by a union, and that any employee who walked a picket line and did not come to work would be fired. After Darnell was finished speaking, one of the department heads brought up the letter which de- partment heads had received from the Union. According 3 In late February or early March. Store Manager Doug Green was HECK'S INC. 921 to Blalock, "Some department heads" expressed concern about the letter. It was neither Jackson nor Blalock, however, who brought up the subject of the letter or ex- pressed concern. Whoever it was that brought up the subject of the letter asked Darnell if department manag- ers could be held personally liable for what they had been saying to employees about the Union. Darnell said no, that department managers should not worry about that, and that Heck's would take full responsibility. Dar- nell then said that the department managers would not have to worry about it anyway, that it was just simply a legal matter, and that he would handle it. Darnell stated that he had been in similar situations before and he just took decisions finding him guilty of unfair labor practices and stuck them on a nail on his wall. Darnell then intro- duced Sommerfield. Darnell stated that Sommerfield would be telling the department managers about the Union and how they could stop the Union through legal means. Sommerfield then took over the meeting. Using vari- ous printed materials and handouts, Sommerfield dis- cussed with the department managers various fact situa- tiions to determine if certain actions were legal or illegal. Each department head received a booklet describing do's and don'ts of proper behavior. I credit Doss that Darnell told department managers as supervisors, he expected them to be loyal to Respondent and support the Compa- ny's position. I do not credit Doss that Darnell told de- partment managers he expected them not to get the Company in trouble. I find Doss' claim to be totally in- consistent with the credible and undenied testimony of Jackson and Blalock that Darnell told department man- agers not to worry about whether their conduct was un- lawful and that Darnell would take care of these matters. Sommerfield, however, did emphasize to department managers certain conduct, referred to as "TIPS," which they were not allowed to do by law: Threaten, Interro- gate, Promise, Surveil. When Sommerfield was finished addressing the depart- ment managers, Ropecki addressed the -group. Ropecki told the department managers that Respondent was in the process of creating a new position in the stores to be called floor supervisor. Ropecki stated that the position was "almost like an assistant manager." He informed the department heads that the person chosen for this position would have'to be a hard worker, responsible, and some- one who wanted a future at Heck's, who would one day want to go on to be a manager. Ropecki stated that Re- spondent had not chosen the individual to fill that posi- tion in the Oliver Springs store. He told the department managers that at Oak Ridge, however, Blalock had been chosen for the position. Ropecki pointed out Blalock to the assembled group. Blalock thanked Ropecki, adding that she did not yet know what her duties would be. Ro- pecki told Blalock that on the following day she would meet with management who would describe her duties and tell her what raise she would receive along with the job. On that upbeat note, the meeting ended. On the morning of March 21, Kathleen Jackson was told by Store Manager Gardner that Rolley would like to meet with her in the store office. When Jackson got to the office, Rolley and Sommerfield were both there. Sommerfield told Jackson to be seated, and then in- formed her that he would like to "do a survey" of Jack- son. Jackson asked if she had to be the first one to have the survey done. Sommerfield replied that he could start with somebody else, but that all the department manag- ers were going to have them done in any event. Jackson told Sommerfield she had just been kidding, that she did not mind being first. Sommerfield asked Jackson her name, address, social security number, and other routine questions. As Jackson spoke, Sommerfield wrote on a piece of paper. Sommerfield asked Jackson if she would be willing to return to the clothing department, noting that the manager in that department had quit and that Respondent needed someone in clothing. Prior to this Elam, Mobeley, and Reed had all asked Jackson if she would be, willing to take the department manager's job in the clothing department. According to Jackson, the clothing' department took up almost half of the store, and she asked Sommerfield if she would get a raise if she took the position. Sommerfield told Jackson that there would be no immediate raise, but that he would work on getting her a raise. Sommerfield told Jackson, "You are damned good and you belong in clothing." Jackson asked Sommerfield who she should inform if she decided to take the job. Sommerfield responded that Rolley and Gardner would talk to Jackson in the morning, and she could tell them. Sommerfield then asked Jackson if she had signed a union card. Jackson said