Poughkeepsie Newspapers, Inc.

National Labor Relations Board - Board Decisions

Jul 30, 1969

177 N.L.R.B. 972 (N.L.R.B. 1969)

972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Poughkeepsie Newspapers, Inc. and Local Union No.
445, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America. Cases 3-CA-3496 and 3-RC-4356
July 30, 1969
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
By CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND JENKINS
On December 24, 1968, Trial Examiner Sidney
Sherman issued his Decision in the above-entitled
proceeding, finding that Respondent, Poughkeepsie
Newspapers, Inc., had engaged in and was engaging
in certain unfair labor practices, and recommending
that Respondent cease and desist therefrom and
take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. He also found
that Respondent had not engaged in other unfair
labor practices alleged in the consolidated complaint
and recommended dismissal of those allegations.
The Trial Examiner further found that certain
conduct which occurred during the critical
preelection period interfered with the election held in
Case 3-RC-4356, and recommended that it be set
aside, that the petition for election be dismissed, and
that all proceedings therein be vacated. Thereafter,
Respondent filed exceptions to the Trial Examiner's
Decision and a supporting brief, and the General
Counsel filed a brief in answer to Respondent's
exceptions.'
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 these cases to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the briefs, and
the entire record in these cases, and hereby adopts
the findings, conclusions, and recommendations of
the Trial Examiner only to the extent consistent
herewith.
1. The Trial Examiner concluded that Respondent
violated Section 8(a)(5) of the Act by refusing to
recognize and bargain with the Union on and after
January 16, 1968, when a meeting took place
between Respondent's president, Wollenhaupt, and
Union agent Ebert. The Trial Examiner found that,
at the hearing in this case, Wollenhaupt vacillated
by taking different positions to explain why he
refused to recognize the Union: (1) that the sole
obstacle to recognition was Wollenhaupt's belief
'Respondent has also requested oral argument before the Board . Since it
appears that the record and the briefs adequately present the positions of
the parties , the request is hereby denied.
that the drivers in the unit were independent
contractors, not employee-members of the unit, and
that the Union, therefore, may not have represented
a majority of employees in the unit; (2) that he was
influenced by an experience which he had in 1948, in
which a union claiming to represent a majority of
employees had lost an election, and that this
experience had had a bearing upon his doubt of the
Union's majority status; and (3) his antipathy
towards the Union because of its tactics and
leadership. The Trial Examiner found, on the basis
of his evaluation of Wollenhaupt's testimony, that
"the independent-contractor issue was the sole
obstacle to recognition and his only reason for
doubting the Union's majority." Having also found
that the drivers in question were not independent
contractors, the Trial Examiner concluded that
Respondent unlawfully refused to bargain with the
Union, since a bona fide, but erroneous, belief that
members of a claimed unit are not employees, but
rather independent contractors, is no defense to a
charge of unlawful refusal of recognition.
We disagree with the Trial Examiner's appraisal
of the record insofar as it relates to the explanations
offered by Wollenhaupt for his refusal to grant
recognition. While Wollenhaupt did testify that his
refusal was "very much" based on the
independent-contractor issue, his other testimony
indicates that his failure to extend immediate
recognition to the Union was grounded on an
admixture of reasons, including doubt as to the
validity of the Union's claim of majority status. We
do not believe that the record supports the Trial
Examiner's characterization of Wollenhaupt's
testimony as "vacillating," and we agree with the
Respondent that that testimony justifies a finding
that among Wollenhaupt's reasons for denying
recognition was his doubt of the Union's assertion
of majority status.
This, therefore, is not a case in which Respondent
has refused to bargain for only one reason, that
reason being a belief that the members of the unit
claimed by the Union are not employees within the
meaning of the Act. If such a belief were the only
basis for a refusal and if that belief was, in fact,
erroneous, then the refusal would not be justified. In
this case, however, it appears that Wollenhaupt had
several reasons for refusing to grant recognition at
the time of his meeting with Ebert, and that one of
these reservations related to the question of whether
the authorization cards signed by the employees
truly expressed their desire to be represented by the
Union.
In examining whether such a refusal to bargain
warrants the finding of an 8(a)(5) violation and the
issuance of a bargaining order, we look to the
attendant circumstances to determine whether
Respondent, by its conduct, has made the holding of
a fair election unlikely. The 8(a)(1) violations found
by the Trial Examiner and which we affirm are, in
brief, an implied promise to one employee to
177 NLRB No. 125
POUGHKEEPSIE NEWSPAPERS, INC.
institute improvements in working conditions if the
Union lost the election; threats on three or four
occasions to change the hours of some drivers who
had other full-time jobs and a single deviation from
the customary loan policy of Respondent. These few
violations , occurring in a unit of 52 employees, in
our opinion, are not of sufficient gravity to support
an 8(a)(5) finding or bargaining order.'
2. The Trial Examiner found the Union's
objections to the election to be meritorious, and he
accordingly recommended that the election held on
April 26, 1968, be set aside, that the petition for
election be dismissed , and that all proceedings
therein be vacated. Having previously recommended
that a bargaining order be issued, the Trial
Examiner made no recommendation that a new
election be held. We adopt the Trial Examiner's
findings and recommendations as to the necessity
for setting,aside the election, and we shall order that
a new election be held.
3. In accordance with the above discussion, we do
not adopt the Trial Examiner's Conclusions of Law
4.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent,
Poughkeepsie Newspapers, Inc., Poughkeepsie, New
York, its officers , agents, successors , and assigns,
shall take the action set forth in the Trial
Examiner's Recommended Order, as herein
modified:
1. Omit subparagraphs 1(a) and 2(a) of the Trial
Examiner's Recommended Order and redesignate
the subsequent subparagraphs accordingly.
2. Omit the final paragraph of the Trial
Examiner's Recommended Order, beginning with
the words "It is further recommended."
3. Omit the last two indented paragraphs of the
attached Appendix.
IT IS FURTHER ORDERED that the election held on
April 26, 1968, among Respondent's employees in
the appropriate unit, be, and it hereby is, set aside.
[Direction of Second Election3 omitted from
publication.]
'N.L.R B. v. Gissel Packing Co., 395 U. S. 575.
'In order to assure that all eligible voters may have the opportunity to
be informed of the issues in the exercise of their statutory right to vote, all
parties to the election should have access to a list of voters and their
addresses which may be used to communicate with them . Excelsior
Underwear Inc, 156 NLRB 1236; NL.R.B. v. Wyman-Gordon Company,
394 U.S 759. Accordingly , it is hereby directed that an election eligibility
list, containing the names and addresses of all eligible voters, must be filed
by the Employer with the Regional Director for Region 3 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.
