Blade-Tribune Publishing Co.

National Labor Relations Board - Board Decisions

Dec 6, 1966

161 N.L.R.B. 1512 (N.L.R.B. 1966)

1512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
upon any attempt to misuse its processes to secure partisan advan-
tage 2 And, plainly, we cannot sanction the reproduction of a Board
document which is altered for campaign purposes and used under
circumstances where it is reasonably calculated to mislead employees
into believing that the Board has judged the Employer to have vio-
lated Federal law whereas, in truth, it has only made allegations
which have yet to be proved We shall set aside the election and order
a new one
[The Board set aside the election ]
[The Direction of Second Election 3 omitted from publication ]
2 Allied Electric Products Inc, 109 NLRB 1270 1271, 1272
3 An election eligibility list, containing the names and addresses of all the eligible voters
must be filed by the Employer with the Regional Director for Region 9 within 7 days after
the date of issuance of the Notice of Second Election by the Regional Director The
Regional Director shall make the list available to all parties to the election No extension
of time to file this list shall be granted by the Regional Director except in extraordinary
circumstances Failure to comply with this requirement shall be grounds for setting aside
the election whenever proper objections are filed Emcelsxor Underwear Inc , 156 NLRB 1236
Blade-Tribune Publishing Company and San Diego Typographi-
cal Union , Local 221 , International Typographical Union,
AFL-CIO Case 21-CA-6808 December 6, 1966
DECISION AND ORDER
On July 18, 1966, Trial Examiner Abraham H Mailer issued his
Decision in the above-entitled proceeding, finding that Respondent
had engaged 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,
both the Respondent and the General Counsel filed exceptions to the
Trial Examiner's Decision and supporting briefs
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 [Chairman McCulloch and Members Brown and Zagoria]
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, the briefs, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, with the following modification
161 NLRB No 137
BLADE-TRIBUNE PUBLISHING CO. 1513
The General Counsel excepted to the Trial Examiner's failure to
find that employee John Jochheim's application was a valid, sub-
sisting designation at the time the request for recognition was made.
We think the exception :is well founded. Jochheim's application was
dated July 31, 1963. The request for recognition was made on Janu-
ary 20, 1965. In excluding the application, the Trial Examiner relied
on Luckenbach Steamship Co. Inc., 12 NLRB 1330, and Surpass
Leather Company, 21 NLRB 1258, which indicated that cards or
applications signed more than 1 year prior to the bargaining
request are too stale to be counted unless reaffirmed within 1 year
prior to the request. Assuming that this rule is of continued vitality,
we think that Jochheim's application is within an exception to the
rule, namely, where the application was made during the same
organizational campaign which led to the request and the campaign
was interrupted by the filing and processing of unfair labor practice
charges. See Knickerbocker Plastics Co., Inc., 104 NLRB 514. The
Trial Examiner has found that there was one interrupted campaign
in this case, and we therefore think that Jochheim's application,
made contemporaneously with the beginning of the campaign, was a
valid and subsisting designation on January 20, 1965. We also dis-
agree with the Trial Examiner that Jochheim's completion of the
requirements for membership on August 6, 1965, was too remote in
time to demonstrate his continued adherence to his designation of the
Union as of January 20, 1965.
[The Board adopted the Trial Examiner's Recommended Order
with the following modification,:
[1. In paragraphs 1(c) and 1(d) of the Trial Examiner' s Recom-
mended Order, change the period to a comma and add the following :
"except to the extent authorized by Section 8 (a) (3) of the Act."]
TRIAL EXAMINER 'S DECISION
STATEMENT OF' THE CASE
On June 28, 1965 , San Diego Typographical Union, Local 221 , International
Typographical • Union , AFL-CIO, herein called the Union, filed a charge against
Oceanside Blade-Tribune Publishing Company ' and Thomas Braden , publisher.
Upon said charge, the Regional Director for Region 21 of the National Labor
Relations Board , herein called the Board , on October 8, 1965, issued on behalf of
the General Counsel a complaint against Blade-Tribune Publishing Company,
herein called the Respondent ,- alleging violations of Section 8(a) (1) and (5) of
the National Labor Relations Act, as amended ( 29 U.S .C. Sec. 151, et seq.),
herein called the Act.
In substance , the complaint alleged that since on or about January 15, 1965,'
the Union had been designated by a majority of the employees in an appropriate
unit described in said complaint , as their exclusive bargaining representative; that
the Respondent has refused to bargain collectively with the Union ; that following
1 All events involved herein, unless otherwise indicated, took place during 1965.
1514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's receipt of the Union's request to bargain, Respondent stated to its
employees in the said unit that it was opposed to their having a collective -bargaining
representative and conducted systematically an inquiry among said employees and
interrogated them as to their affiliation with the Union , that in April and early
May, in anticipation of an election scheduled for May 5, Respondent conducted a
series of luncheon meetings wherein it resumed its systematic inquiry to ascertain
the extent to which the employees in the unit were disclosing support for the
Union In its duly filed answer, the Respondent denied the commission of any
unfair labor practices At the hearing , the General Counsel requested and was
given leave to amend the complaint to allege that in April, Respondent threat-
ened to institute , and did institute , a discriminatory , unreasonable, and oppressive
work schedule for employees who were known union adherents Respondent orally
denied the allegation
Pursuant to notice, a hearing was held before Trial Examiner Abraham H Mailer
at Oceanside, California, on December 14, 15, and 16, 1965 The General Counsel,
the Respondent, and the Charging Party were represented and were afforded full
opportunity to be heard, to introduce relevant evidence, to present oral argument,
and to file briefs before me Briefs were filed by all parties
Upon consideration of the entire record, including the briefs of the parties, and
upon my observation of each of the witnesses , I make the following
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I THE BUSINESS OF THE RESPONDENT
Respondent is a California corporation having its principal place of business in
Oceanside, California, where it publishes and distributes a daily newspaper, using
nationally syndicated feature articles and interstate news services In the course
of its operations , it purchases materials and services delivered directly to it from
sources in States other than California, which annually costs in excess of $50,000,
and additionally purchases from California suppliers other materials and sup-
plies which annually cost in excess of $50,000 and which are shipped directly to
said suppliers from sources in States other than California In its operations,
Respondent conducts a gross business that exceeds $500,000 annually Accordingly,
I find and conclude that Respondent is engaged in commerce within the meaning
of the Act and that it will effectuate the policies of the Act for the Board to
assert jurisdiction here
H THE LABOR ORGANIZATION INVOLVED
San Diego Typographical Union, Local 221, International Typographical Union,
AFL-CIO, is now and has been at all times material herein a labor organization
within the meaning of Section 2(5) of the Act
IH THE ISSUES
1 Whether the Union represented a majority of the employees in an appro-
priate unit when it requested recognition and bargaining
2 Whether the Respondent had a good-faith doubt as to the Union's majority
3 Whether the Respondent interrogated its employees as to their union affilia-
tion, in violation of Section 8(a)(1)
4 Whether the Respondent threatened to, and did , institute a discriminatory,
unreasonable, and oppressive work schedule for an employee who was a known
union adherent
IV THE UNFAIR LABOR PRACTICES
A Sequence of events
I The advent of the Union
The Union's attempt to organize Respondent's employees began in 1963, and
after an interruption, continued to January 1965 On January 15, 1965 , the Union
claimed to represent 14 of the 23 shop employees (excluding Foreman Wells)
employed by Respondent 2 On that day, Carl Mason , president of the Union, sent
'The Respondent challenges several of the authorizations relied upon by the Union to
prove its majority, and contends that Foreman Wells should be included in an appropriate
unit These issues are fully discussed infra
BLADE-TRIBUNE PUBLISHING , CO. 1515
a telegram to Thomas W. Braden ,, principal stockholder, editor, and managing
director of the Respondent . In pertinent part the telegram read as follows:
Please be advised that San Diego Typographical Union No . 221, Interna-
tional Typographical' Union, affiliated with the American Federation of
Labor-Congress of the Industrial Organizations , has been authorized in writing
by a substantial' majority of the employees in the mechanical department of
your firm to represent them , for purposes of collective bargaining on wages,
hours, and . working conditions:
The mechanical ' department operations include ,, all mechanical operations
from the receipt of the copy by composing room employees to the , finished
product that comes off the printing press . All journeymen and apprentice
employees performing composing room, press and sterotype operations are
included in the collective -bargaining group represented by. San Diego Typo-
graphical Union No. 221.'
