Heck'S, Inc

HECK S INC 1111 Heck's, Inc and United Food and Commercial Workers Union, Local 23, AFL-CIO-CLC and United Food and Commercial Workers Interna- tional Union, Local 1059, AFL-CIO-CLC Cases 6-CA- 16888, 6-CA-17110, and 6-CA- 16888-2 (formerly 9-CA-20647) May 18, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND HIGGINS Upon charges filed by United Food and Com- mercial Workers Union, Local 23, AFL-CIO-CLC (Local 23) on November 7, 1983, and February 13, 1984, and by United Food and Commercial Work- ers International Union, Local 1059, AFL-CIO- CLC (Local 1059) on February 13, 1984, the Gen- eral Counsel of the National Labor Relations Board issued an order consolidating cases, and a consolidated amended complaint and notice of hearing on April 17, 1984 The complaint alleges that the Respondent violated Section 8(a)(1) of the Act by engaging in surveillance of its employees' union activity, and Section 8(a)(1) and (5) of the Act by denying access to its Wheeling, West Vir ginia facility to designated collective-bargaining agents of Local 23, by unilaterally issuing an em- ployee handbook entitled "AN INFORMATION GUIDE FOR OUR ASSOCIATES" (i e, employ- ees) to all of its employees, including those at its Wheeling and Nitro, West Virginia facilities in volved in the instant case, by promulgating, main taining in effect, and requiring employees to prom ise in writing to be bound by provisions in the em ployee handbook requesting employees not to dis- cuss their salaries with other employees, advising employees that the Respondent does not want any of its employees to be represented by a union and that there is no need for a union or any other paid intermediary to stand between the employees and the Company, encouraging employees to report grievances directly to the store manager, and re- serving to the Respondent the right to make changes in the handbook's guidelines or their appli cation as the Respondent deems appropriate The Respondent filed a timely answer admitting in part and denying in part the allegations of the com- plaint On June 20, 1984, the General Counsel, Local 23, Local 1059, and the Respondent filed a stipula- tion of facts and joint motion to transfer proceed ings directly to the Board The parties waived a hearing and the issuance of a decision by an admin istrative law judge and indicated their desire to submit the case directly to the Board for findings of fact, conclusions of law, and a decision The parties also agreed that the charges, complaints, an swers to complaints, and the stipulation of facts would constitute the entire record before the Board On September 13, 1984, the Board issued an order granting the parties' motion, approving the stipulation, and transferring the proceedings to the Board Thereafter, the General Counsel and the Respondent filed briefs The National Labor Relations Board has delegat- ed its authority in this proceeding to a three member panel On the entire record and the briefs, the Board makes the following FINDINGS OF FACT I JURISDICTION The Respondent, a West Virginia corporation with an office and place of business in Wheeling, West Virginia, and with facilities located in various States of the United States, including the States of West Virginia, Ohio, Pennsylvania, Maryland, Ten nessee, Virginia, Kentucky, Indiana, and North Carolina, is engaged in the operation of retail de- partment stores and a warehouse for the wholesale distribution of consumer goods for sale at its retail stores The only facilities involved in the instant proceeding are the Respondent's Warwood Shop- ping Plaza, Wheeling, West Virginia location, and the Respondent's warehouse located in Nitro, West Virginia During the 12 month period ending March 31, 1984, a representative period, the Re- spondent, in the course and conduct of its above described operations, derived gross revenues in excess of $500,000 During the same 12-month period, the Respondent purchased and received at its Wheeling facility products, goods, and materials valued in excess of $50,000 directly from points outside the State of West Virginia During the same 12-month period, the Respondent purchased and received at its Nitro warehouse products, goods, and materials valued in excess of $50,000 di- rectly from points outside the State of West Vir ginia We find that the Respondent is an employer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act, and that Local 23 and Local 1059 are labor organizations within the meaning of Section 2(5) of the Act II ALLEGED UNFAIR LABOR PRACTICES A Stipulated Facts 1 The following employees of the Respondent constitute a unit appropriate for the purposes of 293 NLRB No 132 1112 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD collective bargaining within the meaning of Section 9(b) of the Act All full-time and part-time selling and non sell- ing employees employed by the Employer in the following stores (Local 1059) Store #5, Ashland, Kentucky, Store #13, Russell, KY, Store #21, Athens, Ohio, Store #25, Circle ville, Ohio, Store #31, Marietta, Ohio, (Local 1407) Store #8, Wheeling, West Virginia, Store #12, Point Pleasant, West Virginia, and Store #48, Prestonburg, Kentucky, but exclud ing the store manager, assistant store manager, department heads, casual employees, one (1) confidential employee per store, and all profes sional employees, guards and supervisory em ployees as defined in the Act 2 At all times material, various local unions of the United Food and Commercial Workers Union, AFL-CIO-CLC, including Local 23 at the Re spondent's Wheeling facility (Local 23 or the Union), have been the designated exclusive collec tive bargaining representatives of the above unit and, since about August 2, 1982, the Union has been recognized as such representative by the Re- spondent Such recognition has been embodied in a collective-bargaining agreement, which was effec- tive by its terms for the period August 1, 1982, to August 1, 1985 3 About March 1, 1983, Local Unions 1407, 590, and 424 of the United Food and Commercial Workers International Union merged to form United Food and Commercial Workers, Local 23, AFL-CIO-CLC This merger became effective after a majority vote of members of each local and the unanimous recommendation by the board of Locals 590, 1407, and 424 and the United Food and Commercial Workers International President Wil- liam H Wynn Local 1407 was signatory to the collective-bargaining agreement referred to above 4 At all times material, the Union, by virtue of Section 9(a) of the Act, has been and is the exclu- sive representative of the above unit for the pur- poses of collective bargaining with respect to rates of pay, wages, hours of employment and other terms and conditions of employment 5 At all times material, Jack Lewis, Gary Best, and Jerry Isaacs have been Local 23's designated agents for the purposes of collective bargaining with the Respondent 6 About October 28, 1983 (about 11 am), Gary Best and Jerry Isaacs entered the Respondent's Wheeling, West Virginia facility There were ap proximately 20 employees working, most of whom were in Halloween costumes, there were no cus- tomers in the store at this time Best and Isaacs went immediately to the front store office, an- nounced their presence, and asked for Store Man- ager Joseph George 1 They were told that George was in his office in the "back storeroom " Best and Isaacs went directly to the back storeroom office without any discussions with any of the employees on the selling floor Isaacs, who had served as the Union's business representative for the Wheeling facility for the previous year, introduced Best as his replacement and