she had not. Sommerfield asked Jackson if she had ever been to a union meeting. Jackson again replied that she had not. Sommerfield then asked Jackson if she had ever been invited to a union meeting, and Jackson replied that she had. Sommerfield asked Jackson who had invited her. Jackson replied, "A member of the Union invited me." Sommerfield asked Jackson if she had gone to the meeting. Jackson replied, "No, I didn't go." Sommerfield asked Jackson if she knew an employee named Shirley Patterson. Patterson is a salesclerk in the Oliver Springs store. Jackson replied that she did. Sommerfield asked Jackson to tell him what she knew about Patterson. Jackson told Sommerfield that they had worked in the same store for about 4 years, she on one side of the store and Patterson on the other. Jack- son stated that they sometimes took rest breaks and lunchbreaks together. Jackson then told Sommerfield that in order for her to say any more about Patterson, he would have to ask her direct questions which she would answer. Sommerfield asked Jackson if she knew that Pat- terson was active in the Union. Jackson replied that she did not know this for sure, but that she had heard it. Sommerfield asked Jackson if Patterson had ever had union meetings at her house. Again, Jackson replied that she did not know this for sure, but that she had heard it. Sommerfield asked 'whether or not Patterson ever par- ticipated in any union activities. Again, Jackson replied that she had heard this but did not know for sure. Sommerfield then asked Jackson if she liked Store Manager Doug Green, who had been fired about 3 weeks prior. Jackson said that she did. Sommerfield then asked if Jackson liked the current management. Again, Jackson replied that she did. At that point, Sommerfield 922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD returned once again to the Union, asking Jackson if she was sure that she did not sign a union card. Jackson raised her hand and said, "I will swear I haven't signed a union card." Sommerfield asked, "Have you been to a union meeting?" Jackson replied, "No, I have not been to a union meeting." Sommerfield then went on for some time, switching back and forth between questions about the store and questions about Jackson's union activity. Sommerfield then asked, "Well, do you think that you need a union?" Jackson replied, "No, I have been here four and a half years and I have been treated fairly." Sommerfield replied, "Well, that's good." During this meeting, Sommerfield also asked Jackson if she had been told by anyone that she could join the Union. Jackson replied that she had, and Sommerfield asked Jackson who had told her this. Jackson replied that she had been told this by some of the rank-and-file employees in the store who said she would be able to join the Union since she punched a timeclock and therefore was not really a part of management. Jackson told Sommerfield that she had told the employees she did not think she could join the Union. This meeting between Jackson, Sommerfield, and Rolley lasted almost 2 hours. When it was finally over, Jackson returned to work. No other department manager was subjected to a simi- lar "survey." About 5 p.m. that same day, Blalock was summoned to Gardner's office. Waiting there were Gardner and Rolley Blalock sat down, expecting to discuss with Gardner and Rolley her promotion to the new position as floor supervisor and any raise that she might get as a result. Instead, without any prior warning, Rolley pro- ceeded to inform Blalock that he knew how unhappy she was, that Fleck's was also unhappy with her, and that Respondent thought it would be to both of their benefits if they "parted company." Blalock asked, "Are you firing me?"' Rolley responded, "Yes." Blalock then asked how she could be fired when yesterday she had been told how good she was. Rolley replied, "Well, your atti- tude and your work, we just decided that we need to part company." Blalock demanded a reason. Rolley re- plied, "We have been discussing it for several days and we have decided that you need to be let go." Blalock re- sponded, "There has got to be more," but Rolley would neither respond nor look at Blalock. Finally, Rolley said, "That is all you need to know." Blalock then turned to Gardner asking, "Did you know this was going to happen? Did you have anything to do with this?" Gard- ner would neither reply nor look at Blalock. He simply kept his head down, writing on a piece of paper. Blalock asked for a termination slip, and was told she would get it in the mail. Blalock then asked if she would be able to draw unemployment, and was told there would be no problem. Blalock then asked what Respondent would put as the reason for her termination, and she was told "a bad attitude and bad work." Blalock responded that she did not know how her work could get so bad in 24 hours. The meeting ended. Immediately after Blalock was discharged, Jackson was also called to Gardner's office and discharged. Jack- son, like Blalock, was told as the reason, "You are un- happy with Heck's, Heck's is unhappy with you, and you do bad work." Analysis and Conclusions