We are prepared to meet, promptly with you and your associates for the
purpose of negotiating an acceptable labor-management contract covering
wages, hours, and working conditions for the employees of your , firm as set
'forth above .3
2. Respondent refuses to recognize the Union
Braden was away from the .ciiy'when the telegram , was received , and it was
.acknowledged by his secretary . Upon his return, he called a meeting of the
-employees who were directed to attend by their respective foremen . Braden read
the telegram and expressed his opposition to the Union . He said , inter alia, that
"he hated to see it come into the shop"; that "he felt that the owner of a plant
should run his own plant the way he saw fit"; that "we didn 't need a union in the
shop"; that "he believed in free enterprise . . that he could run the newspaper
better than the union could run it"; that "he felt that the Blade -Tribune would be
better off without the union"; that "it's up to you people , but I am against it. At
this time I can't afford it." 4
Braden also consulted with his counsel to whom he expressed his doubt as to
the Union's majority. On January 20, he replied to the Union as follows:
Thank you for your telegram of January 15 , 1965 , which I have just
received in as much as I have been out of town . I don't see the point of a
meeting at this time.
I doubt that your union represents a majority of our employees in any
appropriate collective , bargaining unit.
For stability in collective bargaining , it seems to me that the union should
be certified by the National Labor Relations Board as the collective -bargaining
representative of our employees in an appropriate collective bargaining unit.
Therefore I suggest that if you desire to pursue this matter further, you
do so through the approved procedure of the National Labor Relations Board.
3. Respondent interrogates employees
Following the sending of his reply of January 20, Braden systematically inter-
viewed individually' 13 of his employees . In each instance , the employee was sum-
moned to Braden's office by his foreman. In these interviews , Braden showed or
read the telegram from the Union , told them - that they did not have to answer
his questions, and that whatever ' they said would not be held against them. He
then asked them whether they wanted to be represented by the Union.
Several of the employees testified with regard to their interviews with Braden.
Employee Bowman testified credibly that Braden asked him whether ' he was in
the Union , and he replied that he was . He told Braden he wanted a raise, and
Braden replied , "I can 't give you a raise, because of the Union . I will see what
I can do ." He testified further that approximately 2 weeks thereafter he did receive
a 20-cent-an-hour raise.
s The telegram was later confirmed by letter.
• The foregoing quotations are taken from the credited testimony of employees Bowman,
Messinger , Agneta, David Wanner, and Salani, a witness for the Respondent . Braden
admitted reading the telegram to a group of employees , but did not remember making any
comment.
1516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employee Harrington testified credibly that . Braden asked him whether he had
been contacted by the Union , and he answered that he had been to a meeting at
the Miramar Motel. Braden then asked him whether he had signed a card. Har-
rington replied in the negative , although he had, in fact , signed an application for
membership. Braden also told Harrington that. he didn't think that ' the Blade-
Tribune needed a union at the time, but maybe within 5 or 10 years it might be a
good thing to have . Braden also asked Harrington . whether he knew that it was
about time for raises , and Harrington replied , "I heard that since the Union is
trying to get in we won't be getting any raises until it is settled ." To this, Braden
rejoined, "That 's the idea." However, Braden , promised to see what he could do.
Harrington received a 15-cent-an-hour raise sometime before an election which
was held on May 5.
Employee Messinger testified that during the interview Braden told him how he
felt about the Union and that "he figured that his plant should be run the way
he saw fit to run it." He then asked Messinger how'he felt about the Union. Mes-
singer told him that he had not made up his mind . Later, he told Braden that he
did not want to be represented by the Union.
Employee Agneta testified that during the course of the interview , Braden
asked him whether he was happy working at the Blade-Tribune. Agneta replied
that he was. Braden asked him if he had any problems and whether he was
happy with the wages. Agneta replied that he was. Braden then asked him if he
was concerned about pay raises, and Agneta said that he was not , that a nickle or
a dime one way or another didn't concern him. Braden then asked him, "What
in the heck is the idea of all these dragging people over to the Miramar with the
Union men that was there." Agneta replied that he wanted job security and
pointed out that he had worked at the Blade-Tribune on two prior occasions and
had been discharged. Braden also asked Agneta whether he had signed anything
for the Union. Agneta replied in the negative, but admitted that his answer to
Braden was not truthful because he did not want to tell him that he had signed.
Employee David Wanner testified that during the interview, Braden said that "he
felt that the Blade-Tribune would be better off without the union." Braden asked
him whether he had been contacted by the Union, and Wanner answered in the
affirmative. Braden asked him how he felt about the Union, and Wanner replied
that he would probably be in favor of it. Braden asked him why, and Wanner told
him that he was going to Alaska and that the shops there are union, and that it
would be to his benefit to be a union member. Braden then asked Wanner, "Why
would I kick him in the teeth . just before I left."
Employee Eugenia Wanner (nee Smith)5 testified that Braden asked her if she
knew anything about the Union, and she answered in the affirmative.. He told her
about the advantages and disadvantages of a union and asked her what she thought
about the Union. She replied, "I didn't know anything about either side. I didn't-
I was innocent." She testified further that it was her best recollection that at the
time of the interview she had not yet signed an application with the Unions
4. Further communications between the Respondent and the Union
On February 4, counsel for the Union replied to Braden's letter of January 20.
In pertinent part the reply was as follows:
Please be advised that the Union will be happy to satisfy any good faith.
doubt as to its majority representation of your employees through the custom-
ary cross-check procedures with the State Conciliation Service. This means that
the Union will submit evidence of union affiliation or authorization for repre-
sentation to the State Conciliator who will cross-check this evidence against a
list of your employees. If for any reason you would prefer a neutral third
party for the purpose of resolving any good faith doubt as to majority status,
6 Eugenia Wanner is the wife of David Wanner. 'Mrs. Wanner was unmarried' at the time
she signed her application to become a member of the Union, and her application is signed
in her maiden name.
I Mrs. Wanner was obviously mistaken in this regard. Her application was dated Jan-
uary 14, 1965, and it has been established by credible evidence that she signed her applica-
tion for membership on that date. It is further clear from Braden's testimony that he did
not commence interviewing employees until after he sent his reply to the Union's request
for bargaining on January 20. It is therefore apparent, and I find, that Mrs. Wanner had
applied for membership in the Union at the time that she was interviewed and interrogated
by Braden.
BLADE-TRIBUNE PUBLISHING CO. 1517
the Union has also authorized :recourse , to clergymen , professors, or any other
qualified neutral . third party.
As to the 'question 'of a bargaining unit, the Union will include in the bar-
gaining unit all mechanical employees, including your composing room, press-
room and stereotype operations at your Oceanside location.
If you have any question about this unit or alternative proposal the Union
will be happy to discuss it with you.
On February 11, counsel for the Respondent sent a letter to counsel for the
Union acknowledging receipt of the Union 's letter of February 4 . In pertinent part
the letter was as follows:
We are informed that subsequent to the receipt of a telegram from Carl H.
Mason , President , San Diego Typographical Union Local 221, on January 15,
1965 , and prior to the receipt of your letter of February 4, 1965, an investi-
gation was conducted for the purpose of determining whether or not Mr.
Mason 's claim that the employees in the mechanical departments of the Blade-
Tribune , Publishing , Company desired San Diego Typographical Local 221 to
represent them in collective bargaining was correct . We are advised that as a
result of such investigation the Blade -Tribune Publishing Company genuinely
doubts that such Union does represent a majority of its mechanical department
employees or any other employees in an appropriate collective -bargaining unit
and genuinely doubts the validity of any authorizations obtained from its
employees . Therefore , we believe that the procedures set forth in your letter
of February 4, .1965 , are inappropriate.
Furthermore , it is the position of the Blade -Tribune Publishing Company that
a bargaining unit of all mechanical employees , including employees working in
the composing room, pressroom , and stereotype operations is inappropriate.
- We suggest that - these questions of appropriateness of a bargaining unit and
majority status of the San Diego Typographical Union Local 221 be decided by
the National Labor Relations Board in a representation proceeding.
In an undated letter; sent March 9, counsel for the Union replied to the foregoing
letter in pertinent part as follows:
Please be advised that ,ITU Local 221 will 'consent to an expeditious pro-
cedure for determining its majority status in the' traditional composing room
unit, through any. of the procedures set forth in their earlier correspondence,
e.g., a cross-check by a mutual third party or by the State Conciliator . In view
of your client's activities in inquiring as to the desires of his employees regard-
ing ITU representation , it seems clear that there can be no good faith doubt
that Local 221 . represents a majority of the composing room employees.
Further, as you well know , the composing room unit is the traditional one
which is always held appropriate by the National Labor Relations Board.
Please let me know whether your client will agree with this procedure so
that we can have this matter resolved at any early date and commence bar-
gaining negotiations.
