Titche-Goettinger Co.

National Labor Relations Board - Board Decisions

Jun 28, 1967

166 N.L.R.B. 19 (N.L.R.B. 1967)

TITCHE-GOETTINGER COMPANY
Titche-Goettinger Company and Retail , Wholesale,
and Department Store Union , AFL-CIO. Case
16-CA-2640.
June 28, 1967
13 ECISION AND ORDER
By MEMBERS BROWN, JENKINS, AND ZAGORIA
On April 5, 1967, Trial Examiner William Seagle
issued his Decision in the above-entitled proceed-
ing, finding that the Respondent had engaged in and
was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. Thereafter,
the Respondent filed exceptions to the Trial Ex-
aminer's Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in this case, and hereby
adopts the Trial Examiner's findings, conclusions,
and recommendations.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that the Respondent, Titche-Goettinger
Company, Dallas, Texas, its officers, agents, suc-
cessors, and assigns, shall take the action set forth
in the Trial Examiner's Recommended Order.
' The Trial Examiner inadvertently failed to dispose of the allegation,
in subparagraph 7(e) of the amended complaint, that on or about June 14
and 15, 1966, Joe Vlk, an alleged supervisor, orally interrotgated the
Respondent's employees with respect to their voting intentions and
preferences, in violation of Section 8(a)(1) of the Act. Absent any
evidence in that regard, we hereby dismiss the allegation.
We correct the Trial Examiner's inadvertent reference to July 21 in
defining the newly conferred holiday option period, which in fact was from
May 26 to July 2, and we also hereby substitute "in any other manner"
for "in any like or related manner" in the second line of the seventh sub-
stantive paragraph of the notice attached as an appendix to the Trial Ex-
aminer's Decision.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
WILLIAM SEAGLE, Trial Examiner: Upon a charge filed
on April 4, 1966. a complaint issued on May 13, 1966,
19
and an amendment to the complaint issued on August 25,
1966, the Trial Examiner heard this case at Dallas, Tex-
as. on January 16 and 17. 1967.
The basic issues presented by the pleadings were
whether the Respondent violated Section 8(a)(1) of the
Act by announcing an additional paid holiday during the
pendency of a union organizing campaign, and by coer-
cively interrogating employees and threatening their job
security while the same union organizing campaign was
in progress.
Subsequent to the hearing, counsel for the General
Counsel and for the Respondent filed briefs, which have
been duly considered.
Upon the record so made and in view of my observa-
tion of the demeanor of the witnesses, I hereby make the
following findings of fact:
1. THE RESPONDENT
The Respondent, Titche-Goettinger Company
(hereinafter referred to as Titche's) is a Texas corpora-
tion which maintains retail stores and a warehouse at
various locations in Dallas. Texas, where it has been en-
gaged in the business of buying and selling goods and ser-
vices. The Respondent is a wholly owned subsidiary of
Allied Stores. The only facilities of the Respondent in-
volved in the present proceeding are its warehouse and
service center located at 10750 Denton Drive
(hereinafter referred to as the service center) and a retail
store identified as the Titche Northpark retail store' in
Dallas. Texas.
During the past 12 months, which is a representative
period, the Respondent, in the course and conduct of its
business operations, sold and distributed products, the
gross value of which exceeded $500,000. During the
same period of time, the Respondent shipped and trans-
ported products valued in excess of $50,000 from its own
places of business directly to States of the United States
other than the State of Texas. During the same period of
time, the Respondent also received goods valued in ex-
cess of $50,000, which were transported to its places of
business directly from States of the United States other
than the State of Texas.
The Respondent admits that at all material times it has
been an employer engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act, and I so find.
II. THE LABOR ORGANIZATION INVOLVED
Retail , Wholesale and Department Store Union,
AFL-CIO (hereinafter referred to as the Union). is a
labor organization which has been seeking to organize the
employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. The Organizational Background
The Union's organizing campaign was launched during
the last week in March 1966 when a small nI(mber of
Titche's employees met with a union representatikvle at the
home of one of them by the name of Harol Denis
' This store seems to be referred to erroneously in the complaint as the
North Fork Retail Store. It is only indirectly involved in the present
proceeding, for the Union claimed to represent only the employees in the
service center
166 NLRB No. 5
20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Richards, who was employed at the service center.
Richards became very active in soliciting fellow-em-
ployees to sign union authorization cards, and testified
that he had obtained 55 to 60 signatures of eligible em-
ployees One of the other employees at the meeti'ig,
whose name was Carroll Wayne Lassetter and who was
employed at the service center, was also very active in
this regard and testified that he had succeeded in signing
up from 25 to 30 employees within a period of 6 or 7 days
after the meeting.
