Heck'S Inc.

HECK'S, INC 227 Heck's, Inc. and Food Store Employees Union, Local 347, United Food and Commercial Work- ers International Union, AFL-CIO-CLC. Case 9-CA-20694 21 September 1984 DECISION AND ORDER BY MEMBERS ZIMMERMAN, HUNTER, AND DENNIS On a stipulated record accepted 26 April 1984, Administrative Law Judge Marion C Ladwig issued the attached decision on 14 May 1984 The Respondent filed exceptions 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 has decided to affirm the judge's rulings, findings, and conclusions and to adopt the recommended Order ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Heck's, Inc , Nitro, West Virginia, its officers, agents, succes- sors, and assigns shall take the action set forth in the Order DECISION MARION C LADWIG, Administrative Law Judge Fol- lowing the February 14, 1984 1 trial in Heck's, Inc , Cases 9-CA-20275, 9-CA-20375, and 9-CA-20437, the Union filed the charge in this case February 29 and the General Counsel issued the complaint March 27 The primary issue (and one of the issues in the earlier proceeding in- volving other company facilities) is whether the Compa- ny, the Respondent, unlawfully coerced employees during union organizing activity by stating in its October 10 letter to them that "Heck's has an absolute right to see the union cards" they sign, violating Section 8(a)(1) of the National Labor Relations Act The General Counsel, Company, and Union have signed a Stipulation (submitted April 26 with a motion to accept, which I grant), agreeing to a stipulated record and also agreeing that if the October 10 letter is found to violate Section 8(a)(1), "the remedy and the appropriate notice in the instant case shall be separate and distinct from the remedy and notice, if any" in the earlier cases On the stipulated record, and after consideration of the briefs filed in the earlier proceeding, I make the follow- ing ' All dates are from October 1983 until April 1984 unless otherwise indicated FINDINGS OF FACT I JURISDICTION The Company, a West Virginia corporation, operates retail stores in a nine-state area, annually receiving at its Nitro, West Virginia warehouse goods valued over $50,000 directly from outside the State and deriving over $50,000 in gross revenue The Company admits and I find that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act II ALLEGED UNFAIR LABOR PRACTICES A The October 10 letter About October 10, the Company distributed a letter (attached to the Stipulation as Exh A) to its employees "at various stores throughout its multistate chain" The stores were those where "the Union handbilled or other- wise attempted to organize" in the latter part of 1983 The one-page letter (written in all capitals) was signed by Company Chairman Russell Isaacs The letter op- posed the signing of union cards, stating toward the end "We feel that a union would be of no advantage to any of us and it would hurt the business that we all depend on for our livelihood," and "If anyone should come to you and ask you to sign a union authorization card, we are asking you to refuse to sign it" The middle paragraph of the letter (the capitalization retained in only the last sentence for emphasis) read These cards are often obtained by unions by making false statements or misrepresentations These cards could be used as evidence with the National Labor Relations Board to get into a company without an election The Union is telling you that Heck's will never see the union cards you sign This is Just not true In past cases with this Union we have seen these cards which were shown to us by the NLRB where the Union claims bargaining rights without an election HECK'S HAS AN ABSOLUTE RIGHT TO SEE THE UNION CARDS The Company argues in its brief that when the sen- tence, "Heck's has an absolute right to see the union cards," is "read in the context of the entire paragraph, it is obvious that what Mr Isaacs is saying in that particu- lar sentence is that where the union is demanding bar- gaining rights without an election, Heck's has the right to see the cards" I disagree That is a paraphrase of two preceding sentences, "These cards could be used as evi- dence with the National Labor Relations Board to get into a company without an election" and "In past cases with this Union we have seen these cards which were shown to us by the NLRB where the Union claims bar- gaining rights without an election" It is clearly not the meaning of the last, unequivocal statement, that Heck's "has" the "absolute" right to see the union cards Even if employees could be expected to ignore the clear, plain message in the unqualified statement, "Heck's 272 NLRB No 44 228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD has an absolute right to see the union cards," and to ana- lyze the whole paragraph to derive some limited mean- ing, this added sentence would still place the confiden- tiality of their card signing in jeopardy Thus the compa- ny chairman asserts "The Union is telling you that Heck's will never see the union cards you sign," and makes three responses The first is "This is just not true" The second is that "In past cases with