Speaking at meetings of department heads in February or March, and again on March 20, 1984, Respondent's president Ray Darnell threatened store closure if the Union won an election, threatened discharge if employ- ees went on strike, and stressed the futility of the em- ployees supporting the Union since Respondent would never sign a contract even if the Union won an election. At the earlier meeting, Darnell also told the department heads to solicit employees to withdraw from the Union by telling them that they could withdraw their union au- thorization cards. I have found above that at the time of these meetings Kathleen Jackson was not a supervisor within the meaning of the Act, but rather was a statutory employee. In view of this finding, Darnell's remarks to the assembled group which included Jackson violated Section 8(a)(1) of the Act. Following the earlier meeting that Darnell held with department managers, both Jackson and Blalock effec- tively repeated Darnell's remarks to employees. Since Jackson was a statutory employee, I do not find that her statements constitute violations of Section 8(a)(1) of the Act by Respondent. Blalock, however, has been found to be a supervisor. Accordingly, I find that her remarks to employees do violate Section 8(a)(1) of the Act. On March 21, 1984, Labor Relations Consultant Som- merfield and District Manager Bill Rolley interrogated Jackson extensively concerning her union membership, activities, and desires, and the union membership, activi- ties, and desires of other employees. There is no indica- tion whatever that Jackson was a leading and open union adherent within the meaning of the Board's decision in Rossmore House, 269 NLRB 1176 (1984). Accordingly, I find that this interrogation of Jackson violated Section 8(a)(l) of the Act. The unrebutted evidence in this case more than ade- quately establishes a prima facie case that Jackson was fired because Respondent suspected that she supported the Union. On the morning Jackson was discharged, she was subjected to a "survey" by Respondent which in- cluded extensive and repeated interrogation about her own union sympathies as well as the union sympathies and activities of other employees. That same afternoon, Jackson was precipitously discharged. Respondent has not even attempted to offer any evidence which might support a proper and lawful reason for Jackson's dis- charge. Accordingly, I find that Jackson was discharged by Respondent because of her actual or suspected activi- ties on behalf of, or support for, the Union in violation of Section 8(a)(l) and (3) of the Act. Counsel for the General Counsel argues that in the event Blalock is found to be a supervisor within the meaning of the Act, the evidence supports a conclusion that she was discharged because she failed or refused to commit unfair labor practices, or committed them only reluctantly, as directed by Darnell Counsel for the Gen- eral Counsel relies on Talladega Cotton Factory, 106 NLRB 295 (1953), and apparently takes this position be- HECK'S INC. 923 cause the current Board has held that it is not unlawful for an employer to discharge a supervisor because of the supervisor's actual or suspected union activity or sup- port, regardless of the inhibiling effect such a discharge might have on the union activities of statutory employ- ees. Parker-Robb Chevrolet, 262 NLRB 402 (1982).4 The evidence is weak that Respondent even asked its supervisors to commit unfair labor practices. As a result of leading questions by counsel for the General Counsel, Jackson testified that Darnell asked department heads to tell employees that Respondent would not sign a con- tract and before it would let a union come in, Respond- ent would close its doors. Blalock did not offer testimo- ny to corroborate Jackson. Blalock simply testified that Darnell told department managers they should encour- age employees to withdraw their union authorization cards. Counsel for the General Counsel's leading ques- tions and the failure of the two witnesses to corroborate one another tend to weaken the General Counsel's case. While Blalock, with Jackson, approached Store Manager Gardner and told him she was concerned because she had done things which the Union's letter said she should not do, Gardner did not chastise Blalock in any way be- cause of her concern. Rather, Gardner simply told Bla- lock to "stay cool," that Darnell was coming to the store in the next few days, and Darnell would tell Gardner and Blalock what to do. Blalock never spoke to Darnell about her concern created by the letter. Other depart- ment managers, however, openly expressed similar con- cern to Darnell in the meeting of department managers on March 20. Darnell did not chastise or ridicule these other managers for having a concern similar to Blalock's. Instead, Darnell told the department managers not to worry, that they could not be held personally liable, and that Respondent would take full responsibility. There is no indication that these other department managers who expressed concerns similar to Blalock's concern were dis- charged or otherwise retaliated against for having this