On April 5, 1966, the Union requested recognition as
bargaining representative. but the Respondent declined
to extend such recognition, and on April 14 the Union
filed a representation petition.2 The bargaining unit set
forth in the petition consisted of "all warehouse em-
ployees and production employees, including shipping
and receiving department employees and truckdrivers
employed at 10750 Denton Drive, Dallas, Texas." sub-
ject to the usual exclusion of office clerical employees,
technical and professional employees, guards, watchmen.
and supervisors as defined in the Act. On May 17 and 18,
the parties executed a stipulation for certification upon
consent election,3 and an election was scheduled for June
16. Approximately 158 eligible voters cast ballots in the
election; of these 63 cast ballots in favor of the Union and
61 cast ballots against it; and the ballots of 22 voters were
challenged. Under date of December 20, the Board
directed that if a determination of the validity of the chal-
lenged ballots was insufficient to give the Union a majori-
ty, the election be set aside because of the failure of the
Respondent to comply with the rule in Excelsior Un-
derwear, Inc., 156 NLRB 1236 A second election was
pending at the time of the hearing. The present proceed-
ing is concerned with the unfair labor practices com-
mitted by the Respondent prior to the first election.
B. The Granting of the Holiday in Lieu of Memorial
Day
Immediately after the fixing of the date for the election,
Leon D. Starr, who was then the president of Titche's but
who is now special assistant to the president of Allied
Stores, began an unremitting propaganda campaign
against the Union. The employees were bombarded with
letters urging them to vote against the Union in the
forthcoming election, and this activity was climaxed on
June 9 by a somewhat lengthy speech to the employees
urging them to vote against the Union for pretty much the
same reasons as those advanced in the letters. The speech
was accompanied, moreover, by the turning over of
flip-cards designed to illustrate and give point to Starr's
arguments. These arguments were based on the familiar
theme that all the Union was interested in was the collec-
tion of dues, and that their membership ^n the Union
would not only avail them nothing but lead to strikes and
to the loss of the benefits which they already enjoyed
without paying dues to a union. In one of the more lurid
moments of his speech, Starr even asserted that the of-
ficers of the Union had furnished $80,000 in bail money
for men who had been indicted by the United States as
out-and-out Communists. When he made this statement.
Starr turned over a flip-card containing a representation
of the red flag.
Whether Starr's propaganda campaign against the
Union constituted an unfair labor practice is not directly
in issue in the present proceeding It is nevertheless rele-
vant as background to the consideration of the issues
which are involved in the present proceeding One of
these issues is whether the Respondent committed an un-
fair labor practice in announcing on May 26 an additional
paid holiday in lieu of Memorial Day Titche's employees
had not previously enjoyed such a holiday Stores in Dal-
las remained open on Memorial Day. and the employees
of Titche's had not been paid for working during this
holiday.
The paid holiday in lieu of Memorial Day was first
orally announced by Starr to the employees of the service
center early in the morning of the day before a formal an-
nouncement of the holiday was made in writing. Although
Starr on this occasion talked to the employees for about
20 minutes, apparently. she evidence concerning what he
said is very scanty. Only two witnesses testified concern-
ing Starr's remarks, Lassetter and another service center
employee by the name of Lancaster, and neither of them
could remember very much. Both of them did remember,
however, that Starr had assured them on this occasion
that the additional paid holiday that was being granted
had nothing to do with the current union activities
The formal announcement, of the paid holiday in lieu of
Memorial Day, that was distributed to the employees on
May 26 read as follows:
I am pleased to make the following announcement.
It is always a plea-ure to be able to add something to
Titche's list of benefits. Effective immediately every
employee is to be given an extra day paid holiday
which will be added to the list of your other five regu-
larly paid holidays.
As you know, the stores in Dallas have traditionally
remained open on Memorial Day to service their
customers; this year, along with the other major
stores in the city, Titche's is adding a holiday around
the period of Memorial Day so our employees can
have the advantages of an extra day off. This holiday
will be taken between now and July 2. You will
schedule this on an individual basis with your super-
visor. Following the policy used in scheduling regu-
lar vacations, first preference as to day will be given
to those employees with the longest service.
We are giving this holiday to maintain our policy of
always being competitive As we have stated in the
past. Titche's believes in being competitive in
merchandise pricing, working conditions, and wages
and benefits - benefits such as medical and life it
surance which recognize the need of our employee
- and benefits su h as vacations and holidays which
add to the enjoyment of working at Titche's.
Hope you have a good time.
As specified in the announcement, all the employees of
the service center were actually granted a holiday in lieu
of Memorial Day between May 26 and July 2, and thus
enjoyed the holiday during a period that included the date
2 The petition is in evidence as General Counsel's Exh 6, Case It is in evidence as General Counsel's Exh 5
16-RC-4262
TITCHE-GOETTINGER COMPANY 21
of the election. Starr knew, of course, that the election
was pending when the additional holiday was announced,
and before making the announcement he had, in fact,
sought the advice of counsel as to whether he might be
charged with an unfair labor practice if he took the con-
templated action. In testifying about this, Starr did not
reveal, however, the nature of the advice which he had
received.
The record shows that the paid holiday in lieu of
Memorial Day was not limited to the employees of the
service center but also granted to all Titche's employees
in Dallas County, of whom there were about 2,000.
