Fort Wayne Newspapers, Inc.

National Labor Relations Board - Board Decisions

Jan 23, 1980

247 N.L.R.B. 548 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fort Wayne Newspapers, Inc. and Fort Wayne
Typographical Union No. 78, a/w International
Typographical Union, AFL-CIO. Case 25-CA-
10197
January 23, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
On September 26, 1979, Administrative Law Judge
Irwin H. Socoloff issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and General Counsel filed an
answering brief in support of the Administrative Law
Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions' and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Fort Wayne Newspapers,
Inc., Fort Wayne, Indiana, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
said recommended Order.
I Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless the
clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
DECISION
STATEMENT OF THE CASE
IRWIN H. SOCOLOFF, Administrative Law Judge: Upon a
charge filed September 21, 1978, by Fort Wayne Typograph-
ical Union No. 78, a/w International Typographical Union,
AFL-CIO, herein referred to as the Union, against Fort
247 NLRB No. 85
Wayne Newspapers, Inc., herein called Respondent, the
General Counsel of the National Labor Relations Board, by
the Regional Director for Region 25, issued a complaint
dated November 22, 1978, alleging violations by Respondent
of Section 8(a)(5) and (1) and Section 2(6) and (7) of the
National Labor Relations Act, as amended, herein called the
Act. Respondent, by its answer, denied the commission of
any unfair labor practices.
Pursuant to notice, a hearing was held before me in Fort
Wayne, Indiana, on March 7, 1979, at which the General
Counsel and Respondent were represented by counsel and
were afforded full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce evidence. Thereaf-
ter, the parties filed briefs which have been duly considered.
Upon the entire record in this case, and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent is an Indiana corporation engaged at its Fort
Wayne, Indiana, facility in the printing and sale of newspa-
pers. During the year preceding issuance of the complaint, a
representative period, Respondent subscribed to interstate
news services and advertised nationally sold products. In
that same time period, Respondent's gross volume of
business was in excess of $200,000. I find that Respondent is
an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
Fort Wayne Typographical Union No. 78, a/w Interna-
tional Typographical Union, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
Following a Board conducted election, the Union was
certified on February 25, 1974, as the collective-bargaining
representative of Respondent's Fort Wayne, Indiana, mail-
ing room employees. Thereafter, the parties concluded
several collective-bargaining agreements, the most recent of
which expired on June 15, 1978. Prior thereto, on March 16,
1978, the Union requested that Respondent meet with it for
the purpose of negotiating a new contract. Such meetings
occurred on June 22, July 27, and August 17, 1978. A fourth
meeting was scheduled for September 21.
On September 15, 1978, Respondent filed an RM petition
with the Board, claiming a good-faith doubt as to the
continued majority status of the Union, based on the
following:
1. Respondent's receipt of a petition, signed by a
majority of the bargaining unit employees, indicating
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FORT WAYNE NEWSPAPERS, INC.
that the signatories no longer desired representation by
the Union;'
2. Advice received by Respondent, from Union
representatives, that only 9 of 26 bargaining unit
employees were members of the Union;2
3. Respondent's observation that, during the term of
the most recent contract, "the Union engaged in no
activity of a representational nature."'
By letters dated September 18 and 21, 1978, Respondent
advised the Union that it doubted the Union's continued
majority status and, therefore, would refuse to engage in
further negotiations until the issue raised by the RM Petition
was resolved.
In this case, the General Counsel contends that Respon-
dent violated Section 8(a)(1) of the Act by soliciting
employees to sign the aforementioned petition; promising
employees economic benefits if they signed that document
and conditioning the employment of one individual upon her
promise to refrain from supporting the Union. It is further
alleged that Respondent's refusal to bargain was in violation
of Section 8(a)(5). Respondent denies the 8(a)(1) allegations.
It further claims that its refusal to bargain was privileged by
its good-faith doubt of the Union's majority status which
arose from the factors advanced to support the RM petition.
B. Facts and Conclusions'
1. The Baker solicitation
Rosemary Baker began her employment in Respondent's
mailroom near the end of August 1978. She testified that,
about 1-Y weeks later, she went to Foreman Bhatty's office
for the purpose of securing her paycheck. At that time,
Bhatty admonished Baker concerning her failure, earlier
that week, to notify Respondent prior to an absence from
work. Baker then left the office and proceeded into the
corridor where, about a minute later, Bhatty caught up with
her and told her that he wanted Baker to sign a piece of
paper. Bhatty then handed the petition to Baker and told her
that "everybody was signing it" and that "it was just for a
record." Baker signed the petition, as instructed, and then
handed it back to Bhatty.
