Titche-Goettinger Co.

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.