this Union we have seen these cards which were shown to us by the NLRB where the Union claims bargaining rights without an election" Those are complete responses to the pur- ported union contention that the Company "will never see the union cards you sign" But then the chairman adds a third response—without making any reference to the right the Company "had" in past cases to see the cards, or to the right it "would have" if the Union claimed bargaining rights without an election Claiming a present, unqualified right to see the cards, he adds that "Heck's has an absolute right to see the union cards" (emphasis added) B Concluding Findings It is well recognized that employees would be coerced or "chilled" in the exercise of their Section 7 right to sign union authorization cards if they knew that the em- ployer had the absolute right to see the cards In denying an employer access to union authorization cards under the Freedom of Information Act, 5 U S C § 552, the court held in Committee on Masonic Homes, 556 F 2d 214, 221 (3d Cir 1977) [I]t is entirely plausible that employees would be "chilled" when asked to sign a union card if they knew the employer could see who signed To order disclosure here would effectively do away with union cards as they are used now We need only consider whether employees would be likely to sign a prominently displayed notice at work, "Sign up for the union here Organize for better working conditions and higher wages" Solicitation of authorization cards plays a vital role in organiza- tional campaigns, and we cannot envision a work- able substitute Furthermore, union elections must be conducted by secret ballot Whatever reasons and policies lie behind that would be directly undercut by forcing employees to acknowledge in public their support of the union, in order to be given the right to vote in secret for the union After quoting this language in Pacific Molasses Co, 577 F 2d 1172, 1182 (5th Cir 1978), the court observed We agree with the Third Circuit, and feel that the Freedom of Information Act does not compel disclosure of these cards We would be naive to disregard the abuse which could potentially occur if employers and other employees were armed with this information The inevitable result of the availability of this information would be to chill the right of employees to express their favor- able union sentiments Such a chilling effect would undermine the rights guaranteed by the NLRA and, for all intents and purposes, would make meaning- less those provisions which guarantee secrecy in union elections In Madeira Nursing Center, 615 F 2d 728, 730-731 (6th Cm 1980), the court cited Masonic Homes and Pacific Molasses and found Both the 3d and 5th Circuits have held that union authorization cards are not discoverable under the Act When an employee signs an authorization card during the initial phase of union organization, he ex- presses a personal decision to seek the support of a union in future dealings with his employer Since the union organization of a company may take the form of a protracted and bitter struggle over em- ployee loyalties, an employee may be amply justi- fied in wishing to protect his prounion declaration from employer scrutiny Appellant insists that an employee can have no expectation of confidentiality when he signs a card This contention is apparently based on the fact that a union which holds authorizations from the majori- ty of a bargaining unit may bypass the election process by submitting its authorization cards direct- ly to the employer Appellant's argument ignores an important distinction An employee may reasonably feel less vulnerable after he knows his union is likely to prevail than at the outset of an organiza- tion campaign when the ultimate result remains un- certain Indeed, it is in such a case as this one, where the defeated Union may be unable to give the support anticipated by its adherents, that em- ployees who sign authorization cards could be most justified in seeking to preserve their anonymity Several cases involve alleged coercion when an em- ployer refers to this anonymity of card signing being lost when a union seeks recognition without an election In NLRB v Finesilver Mfg Co, 400 F 2d 644, 645-646 (5th Cir 1968), the employer posted a notice, stating that "The union says the signing of cards will be confiden- tial," but the truth is that "Any employee who signs a card for a union may be called upon to testify in open court under a subpoena," and commenting that "The best way to avoid this is to stay away from union meet- ings, and then you can't be forced to sign cards" The court observed that "we see no reason for informing em- ployees that they might be required to testify in open court other than to let them know that the names of union adherents could be ascertained and appropriate re- prisals taken " It held that whether or not this and an- other statement were legally correct, they "have unlaw- fully coercive implications, especially when considered in the context of the company's widespread pattern of antiunion conduct" In Lundy Packing Co, 223 NLRB 139 (1976), enf denied in relevant