It will be observed that, apart from attributing the grant
of the new holiday to the alleged policy of always being
competitive, no mention was specifically made in the an-
nouncement of the stores that granted a paid holiday in
lieu of Memorihl Day. In fact the reference in the an-
nouncement to stores in the plural was incorrect. In his
testimony at the hearing Starr contended that the holiday
was granted on May 26 because another store in Dallas,
Sanger-Harris, had granted a paid holiday in lieu of
Memorial Day on May 11. • It seems that this became
known to a few of Titche's employees within a day or
two, and that these employees mentioned it to Frank
Murray, Titche's personnel director, who, by contacting
the personnel director of Sanger-Harris, whose name was
Robert R. Zimmerman, verified that such action had been
taken. Starr attributed his delay in following suit to the
need to consult counsel and to make the necessary
preparations before the new holiday could be announced.
It is settled on the highest authority that the grant of a
benefit by an employer to his employees during the pen-
dency of a union campaign constitutes an unfair labor
practice if a purpose of the grant is to defeat or forestall
union organization. 4
I must conclude that there is substantial evidence that
Starr would not have granted the holiday in lieu of
Memorial Day if the union election were not pending.
This is indicated by the timing of the grant. which in-
cludes not only its announcement less than 3 weeks be-
fore the scheduled election but also its implementation
immediately before' and after the election; by the marked
hostility of the respondent's executives to any form of
union organization as manifested in their letters to their
employees and Starr's speech of June 9 to the employees;
by the other unfair labor practices in which the Respond-
ent's supervisors engaged both before and after the an-
nouncement of the holiday, as hereinafter related;5 by
Starr's own consciousness that the decision which he
wished to make might be regarded as an unfair labor prac-
tice; and, finally, by the evasiveness which he manifested
and by the, contradictions in which he indulged in testify-
ing about his motives.
In Starr's propaganda against the Union, the most im-
portant and revealing item is his letter of June 1, 1966, to
the employees, for in this letter, which must be read
against his constant stress on the futility of union or-
ganization , and the theme that benefits could be expected
only from , the Respondent, he gave as an example of the
Respondent 's liberality the extra holiday in lieu of
Memorial 'Day which had just been granted by the
Respondent. Thus, Starr stated in this letter to the em-
ployees:
This morning I asked Mr. Murray to give you the
true facts concerning the benefits that you receive
from Titche ' s. He showed you the sizable benefits
that were furnished you at no cost to you.
When I spoke to you personally at the Service
Center regarding the extra holiday (i.e. the paid
holiday in lieu of Memorial Day), I pointed out the
fact that Titche's has been giving our employees
wages and benefits for the last sixty-five years. If you
have been with the company for any length of time,
I think you are familiar with the improvements and
additions we have made in recent years.
This is our policy:
To be competitive in our industry in the City of
Dallas in wages, benefits and working conditions.
We have done so in the past and shall continue to do
so in the future.
Note, well: you have received these benefits
without any help from any outsiders . Now a union is
making glowing promises about benefits. I can assure
you these are only promises . You must remember
one important thing: The union can only ask for
things - only Titche 's can make the decision as to
what is fair and equitable.
Obviously, the message intended to be conveyed by Starr
in this letter was that the employees did not need the
Union to obtain benefits from the Respondent, and the
fact that he drove this lesson home by calling their atten-
tion to the extra holiday which he had just granted betrays
his true motive in taking this action.
It has been recognized by both the Board and the
courts, to be sure, that an employer may confer a benefit
on his employees , notwithstanding the pendency of a
union organizing campaign , and the incidental effect that
his action may have in discouraging union membership,
if he is motivated by some legitimate business reason.
The Respondent seeks to bring itself within the ambit of
this doctrine by invoking the defense that the action
which it took was necessary to maintain its policy of al-
ways being competitive . Having invoked this affirmative
defense, Jhe Respondent was bound to establish it by per-
suasive evidence . But the evidence , far from being per-
suasive, actually shows that the grant of the extra holiday
served no legitimate business purpose that could not have
been served equally well a few weeks later after the union
election had been held . It would be easier to determine
the urgency of granting the extra holiday if one knew just
what Starr meant by competition in benefits or if one un-
derstood precisely why it was imperative from a competi-
tive point of view to equalize benefits. But Starr remained
extremely vague on this whole subject and never defined
his terms , and, unfortunately , of all forms of competition,
competition in benefits is the most difficult to assay. It
must be apparent at least , however, that the need to main-
tain competition in benefits can hardly have much in com-
mon with the need to maintain current competition in
prices, or even wages . Insofar as competition in benefits
is concerned, the term "competition" is also something of
a misnomer . It is more like keeping up with the Joneses,
and it can be as frustrating for the Jones corporation as
for the Joneses. Benefits cannot be compared in separate
categories but must be compared as a complex whole. In
comparing the benefits given by one employer with those
of another, it is obviously not sufficient to count up the
number of paid holidays that each allows, for fewer
holidays for the employees of one employer may be more
than offset by other benefits , such as superior pensions,
See N.L.R.B. v. Exchange Parts Company, 375 U S. 405. 5 See section C of this Decision , infra.
308-926 0-70-3
22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
life or health insurance, or even a better air conditioniro
system, and higher wages paid by an employer can go a
long way to compensate for fewer or poorer fringe
benefits. Even when the totality of working conditions is
compared it is often hard to say which set is superior.