TRIAL EXAMINER'S DECISION
973
SIDNEY SHERMAN ,Trial Examiner : A copy of the original
charge in the instant CA case was served on Respondent
on May 7, 1968,' the complaint issued on July 17,
together with an order consolidating that case with the
RC case. A hearing in the consolidated proceeding was
held on September 17, 18, and 19 . The issues litigated
related to alleged violations of Section 8(a)(1) and (5) of
the National Labor Relations Act, as amended, and
alleged interefence with the election held on April 26.
After the hearing briefs were filed by Respondent and the
General Counsel.'
Upon the entire record' in the proceeding , including my
observation of the witnesses , I adopt the following
findings and conclusions:
1. RESPONDENTS OPERATIONS IN COMMERCE
Poughkeepsie Newspapers , Inc., herein called
Respondent, is a corporation under the laws of the State
of New York, and is engaged at its establishment in
Poughkeepsie , New York, in the publication and sale of
newspapers . During the year preceding the issuance of the
instant complaint, Respondent derived gross revenues
from its operations in excess of $200,000 and purchased
from out-of-State suppliers goods and materials valued at
more than $50,000 . Respondent is engaged in commerce
under the Act.
II. THE UNION
Local Union No. 445, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, hereinafter called the Union, is a labor
organization under the Act.
III. THE UNFAIR LABOR PRACTICES
The pleadings raise the following issues:
1. Whether Respondent violated Section 8(a)(1) of the
Act by denying loans to employees because of the advent
of the Union , threatening to impose on the employees
more arduous working conditions and work schedules that
would interfere with their holding other jobs, and
promising them certain benefits if they repudiated the
Union.
2. Whether Respondent violated Section 8(a)(5) and (1)
of the Act by refusing to recognize the Union.'
A. Sequence of Events
Respondent publishes a daily and a Sunday newspaper,
both of which are distributed in the Poughkeepsie area by
'All dates refer to 1968, unless otherwise stated.
'On November 13, because of a defect in the order of consolidation, I
issued an order severing the instant cases and remanding the RC case to
the Regional Director for appropriate action . On December 6, pursuant to
a motion by the Regional Director , I ordered reconsolidation of the cases
and reopening of the record for the purpose stated in that order. The
record is hereby closed.
'For corrections of the transcript of testimony see the orders of October
25 and November 25.
'A complaint allegation of unlawfully creating the impression of
surveillance was withdrawn by the General Counsel . Another allegation
that Respondent made certain payments to the employees to induce them
to reject the Union was struck at the hearing because of a failure of proof
that such payments were made for antiunion reasons.
974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
individuals described in this proceeding as motor-route
drivers, county bulk drivers, combination drivers, and city
bulk drivers.' (All such individuals will hereinafter be
referred to as "the drivers.") Early in January, the Union
began a campaign to organize these individuals, as well as
certain others employed in Respondent's circulation
department. To this end, a meeting was arranged on
January 10, at which Union Agent Ebert addressed a
group of about 20 persons, and cards authorizing Union
representation were distributed. At a second meeting, held
on January 15, additional cards were distributed and on
January 16, when he met with Wollenhaupt, Respondent's
president, Ebert had 31 signed cards. It was stipulated
that at that time there were not more than 52 in the unit
claimed by the Union. When Ebert made a request for
recognition on the basis of the cards, Wollenhaupt gave a
temporizing answer. On January 19 Ebert filed the
petition in the instant representation case. At a hearing on
the petition, held on February 8, there was litigated the
question whether the drivers were independent contractors.
On March 27 the Regional Director issued a Decision and
Direction of Election in which he found that the drivers
were employees and not independent contractors.
Respondent appealed from this ruling but review was
denied by the Board. The election was held on April 26,
and the Union lost by a vote of 32 to 22. Timely
objections to the election were filed by the Union.
B. Discussion
1. Union animus in general
Although Respondent has contracts with other unions
for its printing employees, Thomas, Respondent's
circulation manager, admitted telling certain employees
that he had no liking for the instant Union, and did not
specifically dispute the testimony of Doran, which I credit,
that Thomas also told such employees that the Union
"would never get in the Poughkeepsie . . . Journal."
Likewise, Respondent's president, Wollenhaupt candidly
avowed at the hearing that Respondent "wanted no part
of the Teamsters." On the other hand, Respondent did for
a few days during the preelection period maintain a notice
on its bulletin board disclaiming any intent to discriminate
against union adherents, and a like disclaimer appears in a
preelection speech delivered to the employees by Thomas.
2. Change in loan policy
Under their contracts with Respondent, the drivers were
required to post a bond or security deposit of $125 or
$150 to guarantee payment for the newspapers purchased
by them from Respondent. This obligation was liquidated
through weekly installment payments of $5 or $10. In
practice, some employees continued to make such
payments even after they had met their bond obligation,
and it has been Respondent's policy to permit them to
borrow against this "surplus" in their bond account. In
addition, it is undisputed that before the advent of the
Union Respondent would lend to the drivers even part of
the mandatory amount in their accounts. Thus, Schavi
testified that in December 1967, when he had only $50 or
'Since the complaint appends the term "distributors" to the foregoing
designations , such appendage will be used in the formal unit findings made
in the text below
For an explanation of the difference in the duties of the various
categories of drivers, see G C Exh. 4
$60 in his bond account, he was allowed to borrow $40,
by Betros, the assistant circulation manager, an admitted
supervisor. However, according to Schavi, when he
applied in mid-March for a loan of $70, against the $90
or $100 then in his account, Betros turned him down,
asserting that Schavi was required to maintain a balance
of $125, and could borrow only any excess in his account
over that amount, and adding, "We have to go by the
book now, because the men are giving Thomas the shaft."'
Betros professed to be unable to recall the foregoing
second loan request by Schavi, but was positive that he
had not made the foregoing remark. However, on the
basis of the demeanor, as well as the circumstantiality of
Schavi's testimony, I credit him and find that his loan
application was rejected in reprisal for the employees'
Union activity, and that Respondent thereby violated
Section 8(a)(1) of the Act. It is further found that, by
Betros' foregoing explanation of the reason for the denial
of Schavi's request, Respondent additionally violated
Section 8(a)(l) of the Act.
Clina testified that in 1967 he was permitted to borrow
almost the entire amount in his bond account, but that,
when he applied late in February, for a loan in an amount
which would have left a balance of $100 in his account,
Circulation Manager Thomas stated that he could borrow
only the excess above the security deposit of $150
specified in his contract. Clina added that about a week
later, after he had in the interim resigned and then
reconsidered and signed a new employment contract
providing for a $125 bond, Thomas granted him a loan in
the amount of the excess in his account above $125.