concern or voicing it to Darnell. The fact that it was not Blalock, but rather these other department managers who openly voiced concern to Darnell, and the fact that nothing apparently happened to them also tend to weaken the General Counsel"s theory. The record as a whole unquestionably supports the conclusion that Blalock's discharge was in some way connected with the Union. Blalock and Jackson had both expressed to Gardner their concern about having com- mitted unfair labor practices. On the morning of March 21, Jackson was interrogated extensively about her union activities and sentiments. Jackson and Blalock were both precipitously discharged that same afternoon, only mo- ments apart from one another. Respondent offered no ex- planation or reason of any kind for discharging either Jackson or Blalock. There is, however, no indication that during Jackson's extended interrogation on the morning of March 21 she was in any way questioned or spoken to about her concern over having received the Union's March 15 letter or reluctance on her part to commit 4 The Board would apparently find irrelevant the admissions of two corporate managers in this case that Jackson and Blalock were dis- charged in order to serve as examples to rank-and-file employees. unfair labor practices on behalf of Respondent. Rather, the interrogation was directed entirely toward her and employees' activities on behalf of, and support for, the Union. Considering the entire record, I find there is no more evidence from which to conclude that Blalock was dis- charged for refusing to commit unfair labor practices than there is evidence that she was discharged because of her actual or suspected activities on behalf of, or support for, the Union. Accordingly, I must conclude counsel for the General Counsel has failed to sustain its burden of proof herein, and I shall dismiss that portion of the com- plaint. CONCLUSIONS OF LAW 1. Respondent, Heck's Inc., is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Retail Clerks Union, Local 1557, United Food and Commercial Workers International Union, APL-CIO- CLC is a labor organization within the meaning of Sec- tion 2(5) of the Act. 3. Throughout all times relevant to this case, Vonnie Blalock exercised supervisory authority and was a super- visor and agent of Respondent within the meaning of Section 2(11) of the Act. 4. While Kathleen Jackson may have been a supervisor within the meaning of Section 2(11) of the Act during the months of November and December 1983 and Janu- ary 1984, she exercised no supervisory authority and was not a supervisor, but rather was an employee within the meaning of the Act during February and March 1984. 5. During meetings conducted in late February or early March 1984, and in a meeting on March 20, 1984, Respondent, acting through its president, Ray Darnell, threatened employees that Respondent would not sign a contract with a union even if employees chose it as their collective-bargaining representative; threatened that Re- spondent would close its Oak Ridge and Oliver Springs stores before it would allow a union to represent em- ployees; solicited employees to revoke and retract union authorization cards; threatened that if employees went on strike and walked a picket line they would be terminated and people would be hired in their place; and threatened employees that he would fire his own mother before he would allow a union to come into Heck's; and Respond- ent thereby violated Section 8(a)(1) of the Act. 6. In late February or early March 1984, Respondent, acting through Vonnie Blalock, told employees that Re- spondent would not tolerate a union, that Respondent would not sign a contract with a union even if they se- lected it to represent them, and that Respondent would close its Oak Ridge store if necessary in order to avoid unionization, and Respondent thereby violated Section 8(a)(1) of the Act. 7. On March 21, 1984, acting through its agent, Labor Relations Consultant Sommerfield, Respondent interro- gated an employee about her union activities and senti- ments and the union activities and sentiments of other employees, and Respondent thereby violated Section 8(a)(1) of the Act. 924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 8. On March 21, 1984, Respondent discharged employ- ee Kathleen Jackson because of her actual or suspected activities on behalf of, or support for, the Union, and Re- spondent thereby violated Section 8(a)(1) and (3) of the Act. 9. There is no more evidence from which to conclude that Supervisor Vonnie Blalock was discharged by Re- spondent on March 21, 1984, for refusing to commit unfair labor practices than there is evidence that she was discharged because of her actual or suspected activities on behalf of, or support for, the Union, and Counsel for General Counsel has therefore failed to sustain its burden of proof herein. Accordingly, that portion of the com- plaint is hereby dismissed. 