Titche-Goettinger Co.

National Labor Relations Board - Board Decisions

May 14, 1969

175 N.L.R.B. 970 (N.L.R.B. 1969)

970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Titche-Goettinger Company and Retail , Wholesale
and Department Store Union , AFL-CIO. Case
16-CA-3454
May 14, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
On January 14, 1969, Trial Examiner Ivar H.
Peterson issued his Decision in the above-entitled
proceeding, granting the General Counsel's Motion
for Judgment on the Pleadings, and finding that the
Respondent had engaged in and was engaging in
certain unfair labor practices within the meaning of
the National Labor Relations Act, as amended. The
Trial Examiner recommended that the Respondent
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 Examiner's Decision
and a supporting brief.
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.
The Board has reviewed the rulings made by the
Trial Examiner 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 brief, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Exmainer.'
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,
successors, and assigns, shall take the action set
forth in the Trial Examiner's Recommended Order.
'In adopting the Trial Examiner 's recommendations , we note that the
correct tally of the election conducted on April 24, 1968 , was that of
approximately 107 eligible voters, 100 cast ballots of which 49 were for,
and 46 against the petitioner, with 3 void and 2 challenged ballots.
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
The Representation Proceeding'
IVAR H . PETERSON , Trial Examiner : Upon petition filed
under Section 9(c) of the National Labor Relations Act
(29 U.S.C.A. 159 (c)) on March 2, 1968 , by Retail,
Wholesale and Department Store Union, AFL-CIO,
herein called the Union, a hearing was held by the Acting
Regional Director for Region 16 of the Board who
subsequently issued a Decision and Direction of Election
in an appropriate bargaining unit, described hereinafter, of
the employees of Titche-Goettinger Company, Dallas,
Texas, herein called the Respondent.
Pursuant to the Decision and Direction of Election, an
election by secret ballot was conducted on April 24, 1968,'
under the supervision and direction of the Regional
Director. Immediately following the election the parties
were served with copies of the Tally of Ballots which
showed that of approximately 107 eligible voters, 97 cast
ballots, of which 49 were for, and 38 were against the
Union, with 3 void and 2 challenged ballots. On May 1,
the Respondent filed timely objections to conduct
affecting the results of the election, alleging : (1) that the
void ballots should have been considered as votes against
the Union, (2) that the Board agent rushed people through
the voting procedure and refused to answer any questions
about the procedure, (3) that the Union observer,
Clemmie Lewis, "took charge" of the conduct of the
election, (4) that the union observers were allowed to tell
the voters that they were not eligible to vote, rather than
merely challenging their vote, (5) that an active and
militant union supporter, L. B. Harris, was permitted to
coerce and intimidate voters by his presence, and (6) that
the total conduct of the election resulted in confusion in
the minds of the voters. The Respondent submitted
affidavits of employees to support these contentions.
On August 6, the Acting Regional Director issued a
Supplemental Decision and Certification of
Representation in which he stated that he had conducted
an investigation of the challenges and objections, found
that the objections raised no substantial or material issues
with respect to the election, overruled the objections and
certified the Union as the representative of the employees
in the appropriate unit. As to the challenged ballots the
Acting Regional Director stated that they were not
sufficient in number to affect the results of the election.
On August 16, Respondent filed a timely appeal with the
Board from the Acting Regional Director's Supplemental
Decision and Certification of representative. No requests
for review was filed with respect to the Acting Regional
Director's rulings on the challenges.
On September 19, the Board issued an order denying
the Respondent's request for review of the Regional
Director's Supplemental Decision and Certification of
Representative, on the ground that it raised no substantial
issues warranting review.
The Complaint Case
On October 16, the Union filed the unfair labor
practice charge in the instant case in which it alleged that
since August 6, 1968, and continuing to date, the Union
has requested the Respondent to bargain collectively,
which the Respondent has refused to do.
'Offical notice is taken of the record in the representation proceeding,
Case 16-RC-4566, as the term "record" is defined in Sec. 102.68 and
102.69(l) of the Board 's rules (Rules and Regulations and Statements of
Procedure , National Labor Relations Board , Series 8, as amended). See
LTV Electrosystems, Inc., 166 NLRB No. 81, enfd . 388 F .2d 683 (C.A. 4);
Golden Age Beverage Co., 167 NLRB No. 24; Intertype Co. v. Penello,
269 F.Supp . 573 (D.C. Va. 1967); Follett Corp., 164 NLRB No. 47, enfd.
397 F.2d 91 (C.A. 7); Sec. 9(b) of the NLRA.
'Unless otherwise indicated , all dates refer to the year 1968.