Actually, the Respondent failed to produce the
evidence which would show whether, after the holiday in
lieu of Memorial Day had been granted, its employees en-
joyed a total of as many benefits as the employees of
Sanger-Harris. While, concededly, such a showing might
have been difficult to make, it would have been simple for
the Respondent to have shown that after it had granted
the holiday in lieu of Memorial Day, the employees of
Sanger-Harris and of Titche's enjoyed precisely the same
number of paid holidays. The record does show that after
Starr had granted the holiday in lieu of Memorial Day
Titche's employees had a total of six paid holidays. But,
alas, the record is devoid of evidence that would show
how many holidays were already enjoyed by Sanger-Har-
ris employees before it granted a holiday in lieu of
Memorial Day. As there are eight national holidays, and
many more local and religious holidays, it is quite possi-
ble that Sanger-Harris still remained ahead in holidays
even after Titche's had added a holiday. Thus, Titche's
may have failed to keep up with Sanger-Harris despite its
desire to be competitive.
It appears, affirmatively, moreover, that Sanger-Harris
was not Titche's only competitor. At one point in his
testimony Starr declared Sanger-Harris to be Titche's
"major" competitor but at other points in his testimony
Starr only characterized Sanger-Harris as "a major com-
petitor," or as "a primary competitor." [Emphasis suppli-
ed.] These characterizations are, obviously, contradicto-
ry. The truth is that Titche's competed directly, as Starr
also admitted, with Neiman-Marcus, the nationally
known Dallas department store, and also with Sears
Roebuck and Company, which had a store at Lamar and
Ross Avenue, which, although not located in what is con-
sidered the central business district of Dallas, is neverthe-
less close to the downtown area of Dallas. Now, despite
the fact that Sears Roebuck had been giving the em-
ployees of the Dallas store, as well as the employees of its
other stores, a paid holiday in lieu of Memorial Day be-
fore Titche's did so, Starr had in no way been disturbed
by the greater liberality of Sears Roebuck. Yet Titche's
stores in Dallas were, like the Sears Roebuck store in the
Dallas area, part of a national chain. On the other hand,
it appears that Neiman-Marcus, did not give its em-
ployees a paid holiday in lieu of Memorial Day, and did
not follow Titche's example in this respect until sometime
afterwards. If Starr could ignore the example which had
been set by Sears Roebuck, and Neiman-Marcus could
ignore for an appreciable time the example set by Starr,
it would seem to be a fair conclusion that Ttarr himself
could have waited a few additional weeks before granting
the holiday in lieu of Memorial Day. Certainly the
Respondent presented no evidence that its employees
were quitting in large numbers and accepting employment
with its competitors.
Indeed Starr was not very consistent as a witness in at-
tempting to explain his action. Pressed to state whether
any other consideration had entered into his decision to
grant the additional holiday, he answered: "Yes, the con-
sideration of being a good employer." But at other points
in his testimony Starr also declared the action taken by
Sanger-Harris in granting the holiday to be his "primary
reason." Asked to state what his secondary reason had
been, Starr asserted that there was "no secondary
reason." This would, of course, make it the only reason.
These contradictions clearly betray, again, Starr's real
motive, which was to influence the employees to vote
against the Union in the election by convincing them that
he was a good employer.
It is true, of course, that it cost the Respondent a sub-
stantial sum of money to be "a good employer," since
once the decision had been made to pay for the additional
holiday, it had to be given not only to the approximately
158 employees in the bargainng unit but also to all of
Respondent's employees in Dallas County, who num-
bered approximately 2,000. But the commission of unfair
labor practices is frequently costly even when it does not
include the conferral of benefits, or the discharge of em-
ployees, for it leads to litigation, which is itself costly.
Nevertheless, such costs are often endured to forestall
the still greater costs resulting from a successful union
drive, which might lead to general wage increases, and to
many more benefits than one additional holiday. Thus
cost has little to do with the question whether the
Respondent in incurring it had an unlawful motive. The
fact that the additional holiday did cost money serves
again, however, to illustrate another of the contradictions
involved in the Respondent's defense. By not granting the
additional holiday, the Respondent could have gained a
competitive advantage over Sanger-Harris and its other
competitors, for with lower costs it could have undersold
them.
In his brief, counsel for the Respondent cites Phillips
Manufacturing Company, 148 NLRB 1420, Higgins In-
dustries, Inc., 150 NLRB 106, and Champion Pneumatic
Machinery Co., 152 NLRB 300, as supporting his posi-
tion. The situations in these cases have little in common,
however, with that in the instant case. Although not cited
by counsel for the Respondent, there is a case, W. T.
Grant Company, 104 NLRB 338, in which wages were
increased by the manager of the Grant store in Elkins,
West Virginia, after he had been informed by the manager
of a Murphy store located in the same block that he in-
tended to raise the wage levels in his store. Priding him-
self on paying his employees as well as any store in El-
kins, the manager of the Grant store followed suit, not-
withstanding the fact that a union campaign was in
progress. The Trial Examiner and the Board held that the
Respondent had violated Section 8(a)(1) of the Act but
the Fifth Circuit declined to enforce the Board's Order in
N.L.R.B. v. W. T. Grant Company, 208 F.2d 710, 712.