Finally, your attention is invited to the recent decision of the 4th Circuit
Court of Appeals in enforcing the order of the National Labor Relations
Board finding that an employer violated Section 8(A)(5) of the Act where
the employer contended that its refusal to bargain collectively was based on
its belief that the union did not have the support of a majority of the employ-
ees, and that the employer was not sure that the bargaining unit sought by
the unit was appropriate , Florence Printing Co. v. N.L.R.B., 333 F.2d 289
(C.A. 4). -
On March 15, counsel for the Respondent wrote to the counsel for the Union
reviewing the previous correspondence and reiterating Respondent's doubt that the
Union represented a majority of the employees of the composing room and that
the Respondent doubted the validity of any authorization cards obtained by the
Union . The letter continued as follows:
'Inasmuch as the Company doubts the validity of such authorization cards,
no purpose will be served by a cross -check of such invalid authorization cards.
It is the position of the Company that the questions of appropriate collective-
bargaining unit and majority status should be resolved by a petition with the
National Labor Relations Board . Furthermore , the Company is willing to enter
into a consent election agreement under the rules of the National Labor Rela-
tions Board ' for a representation election among the employees in the appro-
priate collective-bargaining unit .
1518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. The representation election
On March 22, Respondent filed an RM petition in Case 21-RM-1179. The unit
described in that petition was:
All production and maintenance employees employed in the composing room
department, excluding all other employees and all other supervisors as defined
in the Act.
Shortly thereafter, on April 6, the Respondent and the Union entered into an
Agreement for a Consent Election in the following unit which was agreed to be
appropriate for the purposes of collective bargaining:
All employees employed in the composing room department and the press
stereotype department including craft foremen; excluding all other employees,.
office clerical employees, professional employees, guards and supervisors as.
defined in the Act.
The representation election was conducted on May 5, with the following results:
Of 27 eligible voters, 8 voted for the Union, 15 against the Union, and 4 ballots.
were challenged. The Union filed timely objections to conduct affecting the results.
of the election. The Regional Director sustained one of the objections to the elec-
tion and set aside the election.
6. Respondent's luncheon campaign
After signing the Agreement for Consent Election, Braden admittedly engaged
in a preelection campaign against the Union. This consisted in part.of taking the
employees to lunch, either singly or in pairs at the Miramar Motel restaurant.
Although the normal lunch period for employees at the Blade-Tribune was 3t
minutes, these luncheons lasted from 35 minutes to 1 hour, and the employees were
not docked for the extra time. During the luncheons, Braden admittedly asked the
employees "what they thought of the union, or whether they thought we ought to
have a union." With some, Braden discussed their personal and financial problems.
In his luncheon with employee Bowman, Braden made reference to a pay raise that
Bowman would receive? Employee David Wanner was taken to lunch with
employee Metzger. During the luncheon, Braden told the employees that he thought
it would be possible in the near future to work out a pension plan for the employ-
ees, which, he said, would be as good as the Union's plan .8
7. The change in Employee Agneta's work schedule
For a long period of time prior to the election, Agneta had worked on a shift
beginning at 3 o'clock in the afternoon and ending at 11 o'clock at night. Shortly
before the election, Respondent posted a new work schedule in which Agneta was
changed to the day shift (7 a.m. to 3 p.m.) for each working day except Thursday
when he started at 3 o'clock in the afternoon and worked until 11 o'clock at night,
returning to work at 7 o'clock in the morning oh Friday. This is known in the trade
as "doubling back" and for obvious reasons is considered to be an undesirable
schedule. Agneta was the only employee required to double back. Prior thereto no
other employee had been given such a work schedule. The new work schedule was
effective on May 3, 2 days before the election.
Before the work schedule was posted, Foreman Wells had a conversation with
employee Messinger in which he told him that "as soon as the election was over
with . he was going to get rid of Agneta." He also showed Messinger the new
work schedule and said "he was sure Agneta wouldn't stay there after he saw the
schedule." 9
Toward the end of April, Agneta heard from some of the employees that a new
work schedule had been prepared. He went to Foreman Wells' desk and saw a new
schedule which changed his hours as set forth above. Agneta complained to Fore-
man Wells about the schedule. Wells told him that if he didn't want to work the
schedule, he would be replaced. Agneta then asked to see Braden about the sched-
ule. Foreman Wells refused to let him see Braden and told him that Braden was
aware of the schedule changes and that it would not do any good to talk to him
9 The uncontradicted testimony of Bowman.
8 The uncontradicted testimony of David Wanner. Metzger did not testify.
0 Foreman Wells denied speaking to Messinger about Agneta. I do not credit his denial.
Messinger's testimony in this regard is consistent with Agneta's testimony as to Foreman
Wells' attitude when Agneta complained about the schedule.
BLADE-TRIBUNE PUBLISHING CO 1519
because those hours would have to be worked Agneta attempted to work the sched-
ule but testified credibly that the "doubling back" made him drowsy, thus increasing
the hazard of his job which required him to cut cast metal with a power saw He
thereupon terminated his employment in May
The General Counsel and the Charging Party contend that Agneta was given the
new schedule in retaliation for his known union activities and in order to induce
him to quit Respondent contends that the new hours were necessary because Agneta
was relatively inexperienced and were required by the plant's production schedule
These issues are more fully discussed infra
B Concluding findings
1 The appropriate unit
Although the Respondent in its correspondence with the Union challenged the
appropriateness of the unit proposed by the Union, it thereafter entered into an
Agreement for Consent Election in which it agreed that the unit proposed by the
Union was an appropriate collective -bargaining unit Respondent now contends that
this unit is inappropriate and points out that in the printing trades, the Board has
traditionally found appropriate separate units of the various crafts, citing Dinuba
Sentinel and Sentinel Printing & Publishing Co, 137 NLRB 1610 However,
Respondent concedes that in the later case of Garden Island Publishing Co, Ltd,
154 NLRB 697, the Board has recognized that "where a union seeks to represent
the traditional mechanical crafts in a single unit and where there is no objection to
the joinder of these crafts either by the employer or another union claiming to
represent any mechanical craft on a separate basis , the Board will find the com-
bined unit appropriate " See also Worzella Publishing Comanpy, 121 NLRB 78, 80
Inasmuch as the Respondent did agree with the Union in the Agreement for Con-
sent Election that the combined mechanical unit was appropriate , Respondent must
be held to have waived its objection to such a unit
Indeed , the Board 's processes would become meaningless if a party could blow
hot and cold on this issue , approving the appropriateness of a specific unit when it
suited its purpose to do so and challenging the appropriateness of the unit later
when it deemed such tactic to be advantageous to it 10 Accordingly , I find and con-
clude that all employees employed in the composing room department and the
press-6tereotype department, including craft foremen , but excluding all other employ-
ees, office clerical employees , professional employees, guards , and supervisors, as
defined in the Act, in the employ of the Respondent , constitute a unit appropriate
for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act
2 The Union's majority
On January 15, when the Union submitted its demand for recognition and bar-
gaining, the appropriate unit comprised a maximum of 23 employees, excluding
Foreman Wells Respondent contends that Wells was a craft foreman and should
be counted as a member of the unit The record shows that Wells was foreman of
the composing room and supervised the foreman of the pressroom Indeed , Braden
characterized Wells as "the top man ," and testified that Wells "directed the day-to-
day operations , putting out the paper " Braden further testified that Wells had
authority to hire and fire people in both the composing room and the pressroom,
subject to a tacit understanding that Wells would not fire anybody that had been
there more than a year, without checking with Braden It is clear from the fore-
going , and I find , that Wells was a supervisor within the meaning of the Act 11
10 Respondent 's contention that it had a good faith doubt as to the appropriateness of
the unit when the Union sought recognition and bargaining is discussed infra
"Respondent 's reliance upon Indianapolis Newspapers , Inc and/or Star Publishing
Company, 83 NLRB 407, and Court Square Press Inc , Court Square Bank Note Company
Allied Photoengraving Company, 151 NLRB 861, is misplaced The first case iniolied two
employees who were designated as "coheads" of an art department One of the coheads
had authority to hire , and the parties agreed that he was a supervisor The other cohead
although receiving the same salary as the first did not have authority to hire or fire The
Board held that the second cohead was not a supervisor Nsithin the meaning of the Act
The limited authority possessed by the second cohead in that case cannot be compared
with the authority possessed by Foreman Wells in the instant case Similarly the Court
Square Press case is inapposite The Board held that cei tam named persons « ho "have
no authority effectively to recommend hire or discharge do not responsibly direct work of
others and spend almost all of their time performing rank and file work' were nonsuper
visory employees ( id footnote 16)
.1520 DECISIONS .OF NATIONAL LABOR RELATIONS BOARD
. Respondent challenges the inclusion, of Thomas Bleau in the appropriate unit.