175 NLRB No. 165
TITCHE-GOETTINGER CO. 971
On November 14, the General Counsel, by the
Regional Director of Region 16, issued a complaint and
notice of hearing alleging that Respondent had committed
unfair labor practices in violation of Section 8(a)(1) and
(5) and Section 2(6) and (7) of the Act by refusing to
bargain with the Union upon request. On November 20,
1968, Respondent filed its answer to the complaint in
which certain allegations of the complaint were admitted
and others denied. On November 29, the Respondent
amended its answer to deny paragraph 14(b) of the
complaint.'
In its answer and amended answer the Respondent
admits the following allegations of the complaint: (I) the
filing of service of the charge, (2) certain jurisdictional
facts, (3) that the Union is a labor organization within the
meaning of Section 2(5) of the Act, (4) that an election
was held, (5) that the Union has requested the Respondent
to bargain collectively, and (6) that the Respondent has
refused and continues to refuse to bargain. Respondent
denied the allegations contained in the complaint to the
effect that: (1) the Union has been and is now the
exclusive representative for the purposes of collective
bargaining of a majority of the employees in the unit, and
(2) that by refusing to bargain in connection with the
other allegations described, the Respondent did engage in
and is engaging in unfair labor practices affecting
commerce within the meaning of the Act.
Under date of November 26, received November 29,
counsel for General Counsel filed a Motion for Judgment
on the Pleadings in which he contends that the pleadings,
considered together with the official Board record in the
underlying representation, proceeding Case 16-RC-4566,
raise no issues requiring a hearing; that Respondent's
defense set forth in its answer raises no litigable questions
of fact; and that, as a matter of law Respondent has no
valid defense to the complaint.
On December 3, Trial Examiner Charles Schneider
issued an Order directing the parties to show cause, on or
before December 17, as to whether or not General
Counsel's motion should be granted. On December 16,
counsel for Respondent filed an opposition to General
Counsel's Motion for Judgment on the Pleadings. On
December 19, General Counsel filed a reply to the
Respondent's opposition. No other responses have been
received.
Rulings on Motion for Judgment on the Pleadings
In its opposition to the motion for judgment on the
pleadings Respondent urges that General Counsel's
motion should be denied for a number of reasons which in
summary are as follows: (1) the representation matters
were not litigated, but were determined in an ex parse
proceeding wherein Respondent had no opportunity to
cross-examine witnesses presented by the charging party
and the Regional Director, (2) the refusal to allow him to
cross-examine witnesses and to introduce evidence
constitutes a denial of due process, (3) that unless he is
allowed to litigate the representation question, the
Respondent would not have a final determination for
purposes of judicial review, and (4) a full hearing and
report by a Trial Examiner is required.
'On December 5, the General Counsel filed an amended complaint in
which he deleted par . 14(b) of the complaint . In view of this fact, I give no
consideration to Respondent's claim of an issue raised by that paragraph.
I find the Respondent 's contention unsubstantiated.
The questions of the validity of the election and
certification were decided by the Board in the
representation proceeding . It is established Board policy in
the absence of newly discovered or previously unavailable
evidence or special circumstances not to permit litigation
before a Trial Examiner in an unfair labor practice case
of issues which were or could have been litigated in the
prior related representation proceedings .' Respondent's
objections to the certification constitute an attempt to
relitigate the Board ' s determination and therefore must
fall unless supported by new evidence or special
circumstances.
There is no absolute right to a hearing under Section
10(b) of the Act if there are no litigable issues. See Harry
Campbell Sons ' Corporation 164 NLRB No. 36, fn. 9,
and cases there cited ! The statutory and procedural
language cited by Respondent do not hold to the contrary.
As the court of appeals said in the case of Air Control
Window Products of St. Petersburg , Inc., 335 F . 2d 245,
249 (C.A. 5): "If there is nothing to hear, then a hearing
is a senseless and useless formality."