The resemblance between the Grant case and the instant
case is, however, only superficial. Apart from all the
other circumstances that distinguish the two cases, the
court was unable to find any other violations of Section
8(a)(1) of the Act, which removed, of course, an impor-
tant prop in cases of this kind.
C. The Other Unfair Labor Practices of the Respondent
The evidence also shows that Carroll Wayne Lassetter,
one of the most active employees in the union drive, was
repeatedly and persistently interrogated by the super-
visors of the Respondent. The first of these interrogations
appears to have occurred on or about March 24. About
7:30 a.m. of the morning in question Lassetter had a flat
tire on his tractor as he came off his run. He obtained the
keys to the garage from Sammy Young, one of the em-
ployees, so that he could obtain another tire. When he
took the keys back to the office of Tony DiaForli, Jr., the
TITCHE-GOETTINGER COMPANY 23
receiving and marking manager at the service center, he
found, not only the latter to be there but also Manuel
Puentes, Jr., his immediate supervisor. DiaForli told Las-
setter to sit down, that he wanted to talk to him. DiaForli
then asked Lassetter what he knew about "this scut-
tlebutt about a union." Lassetter replied that he knew
nothing, and DiaForli then remarked that "if a union ever
got started that he could fire fifty people because Allied's
contract calls for each person to mark five hundred items
per hour" (this referred to the work of the employees
whose jobs were to mark merchandise). DiaForli fol-
lowed this intimidating declaration with a query as to
whether Lassetter had signed a union card but the latter
would not answer this query. Puentes joined the conver-
sation at this point by asking: "Are you sure you did not
sign a union card?" Lassetter again declined to anwer this
question.
On or about March 29, a day after about 18 of Titche's
employees had held a meeting at the IEU hall in the 1500
block of Maple Avenue in Dallas, Lassetter was also in-
terrogated by Clifford Farsje, operations manager at the
service center. About 3 p.m. that day, Puentes had in-
structed Lassetter to carry a load to the Northpark Store,
and, when he arrived there, he found Farsje standing on
the dock. The latter walked over to Lassetter's truck and
asked him what he knew about "this union mess." When
Lassetter denied that he knew anything, Farsje invited
him to join him in a cup of coffee in the Granada Room of
the Northpark Store, where he asked Lassetter how
many people had been at the union meeting the previous
day. The latter's reply was that there had not been too
many but Farsje contradicted him, stating that there had
been "eighteen people at the -union meeting ," and also
inquired how many union cards had been signed at the
meeting. Lassetter replied that the way the union
representative had talked not enough employees had
signed cards to start a union. Farsje then remarked that
ever since the Allied Store in Houston had become
unionized it had been in an uproar, and asked Lassetter
whether he himself had signed a union card , and also who
had started the union at the service center. Lassetter ad-
mitted that he had signed a union card but assured Farsje
that none of the truckdrivers at the warehouse had been
responsible for starting the Union.
On or about April 18, about 3 p.m., when Lassetter
came off a run, he was told by DiaForli that E. G. Ricket-
son, the warehouse manager, wished to see him in the
transfer room office. When Lassetter arrived there, he
found Ricketson talking to Olem Hamby, a shipping and
receiving room employee. Ricketson had a sheet of paper
in his hand , and he was remarking : " I will start all over."
He then read from the sheet of paper a statement to the
effect that Titche's had received a request from the Union
for recognition and that if anyone talked to the em-
ployees, whether, on or off the job, about union activities,
they should come and tell him, and the Company would
protect their rights. Ricketson made the same statement,
moreover, to all of the employees upon Starr 's instruc-
tions.
On or about June 1, about 8:30 a.m., Lassetter was
sitting in the employees ' lounge in the service center with
another employee by the name of Leslie LeVoid Lan-
caster when DiaForli entered the lounge and joined them.
He had a paper in his hand, and he handed it to the two
employees and told them to read it before they decided
whether they wanted a union. On the paper, appeared the
text of the Texas right-to-work law. After Lassetter and
Lancaster had read it, DiaForli proceeded to explain that
under that law employees who went on strike could be
replaced and refused reemployment after the strike had
been settled . DiaForli then went on to reminisce about
his own experience with unions . He confessed that when
he had been living in New Jersey he had himself been a
union member , but he made it clear that in his opinion
unions were only for skilled labor , and that , so far as
Titche 's employees were concerned , he could take any-
one who had an eighth grade education off the street, and
teach him the whole marking procedure in half a day. He
went on to explain , moreover , that Allied Stores did not
have a marking room before , and could do without one
now. Indeed , he even disclosed that Allied Stores did not
really need the whole Dallas operation , and if it started
costing the stockholders money because it had gone
union , they would close down every store in Dallas.
Harold Denis Richards , at whose home the union or-
ganizing campaign had been launched, was also inter-
rogated twice by Farsje at a time when the latter was no
longer warehouse manager but was working, apparently,
at the Northpark Store . On or about March 31, 1966,
Farsje found Richards at the store's loading dock in the
early afternoon and invited the latter to have coffee with
him in the Granada Room . Once there , Farsje began to
pump Richards about the Union 's activities . Richards de-
nied that he had any knowledge of these activities.