The record shows that Bleau was on active duty in the Marine Corps and, was sta-
tioned at Camp Pendleton, California, near Oceanside. During a 4-month period
from about December 1964 to about April 1965, Bleau worked an average of 2 or
3' days each week for the Respondent, sometimes 4 to 41/2 hours a day, sometimes
a full shift. There was no work schedule for Bleau. He worked if there was work
for him to do and if working did not conflict with his duties as a marine. In Haag
Drug Company, Incorporated, 146 NLRB 798, the Board sustained a challenge to
the eligibility of an employee who had a full-time job elsewhere but worked for the
employer on scheduled days, provided this did not interfere with his other job. The
Board held that the employee was an intermittent or irregular part-time worker
and not eligible. Similarly, in Doran Nut Sales Company, 102 NLRB 1437, the
Board excluded from the appropriate unit a female employee who for several
years had worked for the employer if work was available and if it did not conflict
with her domestic duties. The Board concluded that she was a "casual" employee
and excluded her from the appropriate unit. In view of the foregoing, I find and
conclude that Bleau was a casual employee and should be excluded from the ap-
propriate unit, leaving a total of 22 employees in the appropriate unit.
On January 15, four of Respondent's employees, Moses, Craig, Thompson, and
Casebolt, had been and were dues-paying members of the Union. In addition it had
membership applications from 9 other employees,12 making a total of 13. Respond-
ent contends that none of the applications for membership should be considered as
authorizations to the Union to 'represent the signers because the application forms,
unlike authorization cards, contained no language which designates the Union as
collective-bargaining representative. This contention was laid to rest in the early
days of the Board's history (Sunshine Mining Company, 7 NLRB 1252, 1261-1262,
enfd. 110 F.2d 780 (C.A. 9)) and has been consistently followed by the Board
and the courts since that time. See, e.g., Food Machinery Corporation, 41 NLRB
1428, 1445-1456; Lebanon Steel Foundry v. N.L.R.B., 130 F.2d 404, 407
(C.A.D.C.), cert. denied 317 U.S. 659; N.L.R.B. v. Consolidated Machine Tool
Corp., 163 F.2d 376, 378 (C.A. 2), cert. denied 332 U.S. 824; Freeport Marble &
Tile Co., Inc., 153 NLRB 810.13
,Respondent next argues that the applications were not valid authorizations because
they were subject to a condition precedent, i.e., that Mason, president of the Union,
told the signers that "the Union would represent them at the time we had a sub-
stantial majority.. .. and Respondent compares this situation with that involved
in Englewood Lumber Co., 130 NLRB 394. The argument must be rejected. The
Union could not represent the employees in an appropriate unit unless and until it
secured authorizations from a majority. This is a condition imposed by the Act
is Jochheim, Neal, Metzger, Bowman, Agneta, Harrington, Kopp, David Wanner, and
Smith. Bleau's application is not counted because he has been excluded from the appro-
priate unit.
is Respondent recognizes that the Freeport case holds that an application which does not
contain an express "authorization" is a valid designation of the Union as a collective-
bargaining representative It seeks to dispel the force of that case, however, by pointing
out that there was evidence in that case that when the employees signed the applications
they were told that "the purpose of the card was to join the Union and thereby authorize it
to represent them." The language quoted by the Respondent is from the Trial Examiner's
Decision in that case and was made in an entirely different context, viz, at the bottom
of the application appeared the following statement : "No obligation if no election, or if
Stone Cutters failed to win the Election." After quoting and citing cases supporting the
general rule that "The signing of an application for membership in a labor organization
in itself constitutes a designation of that organization as a bargaining agent," the Trial
Examiner ruled that the language at the bottom of the applicaion "is not inconsistent with
granting the Union immediate authority to represent the signatories to the cards, and
does not per se invalidate the cards for authorization purposes." The Trial Examiner in-
troduced the language relied upon by the Respondent by saying : "At most, it might inject
an element of ambiguity in construing the cards, which could be clarified by evidence of
the factual circumstances attending their signing " The applications in the instant case
did not contain any language which might raise any ambiguity as to the purpose and effect
of the application.
BLADE-TRIBUNE PUBLISHING CO 1521
and was not a deviation from the authority represented by the applications The
Englewood Lumber Company case is manifestly inapplicable The rule there laid
down is that authorizations are not valid if the signers are told that the only pur-
pose of the cards was to secure a Board-conducted election See , e g , Cumberland
Shoe Corp, 144 NLRB 1268, amended by unpublished order dated January 13,
1946, enfd 351 F 2d 917 (CA 6), Hamburg Shirt Corporation, 156 NLRB
511, S N C Manufacturing Co, Inc, 147 NLRB 809, 822, enfd sub nom Int'l Un
of Elec, Radio & Machine Wkrs v N L R B, 352 F 2d 361 (C A D C ), cert denied
382 U S 902
Respondent next contends that the applications of the following employees should
be excluded David Wanner, Eugenia Wanner, Ronald Kopp, Keith Neal, Michael
E Bowman, John Jochheim, and Richard B Metzger These contentions will now
be discussed
David Wanner's application is dated January 14 Respondent contends that David
Warmer's application should not be considered as a valid authorization for two reasons
First, Respondent challenges the date on which it was signed, and points to Wan-
ner's testimony that he was not sure whether he had signed it before his interview
with Braden or shortly thereafter, "but it was within 2 weeks, either way of that
date " Respondent, however, ignores Warmer's subsequent testimony that the appli-
cation was filled out in his presence by Mrs Marcum who witnessed his signature
and that when he signed it "I believe the date was on there, and is correct" In
addition, Union President Mason testified credibly that he had David Wanner's
application on January 14
The second basis for Respondent's contention that David Wanner's application
should not be considered as a valid authorization is the fact that David Wanner
admittedly had given Respondent 3 months' notice in December 1964, that he was
quitting, and therefore his application was signed after his decision to quit The
fact that Wanner prior to signing his application had announced his intention to
quit at a future date did not affect the validity of his application as an authoriza-
tion of the Union Wanner was regularly employed by Respondent when he signed
the application and, as a matter of fact, was still employed by the Respondent at
the time of the hearing, almost a year after he had signed the application Pre-
sumably, he had changed his mind about quitting Squarely in point is the case of
Personal Products Corporation, 114 NLRB 959, where an employee's vote was chal-
lenged on the ground that prior to the election she had given notice to the employer
of her intention to terminate her employment 2 days after the election The Board
held "The Board has held that the fact that an employee intends to quit after an
election, and does in fact quit, does not affect his eligibility to vote" (Id at page
961 ) See also Otarion Listener Corp and its Subsidiary Audio Electronics Co,
124 NLRB 880, 881
Eugenia Wanner's application is also dated January 14, and according to Union
President Mason was signed on that date Respondent contends that Mrs Wanner
signed her application after the Union 's demand on January 15, and points to Mrs
Wanner's testimony that when she was interviewed by Braden after he received the
Union's demand, she had not yet signed an application, that, in answer to the General
Counsel's question , she was unable to say whether she signed the application on
January 14, the date appearing thereon, and that at the time she signed it she did
not understand its significance I am satisfied that Mrs Wanner did sign her applica-
tion on January 14 In addition to the testimony of Union President Mason which
I credit, it is clear from David Warner's testimony that Mrs Wanner (then Miss
Smith) was present at the Miramar Motel , which the Union was using as its tem-
porary headquarters , on January 14, when he signed his application 14 I consider
unreliable Mrs Warmer's testimony that she signed the application after her inter-
view by Braden Mrs Warmer's memory was obviously poor Nor do I place any
credence in her testimony that she did not understand the significance of the appli-
cation which she signed Mrs Wanner could hardly be considered to be illiterate
14I attach no significance to the fact that David Wanner testified merely that Mrs
Wanner was present at the Union's headquarters when he signed the application, and did
not testify that he saw her sign David Wanner preceded his wife on the witness stand,
-hence there was no occasion at that time for the General Counsel to interrogate him
regarding Mrs Wanner ' s signing
2 6 4-188-67-vol 161-97
1522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
She is a professional proofreader . Accordingly , I find and conclude that Mrs. Wan-
ner signed her application on January 14, and that it was a valid authorization of
the Union as her collective -bargaining representative.15
Ronald Kopp 's application is dated January 14. Respondent contends that Kopp's
application should not be considered a valid designation because Kopp testified
that Union President Mason told him that the purpose of the application was "just
to see how he would stand if there was an election brought up ." I do not credit
this testimony. Kopp did not appear to be a reliable witness. He first denied signing
an application , then admitted it, explaining that he did not know it was an appli-
cation. Yet the application contained the date and place of his birth and listed his
wife's name as beneficiary as well as her address-information which Kopp admit-
tedly gave to Mrs. Marcum who filled out the application . Furthermore , Kopp's
testimony in this regard is uncorroborated . He testified that employees Harrington,
Bowman , and Casebolt were present. None of them were called to corroborate
Kopp . To the contrary , it is clear from the testimony of Harrington that Mason
explained that the application was what it clearly purported to be-an application
for membership in the ' Union , thus corroborating the testimony of Mason . In sum,
I find and conclude that there was no misrepresentation made to Kopp when he
signed the application and that the application is a valid designation of the Union
as the collective -bargaining representative.