asked George's permission to introduce Best to the Respondent's employees in the Wheeling store Isaacs told George that he would not disrupt any working employees, that he just wanted to walk around the store and introduce Best to employees, and that he would not take more than a minute with each employee George replied "if you want to call a meeting outside the store, that's fine, but you re not talking to the em ployees on my time" Isaacs replied that he felt they had a right to speak to the employees and it was not their intention to hold up or disrupt the work in any fashion-all they wanted to do was in- troduce Best as the new business agent to the em- ployees Best presented a copy of the collective bargaining agreement to George and directed his attention to article III, section B of the agreement, which reads as follows B The Manager of the store and/or company shall grant any accredited union official access to the store for the purposes of satisfying themselves that the terms of this Agreement are being complied with The Company shall make available to Union representative a list of the time records, schedules and the employee's personnel file, excluding confidential medical matters George repeated that he would not allow the union representatives to speak to any of the em ployees in the store Isaacs and Best then left George's office and walked through the storeroom towards the exit Best and Isaacs stopped at the break room, but before they could introduce them selves to the employees there, George approached them and told them that they were not permitted in the break room to speak to any of his employ ees Isaacs and Best left the storeroom area, as they reached the selling floor, they were approached by employee Theresa Connelly Connelly asked Isaacs and Best when they were going to have a union meeting George, who was following approximate- ly 1 foot behind Isaacs and Best, walked between ' The parties stipulated that Wheeling Store Manager Joseph George Wheeling Assistant Store Manager Michael Savarino and the Respond ent s personnel director James Doss were at all times material supervi sors of the Respondent within the meaning of Sec 2 ( 11) of the Act and agents of the Respondent within the meaning of Sec 2(13) of the Act HECK S INC 1113 Connelly, Best, and Isaacs and asked Connelly whether she did not have some work to do She immediately left George stated that he did not want Isaacs and Best speaking to his people on his time Isaacs told him that if he felt that way, per- haps they should call the Respondent's main office in Charleston and speak to James Doss, personnel director George agreed and the three returned to George's office where George handed Isaacs the phone and told him to call When Isaacs told George he did not have the number, George dialed a telephone number and spoke to James Doss After introducing himself to Doss, George said that he had a couple of guys from the Union who wanted to talk to his people in the store on his time After several minutes of silence on George's end, he handed the telephone to Isaacs Isaacs, speaking to Doss, informed him that Best and he had come to the facility simply to introduce Best to the employees, that the Union had no intention or desire to disrupt the work force in any manner, and that the introductions would probably take less than 1 minute per employee After Isaacs explained his purpose, Doss asked to have the phone re- turned to George After an apparent conversation between George and Isaacs,2 George told Isaacs and Best to leave Isaacs and Best left the store room area followed by George who was approxi- mately 2 to 3 feet behind them As they went through the store, they introduced themselves to various employees In each instance, George imme diately ordered the employees to do various tasks After approximately 7 or 8 minutes, Best and Isaacs left the store George followed them to the store's entrance 7 About January 26, 1984, at approximately 6 30 p in , Gary Best and Local 23 Business Agent Jack Lewis went to the Respondent's Wheeling, West Virginia facility They saw Union Steward Linda Bell, who was working the front register, and asked her when she was going on her break so they could discuss with her various health and wel- fare forms for Bell to distribute to the employees The store manager was not present She told them that she would be on her break in about 10 min- utes Assistant Store Manager Mike Savarino was present in the front of the store when Lewis and Best entered Lewis and Best introduced them selves to Savarino and asked him if they could speak to Bell when she went on break Savanno made no comment or response Approximately 5 minutes after Lewis and Best spoke to Savanno, Bell started on her break As she left the register 2 It appears from the context that this reference to Isaacs in the stipu laced facts is erroneous and that this apparent conversation was be tween George and Doss on the telephone and walked back to the break room, Lewis and Best started to follow her Savarino stopped Lewis and Best from following Bell to the rear of the store At the point when Lewis and Best were stopped, they were approximately 20 feet from the front registers Savarino asked where they were going Best said they were going to the break room to speak with Bell Savarino stated, "You're not al lowed to talk to her [Bell] in the store, you'll have to go outside " Best stated that he felt he had a right to be in the store in light of the parties' collective-bargaining agreement Lewis and Best continued to walk toward the break room When Lewis and Best ar rived in the break room, Bell was present As the three of them began to speak, Savarino walked into the break room He told both Lewis and Best that they had to leave, that "you're not allowed in the break room " Savarino added that he would call the police if Lewis and Best both did not leave im- mediately Lewis and Best both told him to "go ahead, if he felt he had to " Savarino repeated sev era] times that both Best and Lewis had no right to be there and that they had to leave Best and Lewis both responded that they had a contractual right to be present in the store and if Savarino felt he had to call the police, he should do so The par- ties' conversation lasted approximately 5 minutes, at which point Best and Lewis then proceeded to speak to Bell with respect to the health and wel- fare forms Savarino continued to stand in the break room Best turned to Savarino and asked him to leave Savarino said, "I'm permitted back here, but you are not " Best continued to talk to Bell, and Savarino remained in the break room After a couple of minutes, Best told Bell to return to the sales floor, and she did Lewis and Best remained for several minutes, then left the break room and walked through the storeroom area and out onto the selling floor Savarino followed them, remain ing approximately a foot or two away Bell re turned to her register and began work as her break was over Best and Lewis went past the registers and stopped near the front exit of the store Best then said to Savarino that the Union had a contract and that he felt it was their contractual right to visit the store and to speak to employees Savanno made no response Lewis and Best then walked through the store aisles, followed closely by Savar- ino The approximately seven employees working in the store that evening observed Savarino follow- ing Best and Lewis through the store, stopping Lewis and Best initially from going into the break room, and following them into the break room Best and Lewis then left the store and waited until its closing, about 9 p in, to meet with Bell 