Nevertheless , Farsje asked him whether he had signed a
union card , and when he admitted that he bad done sp,
Farsje remarked that he had heard that Richards "was in-
stigating the union at the warehouse ." Richards asked
where Farsje had obtained this information but received
no answer to his question . Instead,.Farsje told Richards
that he felt that "he had treated the employees fairly and
hadn 't done anything to bring this about ." Richards con-
ceded that if Farsje were still warehouse manager "we
probably wouldn 't have done this ." Encouraged by this
assurance , Farsje asked Richards whether Wayne Las-
setter had signed a union card , whether the employees
had had a union meeting , and how many had been present
at the meeting. Apparently , Richards answered only the
last question , telling Farsje that 23, or 25, or 26 em-
ployees had been present at the union meeting . Farsje
challenged this estimate , however, stating that he had
heard that about 18 employees had been present , and ex-
pressed a doubt that the Union would do them any good.
Farsje concluded the interview by remarking to Richards
that if he felt that all this was none of his business, he
could say so , and go back to work . A few days later, how-
ever, when Richards was unloading a truck at the
Northpark store , Farsje came up to him again and asked
whether there had been any more union meetings.
Richards replied that there had been no more union
meetings . Farsje then asked Richards how some of the
other employees felt about the Union , and Richards
replied that he did not know.
Another employee at the service center, Alvis C.
Gregory , who had worked in the major appliance and
television department for about 10 years, and who was
hard of hearing, was interrogated by John Dunne, the
head of his department , on or about May 27. When, at the
end of the day, Gregory returned from making his service
calls, Dunne remarked to him : "Say, what about this
union thing?" Gregory replied that "it looked like we got
a union whether we like it or not." Dunne disputed this,
declaring that there was only one man in his department
who would vote for the Union , and that Gregory knew
24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
who that was. Dunne added : "We don 't want a union, and
if the union comes in we can close this shop down and
farm out the work." Dunne concluded his remarks by ad-
vising Gregory to vote against the Union.
On June 14, which was 2 days before the scheduled
election , DiaForli seized the opportunity to attempt to
persuade Ronnie Tischmacher , one of the service center
employees , to vote the right way in the election. While
Tischmacher was working in the transfer room , DiaForli
came up to him about 10:30 a.m., and said : "Come over
here to the loading dock . I want to talk to you ." In the en-
suing conversation , DiaForli asked Tischmacher:
"Where's the company failed you?" Tischmacher's reply
was: "Nothing ." DiaForli went on to speak about his ex-
perience with unions , and to assure Tischmacher that
Titche's was the best company he had ever worked for.
Tischmacher asked DiaForli what kind of retirement plan
the Company had, and to this question DiaForli replied
that the Company matched dollars with social security,
and that he would get no more benefits than he now had
when the Union came in . During the afternoon of the next
day, when Tischmacher was again in the transfer room
area, Frank Murray sought to reinforce the message
which DiaForli had sought to convey the previous day.
Murray came into the transfer room , pointed his finger at
Tischmacher , and remarked : "Vote no, tomorrow, Ron-
nie." Having done so, Murray smiled and walked off.
Clifford Farsje, E. G. Ricketson , and Frank Murray
were not called as witnesses on behalf of the Respondent,
and the testimony relating to the incidents in which they
were involved stands, therefore , uncontradicted. Tony
DiaForli, John R . Dunne, and Manuel Puentes were
called as witnesses by the Respondent , and gave versions
of their conversations with Lassetter , Lancaster, Grego-
ry, and Tischmacher which differ from those of these em-
ployees. I credit , however, the testimony of these em-
ployees who were called as witnesses by counsel for the
General Counsel . DiaForli, who was the Respondent's
principal witness, must be regarded as thoroughly dis-
credited . He admitted enough of his conversations with
the employees concerned to show that he must have said
everything which the latter attributed to him. His at-
tempted explanations of what he claimed that he said are
difficult indeed to believe . Despite the manifest hostility
of the Respondent towards the Union, DiaForli actually
contended for example , that Lassetter volunteered the in-
formation that he had signed a union card . There are also
flat contradictions between DiaForli 's testimony at the
hearing and statements made by him in his prehearing af-
fidavit. There are also discrepancies between the
testimony of DiaForli and Puentes . DiaForli, like Las-
setter , testified that his conversation with the latter oc-
curred in the morning on or about March 24, but Puentes
was positive that the conversation in question took place
in the afternoon . DiaForli could not even remember
whether Puentes was present during the conversation.
Dunne gave even more absurd testimony than either
DiaForli or Puentes . He claimed that he had his conver-
sation with Gregory in order to remind him to be sure to
vote in the election because Gregory was very hard of
hearing but Dunne never succeeded in explaining the
connection between the necessity for the reminder and
Gregory's hearing defect. Dunne admitted that he had a
little additional conversation with Gregory but he simply
could not remember what the conversation was about.