Respondent challenges the validity of the applications signed by Keith, Neal,
Michael E . Bowman , John Jochheim , and Richard B. Metzger on the ground of
staleness . In addition , these applications , except Neal's, are challenged because of
lack of identification . Insofar as identification is concerned , the applications of
Bowman , Jochheim , and Metzger were properly identified by Union President
Mason , and Metzger 's application was also identified by International Representa-
tive Prairie . Moreover, they were received in evidence without objection by the
Respondent . Accordingly , the contention that these applications were not properly
identified must be rejected.
Turning now to the contention that the foregoing applications should not be con-
sidered as valid authorizations because of staleness , Respondent points out that
Bowman 's application was dated February 12, 1964 , Metzger's February 11, 1964,
Jochheim 's July 31, 1963 , and Neal 's April 4 , 1963 . 16 The General Counsel, on the
other hand , contends that these applications may not be considered as stale
because of the intervention of an unfair labor practice charge by the Union against
the Respondent , its investigation , and subsequent settlement , which interrupted the
Union 's organizational campaign . In this connection , I was asked to take official
notice of the records of the Board showing that a charge was filed against the
Respondent in Case 21-CA-5854 on March 26, 1964, alleging violations of Section
8(a)(1) and (3) of the Act; that such charge was settled by a settlement agree-
ment entered into between the Respondent and the Union on or about June 16,
1964 ; that the settlement agreement was approved by the Regional Director on or
about June 26, 1964 . The settlement agreement provided for the posting of a notice
in which the Respondent stated that it would cease and,desist from any violations
of Section 8(a) (1) of the Act. The settlement agreement contained a disclaimer
by the Respondent ; i.e., Respondent by signing the agreement did not admit any
violation of the Act. I was asked to take official notice of the foregoing proceeding
only for the purpose of establishing the viability of the applications, and I
announced that I would do so for that limited purpose .- Accordingly , I do take
official notice of the foregoing proceeding which sets forth the information I have
detailed above.
15 Respondent relies upon Conso Fastener Corpoi ation, 120 NLRB 532 , but that case
is clearly distinguishable from the facts of the instant proceeding . Unlike the instant case,
the card of the employee in question was not dated , and the employee testified that she
did not remember when she signed the card but that another employee saw her sign and
two other employees signed at the same time . The employee she identified as having seen
her sign had been active in distributing cards but did not remember receiving a card from
her, and the General Counsel did not introduce any card signed by the other two employees
whom she had identified as signing at the same time . In sum ,, unlike the instant case , there.
was no corroborating evidence which would enable the Board to determine when she signed,
the card
19 In addition , Respondent contends that Neal's application was not signed during an,
organizational campaign at the Blade -Tribune and that he had told Union President Mason
during the organizational campaign that he could not support the Union at the Blade-
Tribune. This contention is fully discussed infra
BLADE-TRIBUNE PUBLISHING CO. 1523
The Board has held that "[i]n the absence of further proof of desires concerning
representation of the employees whose cards are in evidence, only signed cards
dated within a reasonable time prior to the dates on which the . . . [Union]
alleges the respondent refused to bargain with it, can be accepted by us as evidence
of designation of the . . . [Union] by such employees" (Surpass Leather Company,
21 NLRB 1258, 1273). The Board did not define the term "reasonable time." It
would appear from Luckenbach Steamship Company, Inc., 12 NLRB 1330, 1343-
1344, that a 1-year period is considered to be a reasonable time. Also, the Board
has considered as valid designations which were made during the same organiza-
tional campaign, where such campaign has been interrupted by unfair labor prac-
tices. Knickerbocker Plastic Co., Inc., 104 NLRB 514, 529-530.
Two of the applications here involved, Metzger's and Bowman's were signed
within 1 year prior to the date that the Union demanded recognition.17 Further-
more, it is clear from the discussion in Knickerbocker Plastic Co., Inc., supra, that
the rule of "reasonable time" is inapplicable where the cards are found to have
been signed during the same organizational campaign which had been interrupted
by the employer's unfair labor practices. See The Grand Union Company, 122
NLRB 589, 590, footnote 1.18 In the instant case, it appears that the Union's
organizational campaign had been interrupted by alleged unfair labor practices
which were the subject of a charge filed by the Union. As previously noted, that
charge was settled by the posting of a notice by the Respondent. Although
Respondent in its settlement agreement did not admit the commission of any unfair
labor practices, I see no difference between the interruption of an organizational
campaign by proof of actual unfair labor practices and interruption by proof of
the filing of a charge for alleged unfair labor practices which charge was there-
after settled. In either event, the campaign has been interrupted and, when con-
tinued thereafter, cannot be considered as a new and different campaign. To hold
otherwise would compel the General Counsel to try an issue not present in the
case, viz., alleged unfair labor practices which interrupted the campaign, where the
signers of the applications or other designations were unavailable to testify as to
their continued allegiance to the Union.
Accordingly, I find and conclude that Bowman's and Metzger's applications were
viable when the Union made its demand for recognition and should be counted
Jochheim's application was dated July 31, 1963. He did not testify in the pro-
ceeding. Under the rule laid down by the Surpass case, it would appear that his
application was stale. The General Counsel, however, argues that Jochheim's
application should be considered as viable because on August 6, 1965, he com-
pleted the requirements for membership and was "obligated" on that date.19 Joch-
heim's action in completing the requirements for membership lends some support
to the presumption of continued viability of the application. However, under all
the circumstances I consider his action occurring some 7 months after the Union
had made its demand as being too remote in time to demonstrate his continued
adherence to his designation of the Union as collective-bargaining representative at
the critical date. Accordingly, I do not count Jochheim's application as validly
designating the Union at that time.
The situation involved in Neal's application is different from the others. Neal's
application is dated April 4, 1963, at a time when he was seeking employment at
a newspaper in San Diego. Thereafter, he completed all the requirements for mem-
bership and his application was acted on favorably by the Union's committee. The
17 In addition, Bowman testified on'behalf of the General Counsel and did not repudiate
his application. This circumstance, in itself, would qualify his application as a proper
designation within the rule laid down in Surpass Leather Company, supra, where the
Board specifically noted that the rule concerning "a reasonable time prior" to-the date'ot
the demand applies "[i]n the absence of further proof of desires concerning representation
of the employees whose cards are in evidence."
16 Although the designations in The Grand Union Company, supra, were not considered
as valid designations, the decision does not support Respondent's view in this case for the
reason that the five employees whose cards were not considered valid designations "testified
that they did not wish the Union to represent them in the 1956 campaign" (id at
page 590) This distinction was recognized in Greenfield -Components Corporation, 135
NLRB 479. 490
19 "Obligated" is a word of art used by the Union to indicate the taking of the oath of
membership Presumably, this occurred after Jochheim left the employ of the Respondent,
in view of the Union's policy not to require applicants to complete the requirements
for membership while employed in a nonunion shop.
1524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
only thing that remained for Neal to do in order to become a full-fledged member
of the Union was to take the oath. He testified that his failure to become obligated
was due to the fact that "it had slipped my mind."
Neal testified that he had told Union President Mason at the Miramar Motel
that he "couldn't in good conscience support this move that we were making .. .
I didn't think the place was ready for a union shop." Mason denied that the con-
versation occurred. I have credited Mason in other respects and I do so in this
instance in view of the following circumstances:
On or about February 8, the Union was showing a film of its training center
in Colorado Springs. Neal and others had been invited to see the film. Neal came
and, while he was there, Mason remembered that Neal had paid his full member-
ship initiation fee which was substantially in excess of the amount paid under
"amnesty." 20 Mason pointed out to Neal that it was not proper that he should
pay more than the other applicants and that he would see about returning to Neal
the difference between the amnesty fee and the regular membership initiation fee.
Neal thanked Mason for his consideration of the matter. Thereafter, Mason had
the Union execute a check to Neal for the difference and delivered it to Neal who
admittedly accepted it. Mason told Neal that the remainder of $13.75 (the amnesty
fee) would remain on application, and Neal said "that is fine." 21 Neal testified
that in his conversation with Mason, "I asked for the difference between the initial
fee and amnesty fee," and that he did receive the refund. He admitted that he did
not ask that the amnesty fee be returned to him. The foregoing occurred during the
Union's negotiations with Respondent for recognition, and therefore may properly
be considered as evidencing Neal's continued adherence to his application for mem-
bership in the Union. While such adherence is not necessarily inconsistent with his
alleged statement to Mason that he could not support the Union in this instance,
it is more consistent with, and tends to support, Mason's denial that Neal so
informed him. Accordingly, I find and conclude that Neal's application for mem-
bership was viable when the Union demanded recognition and should be considered
as a valid designation of the Union as collective-bargaining representative.