Charles Seybold, the draftsman of the petition, testified
that, in early September 1978 he observed Baker in Bhatty's
office and that, after she left the office, Bhatty obtained the
petition from Seybold and approached Baker. Later that
day, Bhatty returned the petition to Seybold. While the
petition did not contain Baker's signature at the time
Seybold handed it to Bhatty, Baker's signature did appear
when Bhatty returned the petition.
Bhatty, in his testimony, confirmed the payday conversa-
tion with Baker, in Bhatty's office, concerning Baker's
I That petition, containing the signatures of 15 of the 26 unit employees,
bears the legend: "We mailroom Employees, does not want I.T.U. in the
mailroom." It was presented to Respondent's production manager, Larry
Barr, on September 14 or 15, 1978.
2 As a defense to the instant refusal to bargain charge, this ground is
insufficient as a matter of Board law.
' At the hearing, Respondent abandoned this ground as a defense to the
8(aXS) allegation.
' Unless otherwise indicated, the factfindings contained herein are based
upon the testimony of former employees Rosemary Baker, Thomas Smith,
failure to notify Respondent about an absence from work.
Bhatty denied having a subsequent conversation with Baker
in the corridor and further, denied ever soliciting her
signature on the petition. As stated at footnote 4, I credit
Baker's testimony and, based thereon, I find and conclude
that Respondent, by soliciting Baker to sign the petition to
remove the Union, violated Section 8(a)(1) of the Act.
2. The Smith solicitation
Thomas Smith worked in Respondent's mailroom from
July until November 1978. He testified that, on September
8, he went to the office to receive his paycheck from Bhatty
and, at that time, Bhatty asked Smith if he wanted more
working hours. When Smith stated that he did desire
additional hours, Bhatty took him to the dock area where
Bhatty instructed Seybold to join them. After securing the
petition from Seybold, Bhatty asked Smith to sign it, and
Smith complied.' Bhatty then told Smith that he, Bhatty,
would try to get more working hours for Smith. While
uncertain of the details, Seybold, in his testimony, confirmed
that Smith and Bhatty approached the dock area together
and that Smith signed the petition in the presence of Bhatty.
Bhatty testified that a conversation with Smith occurred
on September 7, at which time Smith asked for additional
working hours and Bhatty replied that additional work was
not available. Bhatty denied ever asking Smith to sign the
petition. As noted at footnote 4, Bhatty's denial is not
credited. Based upon the credited testimony of Smith, I find
and conclude that Respondent violated Section 8(a)(1) of the
Act by soliciting Smith to sign the petition and by promising
Smith economic benefits if he did so.
3. The hiring of Goodmiller
Linda Goodmiller, a former employee, applied for reem-
ployment with Respondent during the first or second week
of October 1978. Initially, she testified, she was told by
Bhatty that there were no openings but that Bhatty would
talk to Production Manager Barr about the matter. Later
that day, Bhatty, by telephone, told Goodmiller that he had
talked to Barr and that Respondent could not offer her
reemployment. Nonetheless, Bhatty invited Goodmiller to
return to the office for further discussion. When Goodmiller
arrived, Bhatty again went to speak to Barr. Upon leaving
Barr's office, Bhatty told Goodmiller that, while Barr did
not like the idea, he, Bhatty, would rehire Goodmiller if she
promised that she would not join the Union. She agreed and
was then rehired.
Bhatty testified that when Goodmiller first sought reem-
ployment in October, he told her that there were no job-
openings and, that, he next spoke to her some days later, by
telephone, after an opening had developed. Thus, Bhatty
and Linda Goodmiller, all of whom impressed me as honest and forthright
witnesses. I have credited the testimony of former employee Charles Seybold
only to the extent his testimony was corroborated by that of Baker and Smith.
Thus, while I believe that Seybold sought to testify in a truthful manner, much
of his testimony was so confused and self-contradictory as to preclude reliance
thereon. Based on demeanor impressions, I have not credited the testimony of
Respondent's General Foreman of the mailroom. Tariq Bhatty.
' According to Smith, at the time he signed the petition there were eight or
nine other signatures thereon, but no legend.
549
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
claims, he invited Goodmiller to return to the office where
he rehired her, without consulting Barr and without any
mention of the Union.
As reported at footnote 4, I credit Goodmiller's version of
the events surrounding her rehiring and, on that basis, find
and conclude that Respondent violated Section 8(a)(1) of the
Act by conditioning her employment upon her promise not
to join the Union.
4. The refusal to bargain
Respondent's contention that its receipt of the antiunion
petition provided it with "objective considerations" justify-
ing a good-faith doubt of the Union's majority status and,
thus, privileged its subsequent refusal to bargain, is rejected.
In a unit of 26 employees, 15 purportedly signed the petition.