10. The unfair labor practices which Respondent has been found to have engaged in, as described above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce within the mean- ing of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent , Heck's Inc., has en- gaged in certain unfair labor practices in violation of Section 8(a)(1) and (3) of the Act, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed5 ORDER The Respondent, Heck' s Inc., Oak Ridge, Tennessee, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Threatening employees that Respondent will not tolerate a union at its Oak Ridge or Oliver Springs stores. (b) Threatening employees with discharge in retalia- tion for supporting Retail Clerks Union, Local 1557, United Food and Commercial Workers International Union, AFL-CIO-CLC or any other labor organization. (c) Threatening to close its Oak Ridge and Oliver Springs stores before Respondent would allow a union to represent employees. (d) Threatening employees that Respondent would not sign a contract with a union even if employees choose it as their collective-bargaining representative. (e) Threatening employees that if they go on strike against Respondent and walk a picket line, they will be terminated. (f) Soliciting employees to revoke and retract union authorization cards. (g) Interrogating employees about their union activities and sentiments, and the union activities and sentiments of other employees. (h) Discharging employees because of their actual or suspected activities on behalf of, or support for, the Union. (i) In any like or related manner 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) Offer Kathleen Jackson immediate and full rein- statement to her former position or, if that position no longer exists, to a substantially equivalent position, with- out prejudice to her seniority and other rights and privi- leges. (b) Make whole Kathleen Jackson for any loss of earn- ings or benefits she may have suffered by reason of the discrimination against her by payment to her of a sum of money equal to the amount she normally would have earned from the date of such discrimination to the date of Respondent's offer of reinstatement, less net interim earnings, with backpay to be computed in the manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest to be computed in the manner prescribed in Florida Steel Corp., 231 NLRB 651 (1977); see generally his Plumbing Co., 138 NLRB 716 (1962). (c) Remove from its files any reference to the dis- charge of Kathleen Jackson, and notify her in writing that this has been done and that evidence of the unlawful discharge will not be used as a basis for future personnel action against her. (d) Preserve 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 records nec- essary to analyze the amount of backpay due under the terms of this Order. (e) Post at its stores in Oak Ridge and Oliver Springs, Tennessee, copies of the attached notice marked "Appen- dix."6 Copies of the notice, on forms provided by the Regional Director for Region 10, after being signed by the Respondent's authorized representative, shall, be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, de- faced, or covered by any other material. (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 5 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. 6 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " HECK'S INC. 925 APPENDIX 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 threaten employees that we will not tol- erate a union at our Oak Ridge or Oliver Springs stores. WE WILL NOT threaten employees with discharge in retalial ion for supporting Retail Clerks Union, Local 1557, United Food and Commercial Workers Interna- tional Union, AFL-CIO-CLC, or any other labor orga- nization. WE WILL NOT threaten to close our Oak Ridge or Oliver Springs stores before we would allow a union to represent employees; threaten employees that we would not sign a contract with a union even if employees choose it as their collective-bargaining representative; or threaten employees that if they go on strike and walk a picket line, they will be terminated. WE WILL NOT solicit employees to revoke and retract union authorization cards. WE WILL NOT interrogate employees about their'union activities and sentiments, and the union activities and sentiments of other employees. WE WILL NOT discharge employees because of their actual or suspected activities on behalf of, or support for, the Union. 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. WE WILL offer Kathleen Jackson immediate and full reinstatement to her former position or, if that position no longer exists, to a substantially equivalent position, without prejudice to her seniority and other rights and privileges. WE WILL make whole Kathleen Jackson for any loss of earnings or benefits she may have suffered by reason of the discrimination against her by payment to her of a sum of money equal to the amount she normally would have earned from the date of such discrimination to the date of our offer of reinstatement, less net interim earn- ings. WE WILL expunge from our files any reference to the discharge of Kathleen Jackson, and notify her in writing that this has been done, and that evidence of the unlaw- ful discharge will not be used as a basis for future per- sonnel action against her. HECK'S INC.