Thomas insisted that there had been no change in his
loan policy since the advent of the Union,' which policy
was to grant loans only in the amount of any excess in the
employees' bond account, except that in hardship cases he
waived such limitation. Thomas cited, without
contradiction, six "hardship" cases in which he had during
March and April approved loans in an amount that
reduced the borrower's balance below the mandatory level.
In view of this, I find that, even if one were to credit
Clina's testimony that he was treated less liberally by
Thomas in 1968 than in 1967, there is no preponderance
of evidence that this was due to any change in loan policy
because of the advent of the Union.' Accordingly, it will
be recommended that the allegation of discrimination by
Thomas with respect to loans be dismissed. (While it has
been found that in 1968 Betros did adopt a more stringent
policy in Schavi's case, there is nothing in the record to
refute Thomas' denial that he had anything to do with
Schavi's 1968 loan application. Accordingly, I do not
regard Schavi's case as reflecting on the credibility of
Thomas' denial of any change in his loan policy after the
advent of the Union.)
`See item 9 of the order of October 25, and my ruling of November 25
on that item.
'While not disputing that Clina had negotiated loans against his bond
account, Thomas denied that Clina had ever applied to him for such a
loan. In view of my disposition of the matter, there is no need to resolve
this conflict
'There was no evidence that Thomas knew of Chna's Union affiliation,
and the General Counsel's theory is apparently that the change in loan
policy after the Union 's advent was applied indiscriminately to all loan
applicants, whether or not Union adherents , in order to discourage
adherence to the Union However , Thomas' credited testimony as to his
treatment of loan applicants generally after the advent of the Union
requires rejection of that contention.
POUGHKEEPSIE NEWSPAPERS , INC. 975
3. Threats and promises
Wasvary testified that on a date between January 13
(when he signed a union card ) and the election , Thomas
told him that he had plans for employee benefits on his
desk, but had not been able to put them into effect
because of the Union. Subsequent testimony of Wasvary
indicates that this occurred toward the end of the
preelection period.' While Thomas entered a blanket
denial, I credit Wasvary on the basis of demeanor, and
find that Respondent violated Section 8(a)(1) of the Act
by Thomas' foregoing statement, which implied that, if
the Union were voted down, he would proceed with his
plan for improvements in working conditions.
Respondent had five or six drivers who also worked for
the local post office. Doran testified that on three or four
occasions he had heard Thomas threaten that, if the
Union won bargaining rights, he would require the
foregoing drivers to pick up their papers at an hour that
would interfere with their other employment,'" and that
these threats were uttered during a period of about 2
weeks beginning late in January. Clina attested to such a
threat between January 10 and February 8, Lucarini, one
of the post office employees, described such a threat by
Thomas about a month before the April 26 election, and
Murphy professed to have heard a like threat about 2
weeks before the election. Thomas denied that he had
made any such threat. While admitting that in April he
had had a conversation with an employee about a change
in schedule, he insisted that this consisted merely of an
inquiry by the employee as to whether there would be
such a change, if the Union came to represent the
employees, and Thomas' response that the matter was
negotiable.
I was favorably impressed by Doran's demeanor and
the firmness of his recollection of the various incidents
cited by him. Lucarini and Clina also struck me as candid
witnesses. In view of this, as well as the corroborative
nature of Murphy's testimony," I credit the General
Counsel's witnesses and find that between the date of the
filing of the Union's petition (on January 19) and the date
of the election Thomas warned that, if the Union came to
represent the employees, Respondent would change the
reporting time of the postal employees to an hour that
would interfere with their other employment, and that
Respondent thereby violated Section 8(a)(1) of the Act.12
Doran testified that late in January Thomas stated that,
if the Union ' s campaign was successful , he would require
the drivers to work 8 hours a day, so that they could not
engage in any "side job ," and that Thomas explained that
he would accomplish this by assigning extra duties to the
drivers such as installing "tubes"" and soliciting new
business.
Although Thomas denied making such a threat, I credit
Doran on the basis of demeanor and the circumstantiality
of his testimony and find that by such threat Respondent
additionally violated Section 8(a)(1) of the Act.
Doran added that in the same conversation , he was told
by Thomas that the men had not given him time enough
to put into effect certain benefits that he had been
"negotiating" for them , and that the benefits would cost
about 35 cents a week per man. After at first denying that
there was any such discussion, Thomas offered a different
version of the incident . He testified that in the fall of
1967, he proposed to higher management an insurance
program for the drivers, which would have cost each of
them 35 cents per week , and that he might have told
Doran at that time that he would be eligible to
participate, if the program was adopted. While, in view of
Thomas' vacillation, as well as demeanor considerations, I
credit Doran , his testimony regarding Thomas ' remark is
too vague and unclear to warrant a finding that such
remark constituted a promise of some tangible benefit," if
the Union was rejected . Accordingly , no violation is found
here.
Pottenburgh, a driver, testified that he had frequently
asked Thomas for more compensation , and that Thomas
would answer that " it couldn ' t be done at this time until
this thing was cleaned up," and on one of those occasions
stated that "he had a lot of plans for the drivers ... until
this thing came up ." However, Pottenburgh had difficulty
in relating these incidents to the period of the union
campaign , testifying only that he thought they occurred
during the union campaign, and, as to Thomas'
last-quoted remark , the witness asserted that there "must
have been" a Union campaign at the time ." Pottenburgh
confused the issue still further , when he said that that
remark was made a few weeks before he signed a Union
card. As he signed the card on January 13, the effect of
his testimony is that the the remark was made about
January 1, which, so far as the record shows, was before
any overt union activity among the instant employees."
'In such later testimony , he said the foregoing incident occurred within
"less than a week" of another incident , which occurred only "about 4
days" before the election , but could not recall which incident occurred
first While such testimony left open the possibility that the remark
described in the text was made a day or two after the election, I deem
entitled to more weight Wasvary's prior unequivocal testimony that the
remark was made before the election . There is, moreover, no necessary
conflict between such testimony and his later testimony , which may readily
be reconciled with the former , either on the assumption that the incident
here in issue occurred first, or that the " less than a week" interval between
the two incidents did not extend beyond the 4 or so days antedating the
election
"The postal employees were not required to report to Respondent before
2 45 p.m., whereas other drivers reported as early as 1 p in.
"I struck certain of Murphy's other testimony (see fn . 23, infra), because
it was marred by repeated self-contradiction and vacillation , and I have
given weight to his instant testimony only because it jibes with that of
Doran , Lucarim , and Chna.
