Joe Tittle & Sons, Inc.

National Labor Relations Board - Board Decisions

Feb 13, 1969

174 N.L.R.B. 517 (N.L.R.B. 1969)

JOE TITTLE & SONS, INC.
Joe Tittle & Sons, Inc. and Retail Clerks Union
Locals 37 and 1460, Retail Clerks International
Association , AFL-CIO, Petitioner. Case
13-RC- 11642
February 13, 1969
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
Pursuant to a Stipulation for Certification upon
Consent Election executed by the parties' and
approved by the Regional Director for Region 13 on
September 17, 1968, an election by secret ballot was
held on October 4, 1968, among certain employees
of the Employer, as set forth in said stipulation. At
the conclusion of the election, the parties were
furnished a tally of ballots which showed that of
approximately 280 eligible voters, 237 cast ballots,
of which 174 were for the Intervenor, 52 were for
the Petitioner, 1 against both labor organizations, 9
were challenged, and 1 was void. The challenged
ballots were insufficient in number of affect the
results of the election. Thereafter, the Petitioner
filed timely objections to conduct alleged to have
affected the results of the election.
Pursuant to the National Labor Relations Board
Rules and Regulations and Statements of
Procedure, Series 8, as amended, the Regional
Director conducted an investigation, and, on
November 26, 1968, issued and duly served upon the
parties his Report on Objections2 in which he
recommended that objections 1, 2, 3, 4, 5, and 7,
and additional material objections be overruled, and
that objection 6 be sustained. The Regional
Director, therefore, also recommended that the
election be set aside, and that a new election be
directed. On December 9, 1968, the Employer filed
timely exceptions to the Regional Director's Report,
as it related to objection 6, and Statement in
Support thereof. The Petitioner filed no exception.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
Upon the entire record in this case, including the
Employer's exceptions to the Regional Director's
Report and Statement in Support thereof, the Board
finds:
1. The Employer is engaged in commerce within
the meaning of the Act and it will effectuate the
purposes of the Act to assert jurisdiction herein.
'One of the parties was the Intervenor, Joe Tittle & Sons, Inc,
Employees Union.
'This report was subsequently corrected by an Erratum of November 27,
1968, which was also duly served on the parties.
174 NLRB No. 87
517
2. The Petitioner and Intervenor are -labor
organizations claiming to represent certain
employees of the Employer.
3. A question affecting commerce exists
concerning the representation of employees of the
Employer within the meaning of Section 9(c)(1) and
Section 2(6) and (7) of the Act.
4. We find, in accord with the stipulation of the
parties, that the following employees constitute an
appropriate unit for the purposes of collective
bargaining within the meaning of Section 9(b) of the
Act:
All full and regular part-time employees at the
Employer's Indiana stores located at 501 S. Lake
Street and 1776 W. 37th Ave. Gary; 8341 Wicker
Park Blvd., Highland; and 1605 Calumet Ave.,
Valparaiso, excluding office clerical employees at
2645 Wabash, Gary, and all truckdrivers, guards,
store and meat department managers, and all other
supervisors, as defined in the Act.
5. The Regional Director found with respect to
objection 6 that the existence of a rule against
solicitation at two of the Employer's four stores
which are included in the unit, and the exclusion of
representatives of the Petitioner from the parking
lot in front of one of the two stores the night prior
to the election, unlawfully interfered with the
election. We disagree.3
The Regional Director found that there was in
existence prior to the unions' organizational
campaign a rule posted at the courtesy booth in the
front of the Highland and Valparaiso stores reading,
"Sorry, we cannot permit solicitation within this
store or within the limits of our delivery and
parking area." However, he also found that there
was evidence from the Employer tending to support
the conclusion that a number of employees did not
believe that the rule prevented solicitation of
employees by a labor organization. He also found,
inter alia, that employees were engaged in
solicitation on behalf of the Petitioner in nonwork
areas of these two stores on a continual basis
preceding the election. He found that the Valparaiso
store manager, on the night preceding the election,
advised representatives of the Petitioner that they
could not continue to give employees in the public
parking lot in front of the store handbills concerning
the Petitioner. However, he also found that the
Petitioner did not make any attempt to handbill at
Valparaiso on any other occasion, and on the same
evening and the next morning the Petitioner was
allowed to handbill freely at the three other stores in
the unit. Finally, he found that, except for this
incident at the Valparaiso parking lot, there was no
evidence that any improper restraints were imposed
on the Petitioner's dissemination of oral or printed
statements.
In the absence of exception thereto, we adopt , pro forma. the Regional
Director's recommendation that objections 1, 2, 3, 4, 5, 7, and additional
objections which the Regional Director considered in the course of his
investigation , be overruled.
518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Employer asserts that the Regional Director's
investigation disclosed that the courtesy booth was
used as a posting place only for notices to customers
and nonemployees, and that there was no posting of
any no-solicitation rule on boards near the time
clocks in the two stores where notices to employees
were posted;-moreover, that the evidence shows the
rule -was never pointed out to employees by
management. The Employer thus contends that the
rule was not applied or intended to be applied to
union solicitations. The Employer asserts that, in
any event, the facts found by the Regional Director
rebut any presumption that the rule had an
inhibitory effect on employees.
With respect to the Valparaiso parking lot
incident, the Employer contends that the handbilling
occurred on the sidewalk in front of the store, and
not in the public parking lot, and, in any event, this
incident was too isolated to affect the results of the
election.
We are unable to conclude, from either the
language of the rule or the surrounding
circumstances, that it refers to union solicitation.
Nor was it applied in such manner, as the Regional
Director's Report shows that employees were
engaged in continual union solicitation in the two
stores in which the rule was posted. Under the
foregoing facts, it cannot be said that the rule had
any effect on the election. Rand's Inc.4 Cf. The Lion
Knitting Mills, Inc.5 .
With respect to the single instance of direction to
representatives of the Petitioner to refrain from
handbilling, we find that, in view of the general
freedom accorded employees and non-employees to
solicit and/or handbill employees on behalf of the
Petitioner in the four store-unit prior to the election,
this incident which occurred at one store and in one
instance is too isolated to- warrant our setting aside
of the election.
As we have overruled all of the objections, and as
the tally of the ballots shows that the Intervenor has
received a majority of the valid ballots cast, we shall
certify it as the exclusive bargaining representative
of the employees in the appropriate unit.
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that Joe Tittle & Sons, Inc.,
Employees Union, has been designated and selected
by a majority of the employees in the unit found
appropriate above, as their representative for the
purposes of collective bargaining, and that, pursuant
to Section 9(a) of the National Labor Relations
Act, as amended, the said labor organization is the
exclusive bargaining representative for all employees
in such unit for purposes of collective bargaining
with respect to rates of pay, wages, hours of
employment, and other terms and conditions of
employment.
'172 NLRB No. 211.
' 160 NLRB 801, 802, fn 1.