In view of all the foregoing, I find and conclude that on January 15, the appro-
priate unit consisted of 22 employees (excluding Foreman Wells and Bleau) and
that the Union represented 13 employees in the appropriate unit, a clear majority.
3. Respondent's alleged good-faith doubt as to the appropriate unit
Respondent contends that when the Union sought recognition and bargaining, it
had a good-faith doubt as to the appropriateness of the unit suggested by the
Union; i.e., the mechanical department. Respondent first raised the issue as to the
appropriateness of the unit in its counsel's letter to the Union, dated February 11 22
In the Union's reply of March 9 (by its counsel), the Union unequivocally informed
the Respondent that it would consent to an expeditious procedure for determining
its majority status "in the traditional composing room unit." The Union thus indi-
cated its acquiescence to the unit suggested by the Respondent. At this point, the
Respondent retreated to its position that the Union did not represent a majority
in the composing room unit. The Union's willingness to, stake its claim on the unit
suggested by the Respondent, viz., the composing room, effectively disposed of
whatever doubts the Respondent may have entertained when the Union first, made
its demand. Certainly at that point, whatever doubts the Respondent may have
entertained as to the appropriateness of the unit were no longer a factor in its
refusal to bargain with the Union. Moreover, as discussed above, the Respondent
eventually entered into a consent agreement for an election involving an appro-
priate unit consisting of "the composing room department and the press-stereotype
20 "Amnesty" is a procedure of the Union by which during an organizational campaign
employees may become provisional members of the Union. Under amnesty, an employee
pays a fee which is much less than the regular initiation fee and is not required to pay
dues until the shop is organized, when he becomes a full member.
21 The foregoing is the credited testimony of Mason.
E' On brief, Respondent suggests that it raised the issue in Braden's letter of January 20,
where he took the position "that the Union should be certified by the National Labor Rela-
tions Board as the collective-bargaining representative of our employees in an appropriate
collective-bargaining unit." I do not read Braden's letter of January 20 as questioning
the appropriateness of the unit
BLADE-TRIBUNE PUBLISHING CO. 1525
department," the unit suggested by the Union when it first sought recognition and
bargaining. In view of all of the above, I find and conclude that whatever doubt
Respondent may have had as to the appropriateness of any unit suggested by the
Union did not relieve it of its obligation to bargain with the Union.
4. Whether Respondent had a good-faith doubt as to the Union's majority
Respondent contends that, as set forth in its correspondence with the Union, it
had a good-faith doubt that the Union represented a majority of its employees.
The General Counsel and the Charging Party, on the other hand, contend that
Respondent did not have a good-faith doubt as to the Union's majority, but engaged
in a course of action that was designed to undermine the Union and provide at
the same time a setting for its defense.
In its recent decision in Aaron Brothers Company of California, 158 NLRB
1077, the Board has made it clear that:
Absent an affirmative showing of bad faith, an employer, presented with a
majority card showing and a bargaining request, will not be held to have
violated his bargaining obligation under the law simply because he refuses to
rely upon cards, rather than an election, as the method for determining the
union's majority.
Here, the Trial Examiner, in effect, found that good faith was missing
because Respondent did not offer any evidence "warranting a conclusion that
the Union's claim [of majority] was inaccurate or unsupportable." But where,
as here, there is no prior bargaining relationship between the parties, as the
Board recently held in John P. Serpa, Inc., it is the General Counsel who
must come forward with evidence and affirmatively establish the existence of
such bad faith.
Whether an employer is acting in good or bad faith in questioning the
union's majority is a determination which of necessity must be made in the
light of all the relevant facts of the case, including any unlawful conduct of
the employer, the sequence of events , and the time lapse between the refusal
and the unlawful conduct. Where a company has engaged in substantial unfair
labor practices calculated to dissipate union support , the Board, with the
courts' approval, has concluded that employer insistence on an election was
not motivated by a good-faith doubt of the union's majority, but rather by a
rejection of the collective-bargaining principle or by a desire to gain time
within which to undermine the union. However, this does not mean that any
employer conduct found violative of Section 8(a)(1) of the Act, regardless
of its nature or gravity, will necessarily support a refusal- to-bargain finding.
For instance, where an employer's unfair labor practices are not of such a
character as to reflect a purpose to evade an obligation to bargain, the Board
will not draw an inference of bad faith.
On the other hand, an employer's bad faith may also be demonstrated by
a course of conduct which does not constitute an unfair labor practice 23
In view of the foregoing, it is pertinent at this point to analyze Respondent's
conduct between the time of the Union's demand for recognition and bargaining,
and the election.
5. Interrogation of employees in Braden's office
As previously noted, when Braden received the Union's, telegraphic demand for
recognition, he called a meeting of the employees, at which he expressed his opposi-
tion to the Union. He then wrote his letter of January 20 to the Union in which he
stated his doubt that the Union represented a majority. Following the sending of
this letter, Braden interviewed approximately half of the Respondent's work force
in his office "to confirm the doubt that . .. [he] had expressed in . . . [his] letter
of January 20." 24 These interviews were conducted by Braden in accordance with
21 Footnotes omitted. See also, John P. Serpa, Inc., 155 NLRB 99.
24 In this connection, it would appear that Braden's conduct in interviewing the em-
ployees negates the genuineness of his expressed doubt as to the Union's majority. For a
person who has a genuine doubt would not need to "confirm" that doubt by interrogating his
employees as to their designation of the Union as their collective-bargaining representative.
1526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the advice of counsel with a view of qualifying them under the Blue Flash doc-
trine 25 The General Counsel and the Charging Party contend that these interviews
were coercive. Respondent argues that they come within the purview of Blue Flash.
For the reasons set forth below I am of the opinion that the rationale of Blue
Flash is inapplicable.
First, in Blue Flash the employer conducted the interrogation "in order to enable
him to reply to the Union's request for collective bargaining" (109 NLRB at page
592). In the instant proceeding, the Respondent had already informed the Union
that it would not recognize or bargain with it, and the admitted purpose of the
interrogation was to "confirm the doubt" that Respondent had expressed in its
letter to the Union. This is not a legitimate purpose for interrogation. See P-M
Garages, Inc., et al., d/b/a P-M Packing System, 139 NLRB 987, 988, where
interrogation "not all confined, in point of time, to the period before it [the
employer] replied to the Union denying the bargaining request" was found to be
not for a legitimate purpose. To the same effect, see Henry I. Siegel Co., Inc., 143
NLRB 386, 387, footnote 1; General Electric Company, 143 NLRB 926, 929, 931.
Second, the test laid down by Blue Flash is "whether, under all the circum-
stances, the interrogation reasonably tends to restrain or interfere with the employ-
ees in the exercise of rights guaranteed by the Act" (109 NLRB at 593). In that
connection, "the time, the place, the personnel involved, the information sought and
the employer's conceded preference . . . must be considered" (id. at 594, quoting
from N.L.R.B. v. Syracuse Color Press, Inc., 209 F.2d 596). As to the place of
the interrogation, it occurred in Braden's office to which the employees were sum-
moned singly by their foremen. The formality of this procedure is in sharp con-
trast to the otherwise informal relationship which Braden claimed he had with his
employees:
I see the fellows at the Blade-Tribune frequently. We play touch football
on the beach on Sunday afternoons. We have parties. I go to the back shop,
and we have coffee together. I talked to them on the Linotype machine. They
come over to my house with problems they have.
Even before the interviews, Braden has already made clear to the employees at the
group meeting his opposition to the Union , and this was reiterated in some of the
interviews , witnesseth: Braden 's statement to employee Messinger that "he figured
that his plant should be run the way he saw fit to run it"; Braden's statement to
employee Agneta : "What in the heck is the idea of these dragging people over to
the Miramar with the Union men that was there"; Braden's question to David
Wanner: "Why would I kick him in the teeth . . . just before I left," when Wan-
ner told Braden that he was in favor of the Union; and Braden's statement to
Harrington that he did not think that the Blade-Tribune needed a union at the
time. In addition, Braden held out the promise of possible pay raises to employees
Bowman and Harrington when he indicated to them that he would see what he
could do about granting them pay raises, and asked employee Agneta whether he
was happy with the wages and whether he was concerned about pay raises 26 The
coercive nature of the interviews is further illustrated by the fact that , when asked
by Braden whether they had signed a card for the Union, two of the employees,
Harrington and Agneta , replied in the negative although both had signed applica-
tions. While this factor is not conclusive, it is a circumstance to be considered with
the others mentioned above.27
It is true that Braden told each of the employees "that anything that I ask was
not to be taken in any coercive manner, and that they needn't answer me if they
did not want , and if they answered me or did not answer me , they were still going
to be my friends and employees at the newspaper ." However , as was pointed out in
25 Blue Flash Express, Inc ., 109 NLRB 591.
26 "[I]nterference is no less interference because it is accomplished through allurements
rather than coercion . . . ." (Western Cartridge Co v. N L R B., 134 F.2d 240, 244 (C.A.