"Thomas testified that he had no authority to change the employees'
work schedule However , the employees had no way of being certain that
he lacked such authority or that he would not be given such authority, if
the Union won bargaining rights.
There was evidence that certain of the postal employees indicated to
Thomas that they were not concerned about the threatened change in
schedule , since they could adjust their hours at the post office to conform
thereto While such evidence tends to negate the effectiveness of the instant
threats, it does not preclude a finding that such threats were reasonably
calculated to coerce the employees , which is all that is required to establish
a violation of Sec. 8(axl). Moreover , Thomas' foregoing threats
demonstrated to the employees that Respondent had no qualms about
visiting reprisals in one form or another, if the employees selected the
Union as their representative
"These were newspaper receptacles installed in front of a subscriber's
house.
"Not only was there insufficient basis in Doran's testimony for inferring
that Thomas meant to imply that he would have obtained such benefits for
the employees but for the advent of the Union, but it is also debatable that
Doran (or any other employee) would place any appreciable. value on
"benefits" concerning which he knew nothing other than that they would
cost him 35 cents a week.
"Pottenburgh subsequently testified that that incident did occur during
the Union ' s campaign , but only after he was pressed for a direct answer on
that point.
"As noted above , the first union meeting was held on January 10. There
is no evidence as to any earlier union activity among the employees.
976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thomas entered a categorical denial . For reasons which
should be apparent from the foregoing discussion, I
cannot credit Pottenburgh in the face of such denial."
foregoing evidence was rejected."
b. The Union 's majority status
4. The 8(a)(5) issue
a. The appropriate unit
The complaint, as amended," alleges the following unit
to be appropriate for collective bargaining under the Act:
All employees in Respondent ' s circulation
department , including county bulk driver-distributors,
combination driver-distributors, motor-route
driver-distributors , city bulk driver-distributors, county
supervisors , city district managers, and mailroom
employees, excluding all other employees , office clerical
employees, guards, professional employees, and
supervisors as defined in the Act.
This is the unit found appropriate by the Regional
Director. At the instant hearing Respondent renewed the
contentions made at the representation case hearing, and
rejected by the Regional Director, that the various
categories of driver-distributors listed above are not
employees but independent contractors. Section 102.67 of
the Board ' s Rules and Regulations provides for
discretionary review by the Board of a Regional Director's
decision in a representation case , and subsection (f)
thereof reads as follows:
The parties may, at any time, waive their right to
request review. Failure to request review shall preclude
such parties from relitigating , in any related subsequent
unfair labor practice proceeding, any issue which was,
or could have been , raised in the representation
proceeding. Denial of a request for review shall
constitute an affirmance of the regional director's
action which shall also preclude relitigating any such
issues in any related subsequent unfair labor practice
proceeding.
It has been specifically held that the foregoing provision
applies to a case where , as here, the respondent seeks to
relitigate its contention in a representation case that the
unit contains independent contractors."
While, literally construed , the foregoing provision
would seem to foreclose consideration at the instant
hearing of any evidence whatsoever bearing on the
"independent contractor" issue , I ruled at the hearing that
Respondent would be permitted to adduce any newly
discovered evidence on the foregoing issue that was not
available at the time of the representation case hearing,
and Respondent offered certain evidence regarding events
that occurred after that hearing relating to some of the
drivers. However, while obviously not available at the
time of such hearing , such evidence was not pertinent to
the issue before me, which was the status of the drivers
generally at the time of Respondent ' s alleged refusal to
bargain on January 16. Even if it be assumed that
subsequent events would prove a change in the status of
some of the drivers after January 16, or after the date of
the representation hearing , that fact would not excuse a
refusal to bargain as of January 16. Accordingly, the
"In any event , I do not believe that Pottenburgh ' s vacillating and vague
testimony would warrant a finding that any such incident as he described
occurred at any time during the Union 's campaign or had reference to such
campaign
"After the hearing , the unit description in the complaint was amended,
without objection , to correct an inadvertent omission See the order of
November 25 in the CA case.
"Northwestern Publishing Company, 144 NLRB 1069, 1071
It was stipulated that on January 16, there were not
more than 52 in the unit herein found appropriate, the
only dispute in that regard being whether Elliott, a card
signer , was still in Respondent' s employ on that date. As
Betros, his supervisor , conceded that Elliott' s employment
was not , in fact, terminated until January 17, it is found
that he was still in Respondent' s employ on January 16,
and that the number in the unit on that date was 52.
The General Counsel offered in evidence authorization
cards signed by 30 of these 52 individuals , all of which
were duly authenticated . Respondent sought through
cross-examination of the signatories to elicit proof that
they were induced to sign the card through
misrepresentation as to the purpose of the card,
particularly as to its purpose in connection with a
representation election . Here, the card unambiguously
empowers the Union to represent the signatory and to
negotiate on his behalf "all agreements in respect to rates
of pay, wages, hours of employment, or other conditions
of employment ." Nothing on the card suggests that it
may, or will, be used for any other purpose.
The rules applicable to cases where , as here , the cards
are unambiguous on their face , was recently clarified by
the Board in Levi Strauss & Co.,` and McEwen
Manufacturing Co. Sr The principles there enunciated may
be summarized as follows:
1. Where the card is unambiguous and the signatory
can read it, it is presumed that he signed the card to
empower the union to represent him in bargaining.
2. This presumption may be overcome only by
affirmative proof that the signing was "the product of
misrepresentation or coercion ," and, absent
misrepresentation or coercion, an employee's thoughts or
afterthoughts as to why he signed a card or as to the
meaning of the card cannot negate the overt act of
signing.
3. Declarations to employees that the cards are desired
to obtain an election do not normally constitute
misrepresentations.
4. However, "where union organizers solicit cards on
the explicit or indirectly expressed representation that they
will use such cards only for an election and subsequently
seek to use them" to establish the union's majority
without an election, the Board will invalidate the cards as
having been obtained through misrepresentation as to
their purpose.
Respondent attacks the validity of eight cards on the
basis of the signatories' testimony as to representations
made to them and their state of mind . Such testimony will
next be considered:
1. Canino, who signed a card on January 12, testified
that , in soliciting him, Murphy stated that the witness was
not "held to anything, that the only reason for the card
was that we were trying to find out how many employees
were interested enough in having the Union come in."
While professing to be unable to recall any reference by
Murphy to an election, the witness acknowledged that
"Respondent contended at the hearing that any change in the status of
the drivers after January 16, would be relevant to the remedy . However,
whether there was any change in the status of particular drivers is a matter
that may properly be determined in compliance proceedings.
"172 NLRB No. 57.