1114 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 9 Article III of the parties' collective bargaining agreement, entitled Dispute Procedure," provides, inter alia A The Union shall have the right to desig- nate one store steward per store and shall submit in writing to the Store Manager the name of such employee within ten (10) work- ing days of his official designation by the Union The store steward shall be selected from the ranks of full-time employees and shall have storewide super seniority for the purpose of layoff and recall The steward shall receive one (1) day off each year, with pay by the Employer, to attend the Local Union Stew ards' Seminar B The Manager of the store and/or compa- ny shall grant to any accredited Union Official access to the store for the purpose of satisfying themselves that the terms of this Agreement are being complied with The Company shall make available to Union representative a list of the time records, schedules and the employee's personnel file, excluding confidential medical matters C Should any difference, disputes, griev- ances or complaints arise over the interpreta- tion or application of the contents of the Agreement, there shall be an earnest effort on the part of both parties to settle such prompt ly, through the following steps [the contract then describes a four-step grievance resolution procedure, culminating in arbitration ] No grievance has been filed by the Union con cerning the Respondent's refusal to allow it to speak to employees covered by it on the Respond- ent's premises at any time or any place The Re- spondent initially indicated it was unwilling to waive any time limits within the grievance proce- dure should the Union decide to initiate a griev- ance with respect to the above matters and others, as discussed infra Subsequent to the issuance of the complaints, and the consolidated amended com plaint, the Respondent has taken the position that the parties' collective bargaining agreement, which was in effect at all times material , provides for the settlement of all disputes through its grievance and arbitration procedure in article III, and that the Respondent is willing and able to resolve all the disputes discussed in this stipulation through the grievance and arbitration procedure 9 On December 30, 1983 , the Respondent issued a booklet entitled "AN INFORMATION GUIDE FOR OUR ASSOCIATES" to all its employees at all its facilities, both unionized and nonunionized The Respondent did not bargain with the Union concerning the implementation of the booklet at its the parties stipulation substitutes the term employees unionized facilities Since about December 30, 1983, the Respondent has maintained in effect, at all of its locations, all the provisions contained in the booklet Local 23 informed the Respondent in writing on February 14, 1984, and orally (by Gary Best) on February 16, 1984, that it objected to the unilateral implementation of the booklet The book- let contains, inter alia, the following provisions i Wages The wage paid each Employee3 is consid- ered confidential information Therefore your company requests you regard your wage as confidential and do not discuss your salary ar- rangements with any other Employee ii Union Policy As a Company, we recognize the right of each individual Employee, their freedom of choice, their individuality and their needs as a worker and a fellow human being For these reasons and others, we do not want any of our Employees to be represented by a Union All members of Heck's management believe in an open line of communication with our Employees When you thoroughly understand Heck's liberal benefit programs, the desire to assist you in your job progress and willingness to discuss your job-related problems, you surely will agree there is no need for a union or any other paid intermediary to stand be tween you and your company in Associate Relations There are times in any organization when friction may occur between an Employee and a supervisor While those in a supervisory po- sition are charged with the responsibility of operating the store, the company realizes there may be an occasion when an Employee feels he/she has a legitimate grievance For this reason, we have at the Employee's disposal form G-100 In an event an Employee feels he/she has a legitimate grievance, the Employee is encouraged to report the griev ance to the store manager The G-100 form may be obtained from the Employee lounge The [Respondent] reserves the right to make changes in the handbook's guidelines or their application as it deems appropriate The last page of the handbook is a perforated page entitled "Receipt for Associate Handbook," which is placed in the employee's personnel file This perforated page, which all the Respondent's 9 The booklet itself refers to employees as associates throughout but HECK S INC 1115 employees are requested to sign and date, contains the following statement I have received my copy of the Associate Handbook I agree to read and keep my hand- book for future reference and observe and be bound by present and future company person- nel policies and rules outlined in this manual I further understand that this handbook is in tended as a guide for personnel policies, bene- fits and general information and that these guidelines should not be construed as a con- tract I understand the company reserves the right to make changes in the guidelines or their ap plication as it deems appropriate 10 The Respondent, in the handbook described above in paragraph 9, reserves the right to make changes in the handbook without prior notice to the Union and without having to afford it as exclu- sive bargaining representative an opportunity to ne- gotiate and bargain over any changes 11 The Respondent established the grievance procedure as described above in paragraph 9(111) in addition to, and inconsistent with, the "dispute" procedure set forth in article III of the collective- bargaining agreement in effect between the Re- spondent and the Union 12 The grievance procedure described above in paragraph 9(iii) does not refer to, or provide the Union an opportunity to participate in, the griev ance procedure The parties stipulated that the Respondent en- gaged in the acts and conduct described above in paragraph 9 without prior notice to the Union and without having afforded the Union an opportunity to negotiate and bargain as the exclusive represent- ative of the Respondents employees with respect to such acts and conduct and the effects of such acts and conduct The parties also stipulated that by the acts and conduct described above in paragraphs 6 and 7, the Respondent engaged in surveillance of its employ ees' union activities and denied Gary Best, Jerry Isaacs, and Jack Lewis access to its Wheeling facil- ity premises B Contentions of the Parties The General Counsel contends that the Respond- ent's denial of access to the Union at its Wheeling facility about October 28, 1983, and January 26, 1984, constituted conduct violative of Section 8(a)(1) and (5) of the Act In this regard, the Gen- eral Counsel asserts that the Union's reasons for seeking access to the Wheeling facility were for the purposes of administering its collective-bargaining agreement with the Respondent, and that the Union's actions were in accordance with the proce- dures set forth in the collective-bargaining agree- ment The General Counsel additionally asserts that the Respondent's denial of access to the union representatives at its Wheeling facility constituted the imposition of a new condition, about which the Respondent had not bargained with the Union, re sulting in a substantial change in