Two of the employee signatures were directly solicited by
Respondent's supervisor, Bhatty, and those acts occurred in
the presence of a third employee, Seybold, the draftsman of
the petition. Prior to the solicitation activities of Bhatty, the
petition had been signed by only six employees. In addition,
Bhatty promised one employee, Smith, economic benefits if
he signed the petition. The petition, thus tainted by
Respondent's unfair labor practice conduct, cannot serve to
justify its refusal to bargain with the certified representative
of the mailroom employees. I find and conclude that, in
refusing to bargain with the Union, Respondent violated
Section 8(aXS) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with its operations described
in section I, above, have a close, intimate and substantial
relationship to trade, traffic, and commerce among the
several states and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(aXS) and (1) of the
Act, I shall recommend that it be ordered to cease and desist
therefrom and to take certain affirmative action designed to
effectuate the policies of the Act.
CONCLUSIONS OF LAW
I. Respondent, Fort Wayne Newspapers, Inc., is an
employer engaged in commerce, and in operations affecting
commerce, within the meaning of Section 2(2), (6), and (7)
of the Act.
2. Fort Wayne Typographical Union No. 78, a/w Interna-
tional Typographical Union, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. All full-time and regular prt-time mailing room
employees of the Employer at its Fort Wayne, Indiana,
I In the event no exceptions are filed, u provided by Sec. 102.46 of the
Rules and Reulation of the National Labor Relations Board, the finding,
conclusions and recommended Order herein shall, as provided in Sec. 102.48
facility, excluding office clerical employees, professional
employees, foremen, assistant foremen, all other employees,
guards, and supervisors as defined in the Act constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. Fort Wayne Typographical Union No. 78, a/w Interna-
tional Typographical Union, AFL-CIO, is, and at all times
material herein has been, the exclusive representative of the
employees in the unit described above within the meaning of
Section 9(a) of the Act.
5. By failing and refusing to bargain in good faith with the
Union as collective-bargaining representative of its employ-
ees, in the aforesaid appropriate unit, with respect to rates of
pay, wages, hours of employment, and other terms and
conditions of employment, Respondent has engaged in, and
is engaging in, unfair labor practices within the meaning of
Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act.
6. By soliciting employees to sign a petition to remove the
Union; promising employees economic benefits if they
signed such a petition; and by conditioning the employment
of an employee upon that individual's promise to refrain
from supporting the Union, Respondent has engaged in
unfair labor practices within the meaning of Section 8(a)(1)
and Section 2(6) and (7) of the Act.
7. Respondent has not violated the Act except as
specifically herein found.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this case, and pursuant to Section
10(c) of the Act, I hereby issue the following recommended:
ORDER 6
The Respondent, Fort Wayne Newspapers, Inc., Fort
Wayne, Indiana, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Refusing to bargain with Fort Wayne Typographical
Union No. 78, a/w International Typographical Union,
AFL-CIO, as the exclusive bargaining representative of its
employees in the unit described above.
(b) Soliciting employees to sign a petition to remove the
Union; promising employees economic benefits if they sign
such a petition; and conditioning employment upon the
promise of employees to refrain from supporting the Union.
(c) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of their
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Upon request, bargain collectively concerning rates of
pay, wages, hours of employment, and other terms and
conditions of employment with the above-named Union, as
the exclusive collective-bargaining representative of all the
employees in the appropriate unit described above, and, if an
agreement is reached, embody it in a signed contract.
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
550
FORT WAYNE NEWSPAPERS, INC.
(b) Post at its Fort Wayne, Indiana, facility copies of the
attached notice marked "Appendix."' Copies of said notice,
on forms provided by the Regional Director for Region 25,
after being duly signed by Respondent's authorized repre-
sentative, shall be posted by it 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.
(c) Notify the Regional Director for Region 25, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
' In the event that this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively with
Fort Wayne Typographical Union No. 78, a/w Interna-
tional Typographical Union, AFL-CIO. The appropri-
ate bargaining unit is:
All full-time and regular part-time Mailing Room
employees of the Employer at its Fort Wayne,
Indiana, facility, excluding office clerical employees,
professional employees, foremen, assistant foremen,
all other employees, guards, and supervisors as
defined in the Act.
WE WILL NOT solicit employees to sign a petition to
remove the Union or promise employees economic
benefits if they sign such a petition or condition
employment upon the promise of employees not to
support the Union.
WE WILL NOT in any like or related manner interfere
with, restrain or coerce employees in the exercise of
their rights guaranteed in Section 7 of the Act.
WE WILL, upon request, bargain collectively con-
cerning rates of pay, wages, hours of employment, and
other terms and conditions of employment with the
Union as the exclusive collective-bargaining representa-
tive of all the employees in the appropriate unit
described above, and, if an agreement is reached, WE
WILL embody it in a signed contract.
FORT WAYNE NEWSPAPERS, INC.
551