"172 NLRB No. 99
POUGHKEEPSIE NEWSPAPERS, INC. 977
Murphy mentioned that there would have to be a
proceeding before the Board as "part of having the Union
come in." There is no basis here for finding that Murphy
represented either expressly or by indirection that the sole
function of the card was to obtain an election. On the
contrary, it is clear that Murphy said that the sole
function of the card was to determine the extent of
employee support for the Union, which was an accurate
statement . While Canino ascribed to Murphy a statement
that the Union would need some unspecified assistance
from the Board before it could "come in," this falls far
short of saying or implying that the sole purpose of the
card was to obtain an election. In any event, any
contention that Canino's execution of the card was the
product of a misrepresentation as to the purpose or
significance of the card , is negated by his unequivocal
statement at the hearing that he signed because he felt
that through the Union the employees could obtain
greater security.
2. Lee testified that he signed a card at the solicitation
of Murphy, and his initial version was that Murphy told
him at the time only that the cards was "for the Union,"
and, while, under cross-examination, the witness observed
that he thought that Murphy told him at the time that
"they had to vote on it," on redirect he, in effect, reverted
to his original position, declaring that on that occasion
Murphy asked if he wanted to join the Union and made
no reference to an election.21 Lee, who was already a
member of another Teamsters local, asserted that he
"knew" there would be an election and signed the card
because he wanted to vote therein, but did not know at
the time how he would vote. It is patent that no finding of
misrepresentation can be predicated on Lee's vague
testimony, promptly retracted by him, as to a remark by
Murphy that there would have to be an election. Thus, the
case appears to be one where there was no
misrepresentation by the solicitor as to the purpose of the
card and the signatory was presumably aware of that
purpose,2i and that the card might be used to obtain
recognition without an election , but the signatory asserts
that he signed the card in the expectation that there
would, nevertheless, be an election and he would then have
the opportunity to vote for or against the Union. This is
the sort of "subjective" testimony that the Board will not
permit to negate the overt act of signing an unambiguous
card. Accordingly, Lee's card is found to be valid.
3. Wilson, who signed at Murphy's behest on January
13, acknowledged that he read the card before signing it.
While attributing to Murphy a remark at the time that
there would be an election, he averred that Murphy
explained at the same time that the card was for the
Union and for the benefit of the employees. His final
version was that Murphy "just handed me the card and
asked me if I might possibly like to join the Union if the
Union was voted in." While Wilson insisted that he did
not intend to "join" the Union unless it won the election,
he showed extreme reluctance to disclose how he would
have voted in such an election. However, finally, in
response to the question whether he signed the card
because he wanted an opportunity to vote for the Union in
"Murphy testified that in soliciting Lee, no reference was by him made
to an election However , at the conclusion of his testimony concerning the
circumstances under which other cards were signed , I ruled that, because
of the obvious confusion of the witness , I could place no reliance on any of
his testimony concerning the signing of cards, and such testimony was
therefore struck Accordingly, in resolving the issue as to Lee' s card, I
have given no weight to Murphy ' s foregoing denial
"Lee admitted that he read the card before signing.
an election , he answered , "Naturally, what would be the
purpose for signing the card?" There is insufficient basis
in the foregoing testimony for finding any direct or
indirect representation by Murphy that the card would be
used only to obtain an election . At the most, such
testimony taxes Murphy with implying that, by signing the
card, Wilson would be signifying his intention to "join"
the Union, if it won the election. However , such intention
was not inconsistent with the purpose stated on the face of
the card, which does not purport to be an unconditional
undertaking to join the Union, but only an authorization
of the Union to bargain for the signatory . Accordingly,
even if Murphy did tell Wilson that, by signing the card,
he was not obligating himself to join the Union unless it
won the election, there was nothing materially untruthful
in such representation . 26 Moreover , it is clear from
Wilson's entire testimony that his act of signing the card
was the product, not of any misrepresentation by Murphy,
but of Wilson' s own prounion sentiments , and his card
may, therefore, properly be treated as evidencing a
preference for union representation . It will be counted.
4. Hansen , who signed a card on January 13, testified
that. in soliciting him, Murphy stated that the cards were
"for the purpose of allowing the Union to come in and
talk to the workers," and that the only way he could learn
what the Union had to offer was to sign the card, and that
the witness had not yet decided whether he wanted the
Union to represent him, but signed the card because he
wanted to hear what the Union had to say. Of the nearly
30 persons who testified about the circumstances under
which their own cards or cards of others were signed,
Hansen was the only one who mentioned any such
representation concerning the purpose of the card.
However, since , for reasons explained above,26 the record
contains no effective contradiction by Murphy of such
testimony, I credit it. I find, also, that, in view of such
representation, and, as the record shows that Hansen
signed the card because of such representation , his card
may not be counted.
5. Earl Tedesco, who signed a card on January 12,
testified that he was solicited by Murphy, that he had no
recollection of any representation to him concerning the
purpose of the card, except that "they talked about
getting a union in ," and that Murphy's remarks were "all
pertaining to signing the card, because they wanted the
Union to come in." The foregoing clearly affords no basis
for invalidating his card.
6. Marie Tedesco , Earl's wife, testified that on January
13, she signed a card given her by him, and that he told
her that "in order to get the Union in .:. we have to sign
the cards first and . . . there might be an election later
on." She then testified variously that she took it for
granted that "there would be an election"; that she did
not know whether the Union could become the
representative of the employees on the basis of cards alone
or whether there had to be an election ; and that her
reason for signing the card was "because at the time I was
interested in seeing the Union get in ." It is evident from
the foregoing that her husband truthfully explained to her
"While such representation might be deemed inaccurate insofar as it
implied that by signing the card , Wilson was obligating himself to join the
Union , if it won the election, that would be no reason to reject the card.
The fact that Wilson voluntarily signed the card under such circumstances
would reflect at least a conditional willingness on his part to join the
Union Such a state of mind is, of course, entirely consistent with a desire
for immediate union representation, without incurring any present
obligation to join the Union , which is all that the card signifies.
"See fn . 23, supra
978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the primary purpose of the cards was "to get the
Union in" and that she signed the card for that reason
and not because of his reference to the possibility of an
election . It is thus clear that , even if such reference to an
election were deemed to be in some way misleading, her
signing of the card was not the product of any such
misleading remark but of her desire for union
representation . Her card is found valid.