the parties' past practice under the collective-bargaining agreement The General Counsel also contends that the Re spondent's surveillance of its employees' union ac tivities at the Respondent's Wheeling facility about October 28, 1983, and January 26, 1984, constituted conduct violative of Section 8(a)(1) of the Act Additionally, the General Counsel alleges that the Respondent's unilateral implementation of its "INFORMATION GUIDE FOR ASSOCIATES" constituted conduct violative of Section 8(a)(1) and (5) of the Act at the Respondent's unionized Wheeling facility, inasmuch as the employee hand- book in question promulgated and put into effect rules and regulations affecting terms and conditions of employment, without affording the Union an op- portunity to bargain about these matters Further- more, the General Counsel contends that the Re spondent violated Section 8(a)(1) of the Act at both its unionized Wheeling facility and nonunion- ized Nitro facility by requesting employees to sign a statement expressly agreeing to observe and be bound by present and future company policies and rules outlined in the employee handbook, including the Respondent's "Union Policy" that it does not want any of its employees to be represented by a union, and that there is no need for a union or any other paid intermediary to `stand between" the employees and the Respondent The General Counsel further asserts that the Respondent's pro- mulgation of its Union Policy," even in the ab- sence of a request that employees subscribe to it by signing their name, constitutes conduct violative of Section 8(a)(1) at both the unionized Wheeling fa- cility and the nonunionized Nitro facility 4 The General Counsel also contends that the As- sociate Relations" section in the employee hand- book is tantamount to a grievance procedure sepa rate and distinct from the grievance procedure set forth in the collective-bargaining agreement, that it was unilaterally implemented, that it precludes par ticipation by the Union, and that it was designed to 4 In addition to contending that the Respondents conduct in these latter two instances violates Sec 8 (a)(1) at both facilities the General Counsel also contends that in both instances it violates Sec 8(a)(5) at the Wheeling facility because it has a tendency to undermine the status of the Union as the designated collective bargaining agent for the employees at that facility 1116 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD undermine the status of the Union as the collective- bargaining representative at the Wheeling facility, in violation of Section 8(a)(1) and (5) of the Act Additionally, the General Counsel argues that the Respondents reservation, in the employee handbook, of "the right to make changes in the guidelines or their application as appropriate" is an expression of the Respondent's belief that it alone may, without consultation with the Union, change the policies in the booklet (some of which cover mandatory subjects of bargaining and subjects cov- ered in the parties' collective-bargaining agree- ment), and that this conduct constitutes, in the General Counsel's view, "a rejection of the funda mental principles of good faith collective bargain ing," in violation of Section 8(a)(1) and (5) of the Act at the unionized Wheeling facility Finally, the General Counsel alleges that the Re spondent's request (in the employee handbook) that employees not discuss their wages with each other, constitutes a violation of Section 8(a)(1) at both the unionized and nonunionized locations involved in this case, and also a violation of Section 8(a)(5) at the unionized location The Respondent contends that the provisions in the collective bargaining agreement that permit union officials to have access to the Respondent's facilities for the purpose of satisfying themselves that the terms of the collective-bargaining agree ment are being complied with do not grant union officials "the right to wander around the store and introduce new business agents to the employees or to take up employees' time other than to satisfy themselves that the terms of the Agreement are being complied with The Respondent takes the position that the dispute over denial of access should have been submitted to the grievance proce- dure set forth in the collective bargaining agree ment, rather than made the subject of an unfair labor practice allegation The Respondent asserts that the dispute over the instant denial of access to union officials involves a question of interpretation of the scope of the access provision in the collec tive-bargaining agreement, and that the Board should therefore defer consideration of this dispute to the gnevance-arbitration provisions of the col lective-bargaining agreement The Respondent also contends that the question of whether employees would reasonably construe employee handbook provisions stating that the Re- spondent does not want a union, in conjunction with the request that the employees themselves do not want a union, is an issue that should be de- ferred to the contractual grievance and arbitration procedure In response, the General Counsel argues that de ferral here is inappropriate, because it would not resolve the alleged unfair labor practices at the nonunionized Nitro facility, inasmuch as the unfair labor practice allegations involving the employee handbook involve both the Wheeling and Nitro fa- cilities Additionally, the General Counsel argues that the handbook allegations are not severable from the denial of access allegations and that all the unfair labor practice allegations in the instant case must be resolved in the instant proceeding The General Counsel also contends that the hand- book provisions alleged to be violative of the Act, together with the Respondent's acts of surveillance and denial of access to union representatives, con stitute "a rejection of the fundamental principles of good faith bargaining and demonstrates Respond ent's attempts to undermine the Union " Accord- ingly, the General Counsel asserts that deferral is not appropriate under the standard set forth in United Technologies Corp, 268 NLRB 557, 560 (1984) (the Board will not defer when the respond- ent's conduct constitutes a rejection of the princi ples of collective bargaining) C Discussion 1 Deferral The consolidated amended complaint alleges that certain conduct of the Respondent was unlawful at both of the Respondent's facilities involved in this case its unionized retail store in Wheeling and its nonunionized warehouse in Nitro Thus, only some of the issues before us could be deferred to the contractual "Dispute Procedure" in effect at the Wheeling location Because we must determine at least a part of the instant dispute, there is no com- pelling reason for deferring other aspects of the dispute to the grievance arbitration machinery at Wheeling, and we decline to do so See S Q I Roofing, 271 NLRB 1 fn 3 (1984) Sheet Metal Workers Local 17 (George Koch Sons), 199 NLRB 166, 168 (1972), enfd mem 85 LRRM 2548 (1st Cir 1973) 5 2 Denial of access The Respondent has stipulated that, by the con- duct of Wheeling Store Manager Joseph George and Assistant Store Manager Mike Savarino about October 28, 1983, and January 26, 1984, respective ly, the Respondent denied the union representatives access to the Respondent's Wheeling facility 5 Member Cracraft would defer the access allegations to the parties grievance arbitration process However she agrees with her colleagues that the handbook promulgation allegations should not be deferred to ar bitration HECK S INC We note at the outset that the instant collective- bargaining agreement provides that