The Trial Examiner has no authority to review the
Board' s final disposition of the representation proceeding
or to question its conclusion based on the existing record.
However, the Board ' s findings are not res judicata. The
Respondent is free , in exceptions to this Decision, to
request the Board to reconsider the determinations in the
representation case and , in the event of an unfavorable
final order by the Board , Respondent may request review
of those determinations in an appropriate court of
appeals . At this stage of the proceedings, however , absent
newly discovered or previously unavailable evidence, or
special circumstantances, the Board ' s disposition of the
representation matters is the law of the case and binding
on the Trial Examiner . No newly discovered or previously
unavailable evidence is offered by Respondent , or special
circumstances alleged.
Respondent ' s contention , that the fact that the
representation matter cannot be litigated before a court of
appeals absent a determination of the unfair labor
practices , means that Congress obviously intended that
full litigation should occur at the unfair labor practice
level, is without merit . The Respondent in no way
supports this claim absent his own visceral reaction.
There being no unresolved issues requiring an evidential
hearing on newly discovered or previously unavailable
evidence or special circumstances , the certification of the
Board constitutes the law of the case at this stage of the
proceeding and is binding on the Trial Examiner. The
Motion for Summary Judgment is therefore granted. I
hereby make the following further:
'Howard Johnson Company, 164 NLRB No. 121; Metropolitan Life
Insurance Company. 163 NLRB No. 71; See Pittsburgh Plate Glass
Company v. N.L.R.B., 313 U.S. 146, 162; N.L.R.B. v. Zelrich Company,
344 F.2d 1011 (C.A. 5); N.L.R.B. v. 0. K. Van and Storage, Inc., 297
F.2d 74 (C.A. 5); Rules and Regulations and Statements of Procedure,
National Labor Relations Board, Series 8, as amended , Sec. 102 .67(1) and
102.69(c).
'See also the following cases in which the use of summary judgment
procedure where no litigable issues appeared has been enforced by the
Courts: Baumritter Corp.. 386 F .2d 117 (C.A. 1); Puritan Sportswear
Corp., 385 F.2d 142 (C.A. 3); LTV Electrosystems, Inc.. 388 F.2d 683
(C.A. 4); Aerovox Corp., 390 F.2d 653 (C.A. 4); Neuhoff Bros. Packers.
Inc.. 362 F.2d 611 (C.A. 5); Tennessee Packers. Inc.. 379 F.2d 172 (C.A.
6); Follett Corp., 397 F.2d 91 (C.A. 7); Krieger-Ragsdale & Company,
Inc., 379 F.2d 517 (C.A. 7); E. Z. Davies Chevrolet 395 F.2d 191 (C.A. 9).
972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS AND CONCLUSIONS
I THE BUSINESS OF THE RESPONDENT
Titche-Goettinger Company, the Respondent, is, and
has been at all times material herein, a corporation duly
organized under, and existing by virtue of the laws of the
State of Texas, maintaining its principal office and places
of business in Dallas , Texas , where it is engaged in the
business of retail merchandising.
The Respondent, during the last 12 months, in the
course and conduct of its business operations , sold and
distributed products, the gross value of which exceeded
$500,000. During this same period of time, Respondent
received goods valued in excess of $50,000 which were
transported to its Dallas, Texas, places of business directly
from States of the United States other than the State of
Texas.
Respondent is, and has been , at all times material
herein , an employer engaged in commerce within the
meaning of Section 2(6) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is, and has been at all times material herein,
a labor organization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
The following employees of the Respondent constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All food handling employees of the employer at its
downtown and North Park stores, Dallas, Texas,
including regular part-time employees , hostesses,
cashiers, and food inventory clerks, exclusive of all
other employees, office clerical employees, guards,
watchmen, executives, department managers, and
supervisors as defined in the Act.
On April 24, a majority of Respondent's employees in
the said unit designated and selected the Union as their
collective-bargaining representative in a secret ballot
election conducted under the supervision of the Regional
Director of Region 16 of the National Labor Relations
Board.
On August 6, the Acting Regional Director certified the
Union as the exclusive collective-bargaining representative
of the employees in the appropriate unit . Respondent's
request that the Board review the Acting Regional
Director's certification was denied on September 19.
