Joe Tittle & Sons, Inc.

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