accredited union officials shall be granted access to the store for the purpose of satisfying themselves that the terms of the agreement are being complied with The Union sought access to the Wheeling facility for the purposes of introducing a new union repre sentative to the employees, and discussing with the union steward various health and welfare forms that the steward would in turn provide to the em- ployees These purposes are clearly consistent with the contractual provision granting the Union access to the Respondent's facilities-to monitor ongoing compliance with the collective-bargaining agree ment The collective-bargaining agreement re- quires, for example, that employees become mem- bers of the Union 31 days after starting work and that the Employer provide the Union with a list of new employees each month It also provides for employer contributions to a health and welfare plan for employees The introduction of the new union representative to the employees and the dis- cussion of health and welfare claim forms with the steward have clear relevance to the Union's ability to determine whether the Respondent is complying with these contractual provisions Further, there is no evidence that compliance with the access provision would have disrupted or impeded Respondent's operations On both occa- sions in question, the union representatives made their presence known to the store manager or his assistant, and asked for permission to conduct the above-described business In the first instance, when the union representatives were denied per- mission to briefly introduce the new representative to the employees, there were no customers in the store and at least some of the employees were al ready assembled in the break room On the second occasion, when the union representatives were denied permission to discuss health and welfare forms with the union steward, the union represent- atives had waited until the steward was on her breaktime, in the break room, before beginning their discussion with her 6 In neither instance did the Respondent's officials deny access on the grounds that the stated purposes for the visits were beyond the scope of the access provision Instead, the Respondent's managers ignored the existence of an access provision despite the Union's express in- vocation of it and told the union representatives that they were not permitted to speak to any em- 8 Thus in finding that the purposes and conduct of the union repre sentatives in visiting the store were in accord with the instant contractual access provision we do not suggest that the provision grants union repre sentatives permission to circulate through a facility (or as the Respond ent fears wander around the store ) in a way that interferes with the conduct of the Respondent s business 1117 ployees within the store, including employees on their breaktime in the break room They also indi- cated that if the agents wanted to speak to the em- ployees or the union steward, they could do so only "outside the store " In these circumstances, we find that the Union properly requested reasonable access to the Re- spondent's facility in accordance with the express provision of the collective bargaining agreement and that the Respondent has violated the Act as al- leged by refusing to grant that access to its Wheel ing store 7 3 Surveillance The Respondent has stipulated that, by the con- duct of Wheeling Store Manager George and As- sistant Store Manager Savarino, during the denials of access described above, the Respondent engaged in surveillance of its employees' union activities In its brief, the Respondent does not dispute the alle- gation that this surveillance of employee union ac tivity was unlawful 8 In the October incident, the union representa- tives were denied permission to introduce the new representative to the employees in the store As the union representatives were leaving the store, greet ing employees on their way out, they were fol- lowed very closely-about 2 or 3 feet behind-by Store Manager George In the January 1984 incident, the union repre- sentatives were denied permission to discuss health and welfare procedures with the union steward in the store As the union representatives attempted to discuss these matters with the union steward on her breaktime, in the break room, Assistant Store Man- ager Savanno stationed himself in the break room, repeatedly told the union representatives that they had no right to be in the store, that they would have to leave immediately, and that he would call the police if they did not do so After the union representatives refused to leave, and as they contin- ued to attempt to discuss health and welfare mat- ters with the union steward, Savarino continued to stand in the break room After a few more minutes, the union representatives discontinued their discus- sion with the steward, and began to leave the store Savarino followed closely behind them-about 1 or 2 feet away-until they left the store 7 See Parknew Furniture Mfg Co 284 NLRB 947 fn 2 and cases cited therein (July 13 1987) see also Campo Slacks 250 NLRB 420 429 (1980) enfd mem 659 F 2d 1069 (3d Cir 1981) 8 The Respondents brief addresses only the questions of whether the allegedly unlawful denial of access and certain allegedly unlawful provi sions in the employee handbook should be deferred to the contractual grievance arbitration procedure 1118 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD In both instances, therefore, the Respondent en- gaged in extraordinarily close, pronounced, and (under the circumstances) unjustified scrutiny of its employees in their attempts to speak with their union representatives, who, as found above, were properly in the Respondent's store on legitimate union business 9 We find that the Respondent's conduct in this regard had a tendency to interfere with and restrain its employees in the exercise of their rights under Section 7 of the Act, and thus constitutes unlawful surveillance of employee union activity in violation of Section 8(a)(1) of the Act 10 4 Unilateral issuance of and reservation of the right to make changes in the "INFORMATION GUIDE FOR ASSOCIATES" On December 30, 1983, the Respondent issued a booklet entitled "AN INFORMATION GUIDE FOR OUR ASSOCIATES" 1 I to all of its employ- ees, including those at the Wheeling (unionized) and Nitro (nonunionized) facilities involved in the instant case The Respondent has stipulated that it issued the handbook, and thereafter maintained it in effect, without giving the Union prior notice or op- portunity to bargain about it Moreover, the Re- spondent expressly reserves the right to make changes in the handbook without giving the Union prior notice or opportunity to bargain about such changes Also, all employees are requested to sign a statement, which is to be retained in their person- nel file, acknowledging their receipt of the hand- book, and agreeing to obey and be bound by the present and future personnel policies and rules con- tained in the handbook In its brief, the Respondent does not dispute the allegations that the unilateral issuance of, and the reservation of the right to make unilateral changes in, the employee handbook constitutes unlawful ac- tivity at the Wheeling facility The "INFORMATION GUIDE FOR OUR ASSOCIATES" contains information, policies, 9 The stipulated facts pertaining to these allegations show that as George closely followed the union representatives as they greeted em ployees on their way out of the store he would approach each employee being greeted and order him or her to do various tasks In finding that George engaged in unjustified scrutiny we do not rely on his