7. Harris , who signed a card on January 11, testified on
direct that he read the card before he signed it, that he
signed it because "they said it is trying to get the Union
into the Poughkeepsie Journal ," and that at that time he
wanted a union because his papers were not being
delivered to him on time ." Under cross-examination he
stated that , when he signed the card , he was not aware
that the Union could "get in" without an election, and
that he understood that there would be an election ; that as
far as he knew Murphy told him that , but he could not
remember what Murphy said . On redirect , the witness
confessed that he had no recollection of Murphy's
remarks, and that he was not interested in what Murphy
said , but only in getting his papers from Respondent on
time . In view of Harris ' vagueness, and his final avowal
that he had no recollection of Murphy' s remarks, I cannot
find that he told Harris that there would be an election.
Moreover, even if he did , that would not constitute a
direct or indirect representation that the Union would not
attempt to use the card for the purpose stated thereon,
and, it is clear , in any event, that he was not induced to
sign the card by any misrepresentation or
misunderstanding as to its purpose , but signed in order to
pave the way for representation by the Union , which he
desired because of an unsatisfactory working condition.
8. Croshier, who signed a card on January 12, stated
that he did not read the card , but that he knew what it
contained because he had signed other union cards on
prior occasions ; that, in soliciting him, Murphy stated that
it was "about getting the Union in and going to
meetings ," and made no reference to an election ; that he
thought that, unless he signed the card he would not be
able to attend any "meetings about the company"; and
that at the time he signed the card he wanted
representation by a unions" but did not think that by
signing the card he was "obligated to have the Teamsters
represent" him. It is clear from the foregoing that
Murphy conveyed to the witness that at least one purpose
of the card was to obtain Union representation and that
the witness wanted such representation at the time." His
card will be counted.
"Harris asserted that he changed his mind about the Union a few weeks
later , after the late delivery problem was corrected , but that he did not tell
anybody about his change of heart because it was his "personnel business."
It is well settled that such an uncommunicated change in sentiment is not
effective to revoke an authorization card . In any case , since such change
did not occur until after January 16 , it could not affect the Union's
majority status as of that date under any view of the matter.
"The witness professed to have changed his mind about a month later,
but admitted that he had not told anyone about this . See preceding
footnote as to the materiality of this circumstance.
"Under Levi Strauss, supra , no weight may be given to Croshier's
testimony that he did not deem himself "obligated" by the card. In any
event, by such testimony he apparently meant only that he felt free to
change his mind . The fact that one signs a card, knowing or believing that
it is revocable , clearly cannot affect the weight of the card as evidence of
his union preference at the time of signing , particularly when , as here, no
attempt is made at any time to revoke the card . (Here, the card, in fact,
set forth certain limitations on the revocation thereof, but there is no
evidence that any misrepresentations were made to Croshier on that score,
and he did not contend that he refrained from revoking the card because of
such limitations.)
Finally, Respondent attacks all the cards signed by the
20 odd persons present at the Union meeting of January
10, citing testimony by Doran that at that meeting Union
Agent Ebert stated that he "wanted an election."
Respondent argues that Ebert ' s audience must have
inferred from that remark that the card would be used
only for the purpose of obtaining an election ." However,
it does not appear from Doran ' s testimony that the
foregoing remark was made in connection with a
discussion of the use to which the cards would be put, and
other testimony by Doran , who signed his card at the
January 10 meeting , that nobody told him the purpose of
the card before he signed it tends to negate any inference
that the remark was made in that connection. At any rate,
there is no contradiction of Ebert 's testimony," which I
credit, that when , at the January 10 meeting , he attempted
to explain to those present that the cards were ordinarily
used to obtain an election , he was asked whether they
could be used in any other way ; that, upon being told that
a demand for recognition could be made on the basis of
the cards alone , some of the employees , including Doran,
urged that they be used for that purpose; and that Ebert
agreed to do so, explaining that an election would be
sought only if Respondent rejected the Union ' s request for
recognition . In view of the foregoing , it is clear that,
whatever Ebert may have said about an election, and,
even if it be assumed that he indicated a preference for an
election , his audience was adequately apprised that the
cards might be used to bypass an election. Accordingly, I
reject the instant contention insofar as it seeks to impeach
the validity of all cards signed at the January 10 meeting.
In conclusion , it has been found that , of the 30 cards
submitted , only Hansen's card was not valid. As the
remaining 29 cards constitute a majority of the 52
employees in the unit on January 16, the date of the
Union's demand, it is found that the Union on that date
represented a majority of such employees.
c. The demand and refusal
The General Counsel contends that Respondent has
since on or about January 16, refused to recognize and
bargain with the Union as the representative of the
employees in the unit found above to be appropriate, and
that such refusal is unlawful . In its brief, Respondent
contends (a) that it has not been established that
Respondent in fact refused to recognize or bargain with
the Union , and (b) that, even if it be found that it did so
refuse , such refusal was not unlawful because of
Respondent' s good-faith doubt as to the appropriateness
of the unit and the Union 's majority status . Contention
(a) will first be considered.
The record shows that on January 16, Union Agent
Ebert, in substance , asded Respondent's president,
Wollenhaupt , for recognition of the Union as the
representative of those in the unit found above to be
appropriate," that Ebert on that occasion told
Wollenhaupt that the Union had 31 signed cards, placing
the cards on Wollenhaupt's desk; and that Wollenhaupt
neither examined the cards nor voiced any doubt as to
"Respondent does not specifically attack Doran ' s card, and it is clear, in
any event, from his testimony and the uncontradicted testimony of Ebert
that Doran was one of the leading proponents of the Union, attending
every Union meeting , and that he did not sign the card because of any
misrepresentation as to its use in connection with an election.
"Such testimony was, moreover , corroborated , at least in part, by
Williams and Clina.
"Ebert admitted that he asked for recognition in a unit consisting only
POUGHKEEPSIE NEWSPAPERS, INC. 979
their authenticity, but expressed the view that the drivers
(who constituted the bulk of the proposed unit) were
independent contractors.
As for any additional response by Wollenhaupt to his
request for recognition, Ebert's version was that at the
close of the meeting Wollenhaupt stated that he wanted to
consult his attorney and promised to call Ebert the next
day and inform him of Respondent ' s decision , and that,
after waiting 2 days in vain for such a call, he filed the
instant petition. While agreeing that he told Ebert that he
would refer the matter to his attorney, Wollenhaupt
denied making any promise to call Ebert. Wollenhaupt
added that he did consult his counsel," who advised him
to do nothing pending further developments, and
Wollenhaupt did not dispute Ebert's testimony that he
received no call from Wollenhaupt.
Thus, the only conflict appears to be as to whether
Wollenhaupt promised to call Ebert the next day. While
neither Ebert nor Wollenhaupt was a model of clarity or
consistency, I am disposed to credit Ebert here,
particularly in view of the self-contradictions in certain
other testimony of Wollenhaupt (discussed below) on the
crucial issue whether he in fact refused to recognize the
Union on January 16. Accordingly, I find that such a
promise was made and not kept, which circumstance
suffices to establish a refusal of recognition."