At all times since August 6, and continuing to the
present time, the Union has been the representative for
the purpose of collective bargaining of the employees in
the said unit, and by virtue of Section 9(a) of the Act has
been, and is now , the exclusive representative of all
employees in said unit for the purpose of collective
bargaining with respect to rates of pay, wages , hours of
employment , and other terms and conditions of
employment.
Commencing on August 6, and at all times thereafter,
the Respondent did refuse and continues to refuse to
bargain collectively with the Union as the exclusive
collective-bargaining representative of all the employees in
the above unit.
By thus refusing to bargain collectively the Respondent
has engaged in unfair labor practices in violation of
Section 8(a)(5) of the Act, and has interfered with,
restrained and coerced its employees in violation of
Section 8(a)(1) of the Act.
The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings and conclusions and entire
record in the case I recommend that the Board issue the
following order:
ORDER
A. For the purpose of determining the duration of the
certification the initial year of certification shall be
deemed to begin on the date the Respondent commences
to bargain in good faith with the Union as the recognized
bargaining representative in the appropriate unit.'
B. Titche-Goettinger Company, Dallas, Texas, its
officers, agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Retail,
Wholesale and Department Store Union, AFL-CIO, as
the exclusive collective-bargaining representative of the
employees in the following appropriate bargaining unit:
All food handling employees of the employer at its
downtown and North Park stores, Dallas, Texas,
including regular part -time employees , hostesses,
cashiers, and food inventory clerks, exclusive of all
other employees, office clerical employees, guards,
watchmen, executives, department managers, and
supervisors as defined in the Act.
(b) Interfering with the efforts of said Union to
negotiate for or represent employees as such exclusive
collective-bargaining representative, or in any like or
related manner interfering with employee efforts at
self-organization.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Upon request bargain collectively with Retail,
Wholesale and Department Store Union, AFL-CIO, as
the exclusive representative of the employees in the
appropriate unit with respect to rates of pay, wages, hours
of employment, and other terms and conditions of
employment, and embody in a signed agreement any
understanding reached.
(b) Post at its office and place of business in Dallas,
Texas, copies of the attached notice marked "Appendix."'
Copies of said notice, on forms to be furnished by the
Regional Director for Region 16, shall, after being duly
signed by the authorized representative of the Responpent,
be posted by the Respondent immediately 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 Respondent to insure
that said notices are not altered, defaced, or covered by
any other material.
'The purpose of this provision is to insure the employees in the
appropriate unit will be accorded the services of their selected bargaining
agent for the period provided by law. See Mar-Jac Poultry Co., Inc., 136
NLRB 785, Commerce Co. d/b/a Lamar Hotel, 140 NLRB 226, 229,
enfd 328 F .2d (C.A 5), cert denied 379 U.S 817; Burnett Construction
Co, 149 NLRB 1419, 1421, enfd . 350 F.2d 57 (C.A. 10).
'In the event this Recommended Order is adopted by the Board, the
words "a Decision and Order" shall be substituted for the words
"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
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order."
TITCHE-GOETTINGER CO. 973
(c) Notify the Regional Director for Region 16, in office clerical employees, guards, watchmen,
writing, within 20 days from receipt of this Recommended executives, department managers, and supervisors as
Order, what steps the Respondent has taken to comply defined in the Act.
herewith! WE WILL NOT interfere with the efforts of the Union
'In the event these Recommendations are adopted by the Board, the
provision shall be modified to read: "Notify the Regional Director for
Region 16, in writing , within 10 days from receipt of this Order, what
steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify our
employees that:
WE WILL NOT refuse to bargain collectively with
Retail , Wholesale and Department Store Union,
AFL-CIO, as the exclusive collective-bargaining
representative of all our following employees:
All food handling employees at our downtown and
North Park stores , Dallas , Texas , including regular
part-time employees , hostesses , cashiers , and food
inventory clerks , exclusive of all other employees, and
to negotiate for or represent employees as exclusive
collective-bargaining representative, or in any like or
related manner interfere with employee efforts at
self-organization or bargaining.
WE WILL bargain collectively with the Union as
exclusive collective-bargaining representative for the
employees in the appropriate unit and if an
understanding is reached we will sign a contract with
the Union.
Dated By
TITCHE-GOETTINGER
COMPANY
(Employer)
(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 817-334-2921.