issuance of such orders to the employees Thus we do not imply that employers are generally prohibited from directing their employees to return to work during the course of an inplant visit by union representatives 10 Gainesville Mfg Co 271 NLRB 1186 118 (1984) American Thread Co 270 NLRB 526 529 ( 1984) See also Reeves Southeastern Corp 256 NLRB 574 578 (1981) cf Carter Hawley Hale Stores 267 NLRB 385 400-401 (1983) (employers close observation of union organizers while on selling floor is not unlawful surveillance when the employer permitted the union organizers to freely enter the store and to engage in a wide range of organizational activity in employee rest and break areas of the store) 11 The Respondent refers to its employees in this context as associ ates procedures, and rules on many matters that are also contained in the collective-bargaining agreement 12 Although the handbook provisions are generally consistent with the contract provisions, there are some discrepancies between them For example, the employee handbook states that newly hired em ployees will be on probation for 90 days, the col- lective-bargaining agreement establishes only a 30- day probationary period, which can be extended by the Respondent for an additional maximum 30 days The Respondent issued this handbook without notifying or negotiating with the Union about its contents Moreover, the Respondent purports to re- serve the right to make future unilateral changes in the provisions of the handbook, including those that are mandatory subjects of bargaining We find that the Respondent's conduct in this regard dis- parages the collective bargaining process and im- properly undermines the status of the Union as the designated and recognized collective bargaining representative of the Wheeling employees Accord ingly, we conclude that the Respondent has violat ed Section 8(a)(5) and (1) of the Act as alleged See Harvard Folding Box Co, 273 NLRB 1031, 1035- 1036 (1984), Holland American Wafer Co, 260 NLRB 267, 273-274 (1982), Woodland Supermarket, 237 NLRB 1481, 1488 (1978), Boland Marine & Mfg Co, 225 NLRB 824 (1976), affd mem 562 F 2d 1259 (5th Cir 1977) 5 Bypassing the contractual grievance procedure The collective-bargaining agreement between the parties contains a detailed grievance arbitration procedure Step I requires a conference between the aggrieved employee or employees, the store manager, and the union steward, the employee or the steward has the option of requesting that the union business representative also be present at this first-step grievance conference By contrast, the "INFORMATION GUIDE FOR OUR ASSOCIATES" (with which employ- ees are requested to promise in writing to abide) "encourages" employees who feel that they have "legitimate" grievances to report such grievances in writing directly to the store manager There is no provision in the handbook for notifying the Union that an employee has filed a grievance under the above handbook provisions, nor is there a pro- vision for participation by the Union steward at 12 For example employee classification seniority probationary period smocks/uniforms hours of work rest and meal periods vacations holi days funeral leave insurance dispute resolution ( associate relations in the handbook) leaves of absence and union security/ union policy are all subjects covered by the handbook HECK S, INC 1119 this initial step in grievance processing-provisions expressly included in the parties' collective bar- gaining agreement On the contrary, in the section of the "INFORMATION GUIDE" immediately following the section encouraging employees to file their grievances directly with the store manager, the employees are assured that when "you thor oughly understand the [Respondent's] willing- ness to discuss your job-related problems, you surely will agree there is no need for a union " In its brief, the Respondent does not dispute the allegation that, by the above conduct, it has unilat- erally established a grievance procedure in the em- ployee handbook that is inconsistent with the grievance procedure established in the parties' col- lective-bargaining agreement, and that in so doing it has failed to comply with Section 9(a) of the Act and has violated Section 8(a)(5) and (1) of the Act We find that the Respondent has violated the Act as alleged in this regard The employee hand- book provisions discussed above have a reasonable tendency to induce employees to reject or avoid the contractually agreed on grievance-arbitration procedure involving full union participation, and to use instead the Respondent's unilaterally estab- lished grievance procedure set forth in the employ- ee handbook, which does not provide for union participation Thus, the Respondent's conduct in this regard circumvents the express provisions of the collective-bargaining agreement and under mines the role of the Union as the designated and recognized collective-bargaining representative of the Wheeling employees, in violation of Section 8(a)(5) and (1) of the Act 13 6 Prohibiting discussion of wages The employee handbook requests employees not to discuss their wages with each other In its brief, the Respondent does not assert any business justifi cation for prohibiting its employees from discussing their wages with each other This prohibition con stitutes a clear restraint on the employees' Section 7 right to engage in concerted activities for mutual aid and protection concerning an undeniably signif- icant term of employment Because the Respondent has failed to establish any business justification for this restraint, we find that it has acted unlawfully in violation of Section 8(a)(1) of the Act in impos- 1 s See Harvard Folding Box Co supra see generally Meilman Food 234 NLRB 698 707-709 (1978) affd mem sub nom Meat Cutters Local 304 (Meilman Food) Y NLRB 593 F 2d 1370 (D C Cir 1979) Steelwork ers (Dow Chemical) v NLRB 536 F 2d 550 (3d Cir 1976) cf Leland Stanford Jr University 240 NLRB 1138 fn 1 (1979) (opinion survey solic iting grievances from represented employees not unlawful when employ er expressly notified employees that it had no intention of bargaining di rectly with employees and that it fully recognized legal rights of union as employees collective bargaining representative) ing it Scientific-Atlanta Inc, 278 NLRB 622, 625 (1986), Waco, Inc, 273 NLRB 746 (1984) The General Counsel also alleges that the institution of this rule violated Section 8(a)(5) at the Wheeling facility because implementation of the rule under- mined the status of the Union Because the remedy would not be affected by such a finding, we do not find it necessary to pass on this allegation 7 Antiunion handbook provision The "INFORMATION GUIDE FOR ASSOCI- ATES" provides Union Policy As a Company, we recognize the right of each individual Employee, their freedom of choice, their individuality and their needs as a worker and a fellow human being For these reasons and others, we do not want any of our Employees to be represented by a Union All members of Heck's management believe in an open line of communications with our Employees When you thoroughly understand Heck's liberal benefit programs, the desire to assist you in your job progress and willingness to discuss your job-related problems, you surely will agree there is no need for a union or any other paid intermediary to stand be tween you and your company The last page of the handbook is a perforated page containing the following Receipt for Associate Handbook I have received my copy of the Associate Handbook I agree to read and keep my hand- book for future reference and observe and be bound by present and future company person- nel