7), quoted with approval in Joy Silk Mills v. N.L R B , 185 F.2d 732, 739 (C A D.C.),
cert. denied 341 U S. 914). "The fact that the interrogation did not contain threats of
reprisal or promises of benefit did not detract from its otherwise unlawful character"
(Charlotte Union Bus Station, Inc, 136 NLRB 228, 229) A fortiori, where, as here,
the interrogation contained promises of benefit, it is clearly unlawful
27 Bonnie Bourne, an individual d/b/a Bourne Co v N L R B., 332 F 2d 47, 48 (C.A.
2) ; N.L.R.B v. Firedoor Corporation of America, 291 F.2d 328, 331 (CA. 2), cert denied
368 U.S. 921; N L R B v. Cameo, Incorporated, 340 F 2d 803, 804 (C A 5)
BLADE-TRIBUNE PUBLISHING CO. 1527
an excellent discussion of this matter in International Ladies Garment Workers'
Union, AFL-CIO, 142 NLRB 82 at 114 (quoting from the Intermediate Report
in The Southland Corporation, Case 5-CA-2051, by Trial Examiner Arthur Leff) :
"But neither does the Board woodenly confine itself to rigidly formulated rules .. .
in determining whether given interrogation is lawful or unlawful." Thus, the mere
fact that Respondent followed the formula utilized in Blue Flash does not ipso facto
make the interrogation lawful. At most, it can "be argued that the communicated
purpose and, accompanying safeguards designed to assure employee understanding
are countervailing circumstances to be weighed in the balance in determining
whether the particular interrogation involved reasonably had a tendency to coerce."
(Id. at 114-115. Emphasis in text.) In view of all the foregoing, I find and
conclude that, although Braden sought to make the interviews appear innocuous
by following the formula set forth in Blue Flash, they were nevertheless coercive
in character and reasonably had a tendency to coerce the employees. I therefore
find and conclude that Braden's interrogation of his employees was violative of
'Section 8(a) (1) of the Act 28
6.' Respondent's luncheon meetings
As previously noted, following the agreement for consent election, Braden
took most of Respondent's employees either singly or in pairs to lunch at the
Miramar Motel restaurant. During these luncheons, Braden admittedly asked the
employees "what they thought of the union, or whether they thought we ought to
have a union." While lunching with employees David Wanner and Metzger, Bra-
'den said that he thought it would be possible in the_ -near future to work out a
pension plan for the employees which would be as good as the Union's plan. Also,
during his luncheon with Bowman, Braden made reference to a pay increase that
Bowman would receive.
The General Counsel characterizes these luncheons as the Respondent's "benefi-
cence before the election." I do not regard Braden's act in taking employees to
lunch as a favor of such great magnitude as would, in itself, constitute interfer-
ence or coercion within the meaning of Section 8(a)(1) of the Act, despite the
fact that the luncheons lasted in excess of the normal 30-minute lunch period and
the employees were not docked for the extra time taken for the lunch. In a much
stronger case, Agawam Food Mart, Inc., d/b/a The Food Mart, 158 NLRB 1294,
the Board held that a dinner meeting held by the employer 2 days before the
election, for which the employer provided transportation and which the employees
were paid for attending , was not held to be violative of Section 8(a)(1) of the
Act. However, Braden 's admitted questioning of the employees as to "what they
thought of the union," coupled with his reference to Bowman of a pay raise and
21 In this connection, Respondent relies upon several cases which are clearly distinguish-
able In Cameo Lingerie, Inc., 148 NLRB 535, the Board found that a poll of employees'
sentiment taken by Respondent some 3 months after the Union's original demand for
recognition was undertaken in uncoercive circumstances for the express purpose of deter-
mining the validity of the Union's claim to majority status in the face of the Union's
refusal to agree to a consent election or to permit investigation into the circumstances
-surrounding the signing of the cards. In that case, the poll was prompted by the fact that
a number of employees had told the employer that they had been coerced into signing
cards and did not want the Union to represent them. In discussing with the Union a possi-
ble card check, the employer sought to provide some means whereby those conducting the
-check could investigate the circumstances under which the employees had signed the cards.
The employer's efforts proved to be unproductive ; hence the poll Likewise in Struksnea
'Construction Co , Inc, 148 NLRB 1368, the employer after receiving the Union's request
for recognition and before taking a position thereon inquired of the Union the number of
-employees the Union represented and the dates on which they had joined The Union replied
giving the number of employees represented but dad not reply to the inquiry about the
dates of joining In holding that the employer did not violate the,Act, the Board pointed
-out that the Union had been relying upon the membership of employees who had joined the
Union years before the demand for recognition and some of these were delinquent in their
dues payments moreover, the employer did not conduct the poll until after the Union had
declined to answer its inquiry concerning the dates on which the members had joined
in C. L Frank, Inc, 149 NLRB 350, and Mrs Dora S. Lanthier, and Ledger W Lanthier,
'Co-partners, d/b/a Lanthicr Machine Worbs, 116 NLRB 1029. the interrogation complained
-of occurred before the employers had refused to recognize the unions involved
1528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his statement to David Wanner and Metzger of a possible pension plan , particu-
larly when considered in the light of Respondent 's other unfair labor practices,
constituted interference , restraint , and coercion within the meaning of Section
8 (a)( 1 ) of the Act, and I so find
7 The discriminatory treatment of employee Agneta
Respondent attempts to justify the change of work schedule for Agneta on the
ground that Foreman Wells considered Agneta to be an apprentice and changed
the schedule so that Agneta could work along with Paul Jones, an experienced
journeyman compositor in the "ad alley " The proffered explanation evades the
crux of the issue which is that Agneta, who was known to Braden to be active
in the Union's organizing campaign , was given a schedule which required him to
"double back", i e, work from 3 to 11 p in on Thursday and 7 a m to 3 p in on
Friday Jones, under whose direction Agneta was supposed to work did not work
from 3 to 11 pm on Thursdays Nor did the Respondent offer any explanation
as to why Agneta was scheduled to work in the afternoon and evening on Thurs-
days other than the generalization that the workload required it But there is no
showing that Respondent's workload was such as to need Agneta on the second
shift on Thursdays Furthermore, although Respondent's witness Jones admitted
that he had once worked on a double back schedule for another paper, he testi-
fied unequivocally that he did not deem such a schedule to be desirable, nor did
he think it would be particularly helpful in the training of an apprentice
As previously noted, no one in Respondent's employ had prior thereto been
required to double back, and Agneta was the only employee who was given such
a schedule Moreover, when he complained about the schedule to Foreman Wells,
he was in effect told that he could work the schedule or quit In sum, I find and
conclude that the reason advanced by the Respondent for the change in Agneta's
schedule was not the true reason therefor, but that the true reasons were (1) to
make it undesirable for Agneta to continue to work for the Respondent and
thereby Respondent would rid itself of an active union adherent, and (2) to serve
notice on all the other employees that adherence to the Union would result in
reprisal Accordingly, I find and conclude that Respondent's action in changing
Agneta's work schedule was violative of Section 8(a)(1) of the Act
8 The effect of the Respondent's unfair labor practices as bearing upon
its alleged good-faith doubt as to the Union 's majority
As noted in Aaron Brothers Company of California, supra, "[w]hether an
employer is acting in good or bad faith in questioning the union's majority is a
determination which of necessity must be made in the light of all the relevant facts
of the case, including any unlawful conduct of the employer, the sequence of
events, and the time lapse between the refusal and the unlawful conduct " Here, the
Respondent's unfair labor practices began immediately after the Union's request
for recognition and continued until 2 days before the election Respondent's con-
duct was clearly "calculated to dissipate union support " (Aaron Brothers, supra) 29
I therefore find and conclude that Respondent refused to recognize the Union for
the express purpose of gaining time to undermine the Union's majority, and
thereby violated Section 8 (a) (5) of the Act
Respondent contends that the violations of Section 8(a)(1) do not constitute
the kind of deliberate egregious conduct that the General Counsel is required to
prove in order to establish an earlier bad-faith refusal to bargain 30 Even if the
29 In view of the coercive nature of Braden's Interrogation Respondent cannot rely on
the answers which the employees gave during the inters iews
30 Respondent cites several cases in support of this contention These cases are readily
distinguishable from the instant proceeding Thus, in Hammond & Irving Incorporated
154 NLRB 1071, the Board held that the employer's conversations with 6 employees out
of a unit of 110 or 111 while unlawful were not so flagrant that they must necessarily
have had the object of destroying the Union's majority status In the instant proceeding
the appropriate unit consisted of 22 employees, and Respondent had admittedly interviewed
and interrogated 13 of them Also, the posting of the work schedule requiring Agneta to
"double back" was an oiert act the significance of which could not be lost by the other
employees Moreover, Foreman Wells made it clear to employee Messinger what the pur
pose of the change in Agneta's schedule was In Clei mont's, Inc and Amalgamated Meat
and Food Store Employees Local 59,0 AFL-CIO, 154 NLRB 1397, the Board pointed out
BLADE-TRIBUNE PUBLISHING CO. 1529
'foregoing acts, considered individually, might not be sufficient to indicate Respond-
ent's lack of good-faith doubt, nevertheless, as the Fifth Circuit pointed out in
another context, taken "collectively, the evidence supports a finding that they were
,part of a concerted effort" (Martin Sprocket & Gear Co. v. N.L.R.B., 329 F.2d
417, 419). Nor need the conduct be "egregious" as contended by the Respondent.