After repeating this a number of times, he finally denied
flatly that he had said to Gregory that if the Union came
in, they would close down the appliance service depart-
ment and farm out the work.
I do not share the doubts of counsel for the Respondent
concerning the credibility of the General Counsel's wit-
nesses. In particular , he attacks the testimony of Las-
setter on the grounds that the latter in a prehearing af-
fidavit did not mention any conversation with Farsje, and
that there are discrepancies between Lassetter's
testimony and the statement in this affidavit concerning
a conversation with DiaForli on April 18. It is true that
there is no specific mention in this affidavit of Lassetter's
of his encounter with Farsje on or about March 29. There
is reason to doubt , however that this affidavit was in-
tended to be complete , for there is no mention in this affi-
davit for example, of Lassetter 's encounter with DiaForli
and Puentes on or about March 24.6 Yet counsel for the
Respondent does not question that such an encounter
took place . No doubt he fails to do so because both
DiaForli and Puentes, his own witnesses , admitted a con-
versation with Lassetter on or about March 24 on the oc-
casion when Lassetter came in with a flat tire, although
neither DiaForli nor Puentes agreed , of course , with Las-
setter 's version of the conversation . The evidence of Las-
setter concerning his interrogation by Farsje is supported,
moreover , by the testimony of Richards, who, like Las-
setter, was interrogated concerning his union activities by
Farsje in pretty much the same manner a day or two after
he had interrogated Lassetter . As for the statement made
by Lassetter in the affidavit concerning the conversation
with DiaForli on April 18 in the presence of Ricketson,
this must relate to a totally different conversation about
which Lassetter was not asked to testify at the hearing,
doubtless because nothing was said in the conversation
that would be coercive . There can be not the slightest
doubt concerning the truthfulness of Lassetter's
testimony concerning Ricketson 's instructions to the em-
ployees to report to the management any attempts on the
part of the Union to solicit their support.
To summarize the evidence, it shows that the Respond-
ent through a good number of its supervisors-DiaForli,
Puentes, Farsje , Ricketson , Dunne, and Murray - inter-
rogated the employees in order to ascertain who the union
leaders were , who the employees were who had signed
union cards, and how many of the employees were at-
tending union meetings , pretending at the same time that
they had such information already, and creating in this
manner an impression of surveillance; that in the course
of the interrogations they made threatening remarks,
leading the interrogated employees to believe that their
job security would be imperiled if they continued to sup-
port the Union ; that they instructed the employees to re-
port to them any attempts to solicit their support of the
Union , whether or not such attempts were made on or off
the job ; and finally that at least one instance an em-
ployee was instructed how to vote in the forthcoming
election.
Counsel for the Respondent seems to argue in his brief
that there are no allegations in the complaint covering a
number of the incidents developed at the hearing. While
there are some slight variations between the pleadings
and the proof , the evidence that would be affected by the
6 Lassetter gave quite a number of affidavits to Board agents , at least
three and perhaps five.
TITCHE-GOETTINGER COMPANY 25
variances is only cumulative. It is true also that there is
no allegation at all in the complaint with respect to
Ricketson's instructions to the employees to report union
solicitations to the management. But counsel for the
Respondent made no objection at the hearing to receiving
the evidence relating to the giving of this instruction, and
the issue involved was fully litigated. Indeed, the Re-
spondent's counsel even agreed to stipulate that Ricker-
son was a supervisor within the meaning of the Act,
although no such allegation was contained in the com-
plaint, or in the amendments to the complaint, as in the
case of the other supervisors. Findings may be made, of
course, with respect to any issue that has been fully
litigated.
Counsel for the Respondent also makes a number of
substantive contentions, but they are also without merit.
Thus he not only contends that Ricketson's instructions
to the employees to report any attempts at union solicita-
tion, whether on or off the job, was not an unfair labor
practice but also that it cured any prior unlawful activity of
any other supervisor, presumably because protection was
promised to the employees who followed the instructions.
But this only aggravated the unfair labor practice, for in
effect the Respondent was promising to engage in further
interference with legitimate union activities. It is, of
course, well settled that invitations to employees to re-
port to the employer legitimate union activities constitute
unfair labor practices.' I also cannot agree with the
further contention that DiaForli's remark about closing
down the marking room was merely the discussion of a
possibility, for the possibility mentioned was clearly a
threat, nor does it seem to me to make any difference that
Farsje's activities may have occurred away from the
warehouse, and that there is no evidence that any other
employee became aware of them. I know of no require-
ment that an unfair labor practice can be committed only
on the Employer's immediate premises, or that coercive
interrogations are unlawful only if another employee is
present. Coercive interrogations of individual employees
are just as bad, if not worse, than interrogation of groups
of employees.8 I am equally at a loss to understand how
the incidents in which Farsje, as well as Dunne were in-
volved, can be considered "isolated." The basis for this
argument is, apparently, the assumption that in the law of
labor relations any one supervisor is permitted at least
one unfair labor practice. Finally, I take seriously, Mur-
ray's instruction to Tischmacher on how to vote, despite
the smile that followed the instruction. The smile may
have betokened satisfaction, as well as a jesting mood,
and the Respondent never called Murray as a witness to
explain what he had in mind.