policies and rules outlined in this manual I further understand that this handbook is in tended as a guide for personnel policies, bene- fits and general information and that these guidelines should not be construed as a con- tract I understand the company reserves the right to make changes in the guidelines or their ap- plication as it deems appropriate Signed Date Department Store Number Upon completion, this sheet will be placed in the Associates Personnel File [emphasis in origi- nal] All employees are requested to sign and date this statement The employee handbook also has a sec- tion entitled "Rules and Discipline Procedures " 1120 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Rule 17 provides that an employee who fails to follow company policies is subject to a written warning or a 3 day suspension for the first viola tion A second violation subjects the employee to a 1 week suspension A third breach of this rule is grounds for discharge In essence, employees are "requested" to prom ise in writing to be bound by, inter alia, the Re spondent's antiunion policy, these written promises are made a matter of record in the employees' per sonnel files, and employees could reasonably assume that they are subject to discipline culminat ing in discharge for violating the Respondent's an- tiunion policy We find that the Respondent's con duct in this regard has an inherent and direct tend ency to interfere with, restrain, and coerce employ- ees in the exercise of their rights under Section 7 of the Act to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other con certed activities for the purpose of collective bar gaining or other mutual aid or protection The Re spondent has effectively asked its employees to promise in writing not to engage in any of these protected Section 7 activities, and has warned them that they will be disciplined if they do so We con clude that the Respondent has violated Section 8(a)(1) of the Act 14 In finding a violation of the Act under these cir- cumstances, we emphasize that the Respondent acted unlawfully not in publishing its antiunion policy in the employee handbook, but rather in re- questing that its employees promise in writing to be bound by that policy Accordingly, we dismiss the General Counsel's allegation that the Respondent acted unlawfully by promulgating and maintaining its union policy as set forth in the handbook 15 The violation that we find here is based on the promise to adhere to the policy extracted from the employ ees in writing, for inclusion in their personnel files, '4 LaQuinta Motor Inns 293 NLRB 57 (1989) See also Pandair Freight 253 NLRB 973 976 980 (1980) (solicitation of organizational rights) Ohio Valley Graphic Arts 234 NLRB 493 500 (1978) (solicitation of writ ten expressions of lack of need for and opposition to union) Skyline Transport 228 NLRB 352 354 ( 1977) (solicitation of written commitment not to join union) Rabco Metal Products 221 NLRB 1230 1233-1234 (1975) enfd 580 F 2d 169 (9th Cir 1977) (solicitation of written expres sions of full satisfaction with existing conditions of employment and desire not to be represented by labor organizational) Galion Nursing Home 220 NLRB 1333 1336 (1975) enfd in pertinent part 550 F 2d 1060 (6th Cir 1977) (same as Rabco supra) Guyon Valley Hospital 198 NLRB 107 110-111 (1972) (solicitation of written affrimation of full support for employer and written expression of opinion that problems could be re solves without help from outsiders ) 15 Thus Nickey Chevrolet Sales 142 NLRB 23 (1963) is overruled to the extent that it holds that when employees are currently represented by a collective bargaining representative their employer is not permitted to advise them of its opposition to their representation or to unionization generally and under the threat of discipline (including dis- charge) for noncompliance With particular regard to the Respondent s unionized Wheeling facility, we find that the Re spondent's inducement of employees to promise in writing to abide by the Respondent's antiunion policy tends to undermine the status of the Union as the designated and recognized collective-bar- gaining representative of the Wheeling employees, in derogation of the Respondents obligation to bar- gain in good faith with the Union Accordingly, we find that the Respondent's conduct in this regard at the Wheeling facility is violative of Sec- tion 8(a)(5) and (1) of the Act CONCLUSIONS OF LAW 1 The Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 Local 23 and Local 1059 are labor organiza- tions within the meaning of Section 2(5) of the Act 3 The following employees of the Respondent constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act All full time and part time selling and non-sell ing employees employed by the Employer in the following stores (Local 1059) Store #5, Ashland, Kentucky, Store #13, Russell, KY, Store #21, Athens, Ohio, Store #25, Circle ville, Ohio, Store #31, Marietta, Ohio, (Local 1407) Store #8, Wheeling West Virginia Store #12, Point Pleasant, West Virginia, and Store #48, Prestonburg, Kentucky, but exclud- ing the store manager, assistant store manager, department heads, casual employees, one (1) confidential employee per store, and all profes sional employees, guards and supervisory em- ployees as defined in the Act 4 At all times material, Local 23 has been the designated and recognized exclusive collective-bar gaining representative of the employees in the above unit employed at the Respondent's Wheel ing, West Virginia facility 5 By denying Local 23's designated collective bargaining agents access to the Wheeling facility in October 1983 and January 1984, for the purposes of introducing a new union representative to the employees and discussing health and welfare proce- dures with the union steward, which purposes are relevant to Local 23's discharge of its bargaining obligation, by unilaterally issuing to its Wheeling employees, and thereafter maintaining in effect at its Wheeling facility the employee handbook enti HECK S INC tied "AN INFORMATION GUIDE FOR OUR ASSOCIATES," without providing the Union with notice of or opportunity to bargain about the issuance and subsequent maintenance of the em- ployee handbook, by encouraging employees at the Wheeling facility to report grievances directly to the store manager, and by purportedly reserving the right at the Wheeling facility to make changes in the "INFORMATION GUIDE" as the Re spondent deems appropriate, the Respondent has refused to bargain in good faith, in violation of Section 8(a)(5) and (1) of the Act 6 By engaging in surveillance of its Wheeling employees' union activities and by maintaining a policy requesting its Wheeling and Nitro employ- ees not to discuss their wages with other employ- ees, the Respondent has interfered with, restrained, and coerced its employees in the exercise of their rights under Section 7 of the Act, and has there fore violated Section 8(a)(1) of the Act 7 By requesting its Wheeling and Nitro employ- ees to promise to be bound by the Respondent's written policy that it does not want its employees to be represented by a union and that there is no need for a union or other paid intermediary to stand between the employees and the Company, the Respondent has undermined the status of the Union as the designated and recognized exclusive collective bargaining representative of the Wheel ing employees, in violation of Section 8(a)(5) of the Act, and has interfered with, restrained, and co erced the Wheeling and Nitro employees in the ex- ercise of their rights under Section 7 of the Act, in violation of Section 8(a)(1) of the Act 8 The