The Supreme Court has recognized that conduct "often subtle ... [may] restrain
the employees' choice" (International Association of Machinists, Tool and Die
Makers Lodge No. 35 v. N.L.R.B., 31f U.S. 72, 88). Also, as the Board explicitly
stated in the Aaron Brothers case, supra, "an employer's bad. faith may also be
,demonstrated ' by a course of conduct-which does not constitute an unfair labor
,practice."
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent' set" forth in-section IV, above, occurring in
connection with the business operations of Respondent set forth= in section I,
above,, have a close, intimate , and substantial relation to trade, traffic , and com-
merce among the several States and tend to lead to labor disputes -burdening and
obstructing commerce and the free'flow thereof. ' - -
VI. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices within
the meaning of Section 8(a)(1) and (5) of the Act I shall recommend that it
cease and desist therefrom and that it be ordered to bargain collectively with
the Union, upon request. .
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and
'upon the entire record in the case, I recommend that the Respondent , its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing , upon request , to bargain collectively with San Diego Typo-
graphical Union, Local 221, International Typographical Union, AFL-CIO, as
the exclusive representative of all the employees in the following appropriate unit:
All employees employed in the composing room department and press-stereotype
department in Respondent 's Oceanside plant, including craft foremen ; excluding all
other employees, office clerical employees, professional employees, guards, and
supervisors as defined in the Act.
that "the test of whether an employer , who commits violations of 8(a ) ( 1), refuses to
bargain because of an intent to undermine the Union, or otherwise defeat the employees'
unionization , is not a mechanical one ; all the circumstances of the case and the sequence
of events must also be considered ." The Board then pointed out that the employer's coercive
speech had occurred about 2 months before the Union's request for recognition , appeared
to have been an emotional outburst on first learning of the union organizational efforts,
and were never thereafter repeated in a like or related form. The Board further noted that
although the illegal surveillance of one employee by minor supervisors was violative of the
Act, the employer had immediately disavowed and condemned the surveillance, indicating,
as the Board found, that these minor supervisors were acting on their own responsibility.
Although, under the doctrine of respondeat superior, the employer was nevertheless held
responsible for the conduct of these minor supervisors, the Board did not consider
these incidents, in themselves, serious enough to support a finding that the Respond-
ent had earlier refused to bargain with the Union in order to gain time to undermine the
'Union by unlawful means. In the instant case, with the exception of Foreman wells' state-
ments , all of Respondent' s conduct was committed by Braden, himself, or, as in the case of
the change of work schedule, with Braden's knowledge and consent. Similarly, in Strydel In-
'corporated, 156 NLRB 1185, the coercive conduct was committed b3 a person characterized
by the Trial Examiner as a "minor supervisor," and although the conduct was attributable
to the employer as a matter of law, it could not be regarded as having the approval of
the employer or as reflecting the purposes of the employee to resort to such measures in
defeating the Union's recognition demands As pointed out above, this is not the situa-
tion in the instant proceeding. Likewise, in Harvard Coated Products Co , Division of
,Colonial Tanning Company, Inc., Subsidiary of Allied Company, 156 NLRB 162, threats
were made by the plant superintendent, after the employer's general manager had directed
him not to talk about the Union. Again, this bears no resemblance to the case at bar
1530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Questioning employees concerning their membership in San Diego Typo-
graphical Union, Local 221, International Typographical Union, AFL-CIO, or
any other labor organization of its employees, in a manner constituting interfer-
ence, restraint, or coercion within the meaning of Section 8 (a)(1) of the Act
(c) Interfering with, restraining, or coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act by discriminating against union
adherents in regard to any term or condition of employment
(d) In any like or related manner interfering with, restraining, or coercing its
employees in the exercise of their right to self-organization , to form, join, or assist
any labor organization , to bargain collectively through representatives of their
own choosing, and to engage in other concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection , or to refrain from any and
all such activities
2 Take the following affirmative action which is necessary to effectuate the
policies of the Act
(a) Upon request, bargain collectively with San Diego Typographical Union,
Local 221, International Typographical Union, AFL-CIO, as the exclusive repre-
sentative of the employees in the appropriate unit with respect to rates of pay„
wages, hours of employment, and other conditions of employment, and, if an
understanding is reached , embody such understanding in a signed agreement
(b) Post at its Oceanside plant copies of the attached notice marked "Appen-
dix " 31 Copies of such notice to be furnished by the Regional Director for Region
21, after being duly signed by an authorized representative of the Respondent, shall
be posted by said Respondent immediately upon receipt thereof and be maintained
by it for a period of 60 consecutive days thereafter, in conspicuous places includ-
mg all places where notices to employees are customarily posted Reasonable steps
shall be taken by said Respondent to insure that said notices are not altered,
defaced, or covered by any other material
(c) Notify the Regional Director, in writing, within 20 days from the receipt
of this Decision, as to what steps the Respondent has taken to comply herewith 32
ii If the Recommended Order of the Trial Examiner is adopted by the Board the fiords
"a Decision and Order" shall be substituted for the words "the Recommended Order of a
Trril Examinei " in the notice If the Board s Order is enforced by a decree of a United
States Court of Appeals, the notice shall be further amended by the substitution of the
words "a Decree of the United States Court of Appeals Enforcing an Order" for the Niords
"a Decision and Order "
32 If this Recommended Order is adopted by the Board, this provision shall be modified
to read `Notify the Regional Director for Region 21, in writing, within 10 days from the
date of this Oidei whit steps the Respondent has tal en 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 polices of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that
WE WILL NOT refuse, upon request, to bargain collectively with San Diego
Typographical Union, Local 221, International Typographical Union, AFL-
CIO, as the exclusive representative of our employees in the following appro-
priate unit
All employees employed in the composing room department and press-
stereotype department in our Oceanside plant, including craft foremen;
and excluding all other employees, office clerical employees, professional
employees, guards, and supervisors as defined in the Act
WE WILL NOT question employees concerning their membership in San Diego
Typographical Union, Local 221, International Typographical Union, AFL-
CIO, or any other labor organization or our employees, in a manner constitut-
ing interference, restraint, or coercion within the meaning of Section 8(a)(1)
of the Act
WE WILL NOT interfere with, restrain, or coerce our employees in the exer-
cise of the rights guaranteed in Section 7 of the Act by discriminating against
union adherents in regard to any term or condition of employment
LEVINSON'S OWL REXALL DRUGS, INC . 1531
WE WILL NOT in any like or related manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-organization, to form,
join, or assist any labor organization , to bargain collectively through repre-
sentatives of their own choosing, and to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid or protection, or
to refrain from any and all such activities.
WE WILL, upon request, bargain collectively with San Diego Typographical
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 conditions of employment and, if an understanding is reached , embody
such understanding in a signed agreement.
All of our employees are free to become or remain, or to refrain from becom-
ing, members of the above-named union or any other labor organization.
BLADE-TRIBUNE PUBLISHING 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, Eastern
Columbia Building, 849 South Broadway, Los Angeles, California 90014, Telephone
688-5229.
Levinson 's Owl Rexall Drugs , Inc. and Retail Store Employees
Union, Local 373, Retail Clerks International Association,
AFL-CIO. Case 0O-CA-3724. December 6, 1966
DECISION AND ORDER
On July 26, 1966, Trial Examiner Herman Marx issued his Deci-
sion in the above-entitled proceeding, 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 cer-
tain affirmative action, as set forth in the attached Trial Examiner's
Decision. The Trial Examiner further found that the Respondent
had not engaged in certain other unfair labor practices alleged in the
complaint and recommended that the complaint be dismissed with
respect to those allegations. Thereafter, the General Counsel and the
Charging Party filed exceptions to portions of the Trial Examiner's
Decision and briefs in support of their exceptions, and the Respond-
ent filed an answering 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 [Chairman McCulloch and Members Brown and Zagoria].
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
161 NLRB No. 133.