part 549 F 2d 300, 301 (4th Cir 1977), HECK'S, INC 229 the Board found "there was no reason for informing em- ployees that they might be required to testify in open court other than to let them know that the names of union adherents could be ascertained and appropriate re- prisals taken" Similarly, except this time with court ap- proval, the Board in Arrow Automotive Industries, 256 NLRB 1027, 1033-34 (1981), enfd mem 679 F 2d 875 (4th Cir 1982), adopted the administrative law judge's finding that "Absent any valid reason for repeatedly informing employees that those employees who sign union cards could be required to appear in court to testi- fy about them and occurring in the context of other unfair labor practices," the vice president's statements in letters to employees, in the employer's newspaper, and in a speech "were to discourage employees from signing union authorization cards," violating Section 8(a)(1) In Huntington Rubber Go, 260 NLRB 1008 (1982), the employer's vice president told employees in a meeting that "if the Union obtained signed cards from over 50 percent of the employees, the Union would take the cards out in [his] office and lay them on his desk" The Board adopted the judge's finding that the statement, in the context of several other unfair labor practices, "con- veyed a threat to the employees that the identities of those who signed union cards would be revealed" to the employer, "followed by appropriate reprisals" All four of these decisions involved the loss of confi- dentiality if the union uses the cards to seek bargaining rights without an election In Finesdver, Lundy, and Arrow, the employer's statements about card signers having to appear in court were held to be coercive, and in Huntington, the statement about the union's laying the cards on the employer's desk after obtaining a 50-percent majority was found to be coercive Here, in contrast, the statement that "Heck's has an absolute right to see the union cards" is an unequivocal warning to the employees that they cannot sign union authorization cards in confidence, even if the cards are used merely to show sufficient support for a secret Board election The General Counsel does not allege to be coercive the two statements in the October 10 letter about cards being used "to get into a company without an election" and about the Company seeing the union cards "where the Union claims bargaining rights without an election" I find that this added, last sentence in the quoted para- graph, that the Company "has an absolute right" to see the cards, was intended to discourage employees from signing the union authorization cards by instilling fear of reprisals I therefore find that the statement tends to coerce the employees in the exercise of their Section 7 rights, in violation of Section 8(a)(1) of the Act CONCLUSIONS OF LAW By informing employees that "Heck's has an absolute right to see the union cards" to discourage them from signing union authorization cards by instilling fear of re- prisals, the Company coerced employees in the exercise of their Section 7 rights, engaging in unfair labor prac- tices affecting commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act THE REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, I find it necessary to order it to cease and desist and to post a notice designed to effec- tuate the policies of the Act The notice must be posted at all its stores where the Union handbilled or otherwise attempted to organize in the latter part of 1983 (except the Cross Lanes store, involved in the earlier proceed- ing) On these findings of fact and conclusions of law and on the entire stipulated record, I issue the following rec- ommended2 ORDER The Respondent, Heck's, Inc , Nitro, West Virginia, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Discouraging employees from signing union au- thorization cards by informing them that "Heck's has an absolute right to see the union cards" (b) 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) Post at all its stores indicated in the remedy section of the decision copies of the attached notice marked "Appendix " 3 Copies of the notice, on forms provided by the Regional Director for Region 9, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspic- uous places including all places where notices to employ- ees 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 (b) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply 2 If no exceptions are filed as provided by Sec 102 46 of the Board s Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur poses 3 If this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading Posted by Order of the Na tonal Labor Relations Board" shall read 'Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation al Labor Relations Board 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 or- dered us to post and abide by this notice 230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT discourage you from signing union au- thorization cards by claiming that "Heck's has an abso- lute right to see the union cards." WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. HECK'S, INC.