above violations of the Act are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act REMEDY Having found that the Respondent has engaged in unfair labor practices within the meaning of Sec- tion 8(a)(1) and (5) of the Act, we shall order that it cease and desist therefrom, and that it take cer- tain affirmative action to effectuate the policies of the Act Accordingly, we shall order the Respond ent, on request of the Union, to grant designated union representatives reasonable access to the Wheeling facility, in order to introduce new union representatives to the unit employees and to discuss health and welfare procedures with the union stew and At the Wheeling facility, we shall require the Respondent to rescind in its entirety its "INFOR MATION GUIDE FOR OUR ASSOCIATES " At the Nitro facility, we shall require the Respond ent to rescind that portion of the 'INFORMA- TION GUIDE" requesting employees not to dis- 1121 cuss their wages with other employees Also, we shall order the Respondent to rescind its policy re questing employees to promise to be bound by present and future policies of the Respondent that it does not want its employees to be represented by a union and that there is no need for a union or any other paid intermediary to stand between the employees and the Respondent Finally, we shall require the Respondent to remove from its files any statements signed by Wheeling or Nitro employees in which they agreed to be bound by the Respond ent's policies contained in the "INFORMATION GUIDE FOR OUR ASSOCIATES" involved in the instant proceeding ORDER The National Labor Relations Board orders that the Respondent, Heck's Inc, Wheeling and Nitro, West Virginia, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Refusing to bargain in good faith with Local 23, United Food and Commercial Workers Union, AFL-CIO-CLC by denying the Union's designat ed representatives reasonable access to the Re- spondent's Wheeling facility for the purposes of in troducing a new union representative to the unit employees and discussing health and welfare proce- dures with the union steward (b) Unilaterally issuing to its Wheeling employ- ees, and thereafter maintaining in effect at its Wheeling facility, the employee handbook entitled "AN INFORMATION GUIDE FOR OUR AS SOCIATES," without providing the Union with notice of and an opportunity to bargain about the issuance and subsequent maintenance of such an employee handbook (c) Encouraging employees at the Wheeling fa cility to report grievances directly to the store manager (d) Purportedly reserving the right at the Wheel- ing facility to make changes in the INFORMA TION GUIDE" provisions as the Respondent deems appropriate (e) Engaging in surveillance of its employees' union activities (f) Maintaining a policy requesting employees not to discuss their wages with other employees (g) Disseminating to its Wheeling employees its written policy that it does not want its employees to be represented by a union and that there is no the Company, and requesting that its Wheeling and Nitro employees promise to be bound by that policy (h) In any like or related manner interfering with, restraining, or coercing employees in the ex- 1122 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ercise of the rights guaranteed them in Section 7 of the National Labor Relations Act 2 Take the following affirmative action neces sary to effectuate the policies of the Act (a) On request of the Union, grant the Union's designated representatives reasonable access to the Respondent's Wheeling facility for the purposes of introducing a new union representative to the unit employees and discussing health and welfare proce dures with the union steward (b) At the Wheeling facility rescind in its entire ty the "INFORMATION GUIDE FOR OUR AS SOCIATES " (c) At the Nitro facility rescind the portion of the "INFORMATION GUIDE" requesting em ployees not to discuss their wages with other em- ployees (d) Rescind its policy requesting employees to promise to be bound by present and future policies of the Respondent that it does not want its employ- ees to be represented by a union and that there is no need for a union or any other paid intermediary to stand between the employees and the Respond ent (e) Remove from its files any statements signed by employees in which they agree to observe and be bound by present and future company personnel policies and rules outlined in the Respondent's "INFORMATION GUIDE FOR OUR ASSOCI ATES," and notify these employees that it has done so (f) Post at its facilities in Wheeling and Nitro, West Virginia, copies of the attached notice marked "Appendix 1116 Copies of the notice, on forms provided by the Regional Director for Region 6, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and main tained for 60 consecutive days in conspicuous places including all places where notices to em ployees 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 material (g) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply 16 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 APPENDIX 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 ordered us to post and abide by this notice Section 7 of the Act gives employees these rights To organize To form, join, or assist any union To bargain collectively through representa tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities WE WILL NOT refuse to bargain in good faith with Local 23, United Food and Commercial Workers Union, AFL-CIO-CLC by denying the Union's designated representatives reasonable access to our Wheeling facility for the purposes of introducing a new union representative to the unit employees and discussing health and welfare proce- dures with the union steward, by unilaterally issu- ing to our Wheeling employees and thereafter maintaining in effect at our Wheeling facility the employee handbook entitled "AN INFORMA TION GUIDE FOR OUR ASSOCIATES," with- out providing the Union with notice of and an op portunity to bargain about the issuance and subse- quent maintenance of such an employee handbook, by encouraging employees at our Wheeling facility to report grievances directly to the store manager, and by attempting to reserve the right at our Wheeling facility to make changes in the "INFOR- MATION GUIDE" provisions as we deem appro- priate WE WILL NOT engage in surveillance of your union activities WE WILL NOT request you not to discuss your wages with other employees WE WILL NOT request you to promise to be bound by our policy against union representation WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer cise of your rights guaranteed in Section 7 of the National Labor Relations Act WE WILL, on request of the Union, grant the Union's designated representatives reasonable access to our Wheeling facility for the purposes of introducing a new union representative to the unit HECK S INC employees and discussing health and welfare proce dures with the union steward WE WILL rescind our "INFORMATION GUIDE FOR OUR ASSOCIATES" at our Wheeling facility WE WILL, at our Nitro facility, rescind the por tion of the "INFORMATION GUIDE," which re quests employees not to discuss their wages with other employees WE WILL rescind our policy requesting you to promise to be bound by our present and future policies against union reprsentation 1123 WE WILL remove from our files any statements signed by employees in which they agree to ob serve and be bound by present and future company personnel policies and rules outlined in the 'IN FORMATION GUIDE FOR OUR ASSOCI- ATES" and WE WILL notify employees who have signed such statements that we have removed them from our files HECK'S, INC