Moreover, even if Wollenhaupt, as he testified, stated
only that he would refer the matter to his lawyer, it would
be necessary to find, in the absence of any understanding
that Ebert would contact Wollenhaupt or his lawyer," that
the burden was upon Respondent to communicate further
with Ebert," and its failure to do so, coupled with the
events at the January 16 interview, would, thus, under any
view of the testimony, add up to a failure to give any
definite response to the Union's bargaining request. Such
failure was tantamount to a rejection of such request; for,
an employer may not avoid a finding of refusal of
recognition merely by choosing to postpone indefinitely
any final action on a recognition demand."
of city and county route drivers, county supervisors, city district managers,
and mailroom employees . However , I do not deem his failure to include
specifically the other categories of drivers to be fatal , since such other
categories were essentially only subcategories of the more inclusive county
and city driver categories (see G C. Exh. 4), and were sufficiently
designated by the broader language used by Ebert. Moreover , Wollenhaupt
acknowledged that he understood that Ebert was seeking recognition for
"drivers" and other employees in Respondent's "circulation department,"
and did not profess to have any doubt about the scope of the unit which
the Union claimed to represent.
"The record shows, and it is found , that such consultation took place the
same day See G C. Exh. 44(b), which is dated January 16, and which
refers to such consultation.
"See cases cited in fn . 37, below.
"There is no evidence nor contention that there was any such
understanding
"Ebert did not dispute Wollenhaupt 's testimony, which I credit , that, as
Ebert left the meeting , he announced his intention to file a representation
petition Respondent contends that , in view of this , it was excused from
taking any further action on Ebert 's request for recognition , and it was
incumbent upon the Union to renew such request . The short answer to this
is that , as found in the text, below , Wollenhaupt had already decided not
to recognize the Union and had , in effect, communicated that decision to
Ebert before he made his parting remark about filing a petition. In any
case , there was nothing in Ebert 's remark to suggest that he was
withdrawing his request for recognition nor did Wollenhaupt contend that
he so construed such remark , and the instant petition may not, in itself, be
construed as a withdrawal of such request . Irving Air Chute Company,
Inc., 149 NLRB 627, 628, enfd . 350 F.2d 176 (C.A. 2); Dayton Town &
Country Furniture Shop, 172 NLRB No. 103. Under these circumstances,
Finally, and perhaps most significantly , it is evident
from testimony of Wollenhaupt , other than that cited
above, that, when he gave his temporizing answer,
however phrased , to Ebert's request , he had already made
up his mind not to recognize the Union , and, while the
record shows that he did later that day consult counsel, it
is inferred from such other testimony that he did not do
so because of any indecision on the question of
recognition , but only to obtain advice as to whether, or
how, to communicate his refusal of recognition to the
Union." Thus, although Wollenhaupt at one point denied
that on January 16, he refused to recognize the Union, he
elsewhere freely admitted that he did on that date so
refuse , and explained at some length his reasons therefor,
including an aversion to dealing with the Union because of
its tactics and leadership , his belief that most of those in
the claimed unit were independent contractors , and his
past experience with a union organizing campaign. These
were all matters known to him at the time of the January
16 interview ." Thus, there is no reason to doubt
Wollenhaupt ' s admission , in effect, that he regarded his
treatment on January 16 of the Union 's request as a
rejection thereof.
For all the foregoing reasons, it is found that
Respondent on and after January 16, failed and refused to
recognize the Union.
d. Reasons for refusal of recognition
It may be in order at this point to recapitulate
Wollenhaupt ' s entire testimony as to his reasons for
refusing on January 16 to recognize the Union.
Initially, on direct examination, he stated that he
refused recognition ( 1) because "we wanted no part of the
Teamsters," explaining that he did not approve of their
mode of operation nor their leadership , and (2) because he
doubted that the Union "represented a majority ," citing
as the reason for such doubt his belief that most of the
circulation personnel were independent contractors. When
asked by Respondent's counsel whether he had any other
reason for doubting the Union ' s majority status, he
answered, "No, no other reason especially.""
Subsequently, when asked whether he would have
recognized the Union on the basis of a sufficient card
showing , if he had been satisfied that all the circulation
the burden was upon Respondent "to take the next step in the face of a
bargaining demand that had not been withdrawn ." Irving Air Chute Co v.
N L R.B, supra, Uniform Rental Service , 161 NLRB 187.
"Uniform Rental Service , supra; Viking Bag Division , Shurfine-Central
Corporation, 161 NLRB 648; Bob 's Market, Inc.. 162 NLRB 897. Of the
various cases cited in Respondent 's brief, in which the Board found no
refusal of, recognition despite the employer's inaction , some turned on the
equivocal nature of the union's initial bargaining request , others on the
failure of the union to respond to the employer's overtures, and still
another on the fact that the only relevant request for recognition by the
union was barred from consideration by Sec . 10(b) of the Act.
Accordingly, I do not deem them controlling here.
'This inference is confirmed by the fact that the record reflects no
discussion between Wollenhaupt and his counsel of the merits of the
Union ' s demand , but only the advice of counsel to await further
developments.
"As already noted, he raised the independent-contractor issue at that
interview.
"He added , on direct, that another union had made two abortive efforts
in 1%7 to organize Respondent's circulation department but admitted that
these efforts had not culminated in a demand for recognition, and he did
not claim that these incidents contributed to his doubt of the Union's
majority status. In any event, any contention that they did would conflict
with Wollenhaupt's foregoing testimony that the independent-contractor
issue was the only basis for his doubt of the Union ' s "majority" statue.
980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
personnel were employees and not independent
contractors , Wollenhaupt answered that he would
"certainly" have done so. The following colloquy ensued:
Q. Does it boil down to the fact that you didn't
recognize the Union because of this independent
contractor issue?
A. Very much so.
Respondent ' s counsel then elicited from him a recital of
an experience in 1948, while associated with another
enterprise, when a union made a demand for recognition,
claiming majority status, but, upon being forced to an
election, failed to receive a majority of the votes cast, and
he asserted that this experience affected "to a degree" his
decision not to recognize the Union. Although he did not
expressly so state, it is inferred that Wollenhaupt meant
thereby that this prior experience made him skeptical of
the Union' s claim of majority status.
It is evident from the foregoing that Wollenhaupt
vacillated among the following positions
(I) That the sole obstacle to recognition of the Union
on the basis of a card showing was the independent
contractor issue, which alone caused him to doubt the
Union's "majority."