IV. THE REMEDY
In view of the serious nature of the violations of the
Act by the Respondent's representatives or supervisors,
I shall recommend a broad form of cease-and-desist
order , restraining the Respondent from infringing upon
any of the rights guaranteed to employees by Section 7 of
the Act.
CONCLUSIONS OF LAW
1. The Respondent , Titche-Goettinger Company, is
an employer engaged in commerce , or in an industry af-
fecting commerce , within the meaning of Section 2(6) and
(7) of the Act.
2. Retail , Wholesale and Department Store Union,
AFL-CIO,, is a labor organization within the meaning of
Section 2 (5) of the Act.
3. By conferring upon its employees an additional
holiday in lieu of Memorial Day; by interrogating its em-
ployees coercively concerning their union activities; by
accompanying these interrogations by threats to the job
security of its employees if they continued to support the
Union ; by attempting to create in the minds of its em-
ployees the impression that their union activities were
under surveillance ; by instructing its employees to report
to their supervisors any attempts to solicit their support
of the Union , whether or not such attempts were made on
or off the job; and , finally, by instructing one of its em-
ployees to vote against the Union in a forthcoming elec-
tion, the Respondent interfered with , restrained, and
coerced its employees in the exercise of the rights guaran-
teed to them in Section 7 of the Act and thereby com-
mitted unfair labor practices affecting commerce within
the meaning of Section 8(a)(1) of the Act.
RECOMMENDED ORDER
Upon the entire record in this case, and pursuant to
Section 10(c) of the National Labor Relations Act, as
amended, I recommend that the Respondent,
Titche-Goettinger Company, its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Conferring upon its employees any additional
benefits, whether in the form of paid holidays or other-
wise, in order to influence their union activities.
(b) Interrogating its employees coercively concerning
their union activities.
(c) Threatening the job security of its employees if
they continue to support the Union.
(d) Attempting to create in the minds of its employees
the impression that their union activities are under sur-
veillance.
(e) Instructing its employees to report to their super-
visors any attempts to solicit their support of the Union,
whether or not such attempts are made on or off the job.
(f) Instructing any of its employees to vote against the
Union in any election that may be held.
(g) In any other manner interfering with, restraining,
or coercing its employees in the exercise of the rights
guaranteed to them in Section 7 of the Act.
2. Take the following affirmative action in order to ef-
fectuate the policies of the Act:
' See, for instance, National Welders Supply Co., Inc., etc., 132 NLRB
660; Rea Construction Company, 137 NLRB 1769, Burlington Indus-
tries, Inc, Vinton Weaving Company Plant, 144 NLRB 245, Thurston
Motor Lines, Inc., 149 NLRB 1368; The Borden Company, 157 NLRB
1100
9 The Fourth and Fifth Circuit Court of Appeals have identically
declared "Even a single question put to a single employee may be a viola-
tion, however, if there is a background of union hostility." See N L R.B.
v Cameo, Inc., 340 F 2d 803, 805 (C.A. 5) and N.L.R B. v. Lexington
Chair Company , 361 F.2d 283 (C.A. 4).
26 DECISIONS OF NATIONAL
(a) Post at its warehouse and service center at 10750
Denton Drive, in the city of Dallas, Texas, copies of the
attached notice marked "Appendix."9 Copies of said
notice, to be furnished by the Regional Director for Re-
gion 16, after being duly signed by the Respondent's
representative, shall, be posted by the Respondent im-
mediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
the Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(b) Notify the said Regional Director, in writing,
within 20 days from the receipt of this Decision, what
steps the Respondent has taken to comply herewith.'°
9 In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board 's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order."
10 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read: "Notify said Regional Director,
in writing, within 10 days from the date of this Order, what steps Respond-
ent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board, and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we herey notify our em-
ployees that:
WE WILL NOT confer upon our employees any ad-
ditional benefits, whether in the form of paid holidays
or otherwise, in order to influence their union activi-
ties.
LABOR RELATIONS BOARD
WE WILL NOT interrogate our employees coercive-
ly concerning their union activities.
WE WILL NOT threaten the job security of our em-
ployees if they continue to support the Union.
WE WILL NOT attempt to create in the minds of our
employees the impression that their union activities
are under surveillance.
WE WILL NOT instruct our employees to report to
their supervisors any attempts to solicit their support
of the Union, whether or not such attempts are made
on or off the job.
WE WILL NOT instruct any of our employees to
vote against the Union in any election that may be
held.
WE WILL NOT in any like or related manner inter-
fere with, restrain, or coerce our employees in the ex-
ercise of their right to self-organization, to form labor
organizations , to join or assist Retail, Wholesale and
Department Store Union, AFL-CIO, or any other
labor organization, to bargain collectively through
representatives of their own choosing or to engage in
other concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection, or
to refrain from any or all such activities.
TITCHE-GOETTINGER
COMPANY
Employer
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecutive
days from the date of posting, and must not be altered,
defaced, or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, Room 8A24,
Federal Office Building, 819 Taylor Street, Fort Worth,
Texas 76102, Telephone 334-2941.