(2) That another reason for his refusal of recognition
was his 1948 experience, cited above, which also caused
him to doubt the Union's majority status.
(3) That an additional obstacle to recognition was his
antipathy to the Union because of its tactics and
leadership.
In view of Wollenhaupt's unequivocal and emphatic
assertion on direct examination that the
independent-contractor issue was the sole obstacle to
recognition and his only reason for doubting the Union's
"majority," no credence can be given to his belated effort
to establish his 1948 experience as a material factor in the
present situation.
Consideration will, accordingly, next be given to his
reliance on the independent-contractor issue. While he
stated that because of this issue he doubted the Union's
"majority status," this was, properly analyzed,
tantamount to an assertion that he doubted the
appropriateness of the unit which the Union claimed to
represent, because it included certain categories of
independent contractors." In its brief, Respondent seeks
to justify this position by citing various circumstances,
which it contends warranted the view that the drivers were
independent contractors and that the instant unit was
therefore inappropriate. However, even if it be assumed
that Wollenhaupt's doubt of the unit was reasonable and
bona fide, that circumstance would not aid Respondent.
While a good-faith doubt as to a union's majority
status excuses a refusal of recognition , such refusal is not
excused by a bona fide, but erroneous, belief that the unit
claimed by the union is not appropriate."
Thus, in Southland Paint, supra, the Board stated:
. . .it is now well established that a good-faith but
erroneous doubt as to the appropriatenesss of the unit is
"The Union's majority status would have been placed in issue if
Wollenhaupt had challenged the cards of the drivers on the ground that the
various categories of drivers were not , in fact, included in the unit which
the Union claimed to represent However , since such categories were in
fact included in that unit , any attack on their cards because of their
independent -contractor status necessanly went to the appropriateness of
the inclusion of such categories in the unit
"Owego Street Supermarkets, Inc, 159 NLRB 1735, 1742, Southland
Paint Company, Inc, 156 NLRB 22; Tom Thumb Stores, Inc., 123 NLRB
833, United Aircraft Corporation v. N L R B, 333 F.2d 819 (C.A. 2),
enfg 144 NLRB 492
not a defense to an otherwise meritorious charge of
refusal to bargain.
And, this is true where, as here, the respondent
contends that members of the claimed unit are not
employees but independent contractors."
It follows that, if its doubt as to the unit was the only
reason for Respondent's refusal of recognition, such
refusal would be unlawful."
Moreover, the unusual candor of Wollenhaupt's
admission that antipathy for the "Teamsters" contributed
to his rejection of the Union' s demand , inclines me to
credit such testimony, notwithstanding his subsequent
insistence that the independent-contractor issue was the
sole obstacle to recognition. Confirmation of this view is
found in the fact that, as noted above, Thomas, the
manager of the circulation department, expressed to
employees a like aversion to the Teamsters, and asserted
that the Union would never achieve recognition.
Accordingly, it is found that Respondent's refusal of
recognition was motivated, at least in part, by its
opposition to dealing with any affiliate of the Teamsters,
because of considerations unrelated to the Union's
majority status. Such a position is not consistent with
acceptance of the principle of collective bargaining; and, it
is elementary that proof that recognition has been
withheld because of rejection of that principle suffices to
establish a violation of the Act.
Rejection of that principle by Respondent is further
demonstrated by the various unfair labor practices found
above, particularly Thomas' coercive threats to impose
more arduous working conditions and to adopt work
schedules that would interfere with the drivers' second
jobs, and his promise of benefits once the Union was
repudiated. In addition, although not alleged as a
violation, Thomas' statement to employees to the effect
that the Union would never achieve recognition by
Respondent was calculated to discourage adherence to the
Union .41
For all the foregoing reasons, it is found that, by
refusing on and after January 16, to recognize the Union,
Respondent has violated Section 8(a)(5) and (1) of the
Act.
Moreover, even if for any reason Respondent be
deemed not to have violated Section 8(a)(5), it would still
be recommended that, to remedy the various violations of
Section 8(a)(1) found above, and restore the situation
which existed on January 16, when the Union represented
a majority of the instant employees, Respondent be
ordered to bargain with the Union upon request.'°
IV. THE OBJECTIONS TO THE ELECTION
The Regional Director's order of July 8, directed a
hearing on certain of the Union's objections to the
"Keystone Floors, Inc, d/b/a Keystone Universal Carpet Co, 130
NLRB 4, enfd. 306 F 2d 560 (C.A. 3). See Site Oil Company of Missouri,
137 NLRB 1274, enforcement denied 319 F.2d 86 (C A 8).
"Tom Thumb Stores, Inc., supra, United Aircraft Corp, supra
"Even if it be assumed , as Respondent contends, that the foregoing
utterances did not comport with Wollenhaupt's own policy, that
circumstance would not affect the result . Furr's Inc , 157 NLRB 387, enfd
381 F 2d 562 (C A. 10). (There is no contention nor evidence that any such
utterance was specifically repudiated by Wollenhaupt.)
In view of the Board 's position in John P Serpa, Inc, 155 NLRB 99,
and despite court reversal thereof (376 F.2d 186 (C A. 9)), I have not
relied on Respondent's aforenoted failure to keep its promise of January
16 to call the Union as evidence of bad faith, but only as bearing on the
question whether there was, in fact , here a refusal to recognize or bargain.
"Bishop and Malco, Inc, d/b/a Walker's, 159 NLRB 1159, and cases
there cited.
POUGHKEEPSIE NEWSPAPERS, INC.
election , which objections included allegations of
intimidation and coercion , threats of more arduous
working conditions , and promises of benefit, to induce the
employees to reject the Union. In view of the findings
above as to the threats and promises made by Thomas
between the date of the filing of the petition and the date
of the election , and the Schavi-Betros incident in March,
as well as Thomas' assertion that the Union would never
achieve recognition ," it is found that the foregoing
objections are meritorious . It will, accordingly, be
recommended that the election held on April 26, be set
aside , that the petition for election be dismissed , and all
proceedings thereon be vacated.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above , occurring in connection with Respondent's
operations described in section 1, 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 now of commerce.
VI THE REMEDY
Having found that Respondent has engaged in unfair
labor practices violative of Section 8(a)(1) and (5), it will
be recommended that it be required to cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
Having found that since January 16, Respondent has
refused to bargain with the Union as the duly designated
representative of the employees in an appropriate unit, it
will be recommended that Respondent be required to
bargain with the Union , upon request, as the exclusive
representative of said employees , and, if an agreement is
reached , embody such understanding in a, signed
agreement.
CONCLUSIONS OF LAW
1. By threatening employees with more arduous
working conditions and more inconvenient work schedules
if the Union won the election, by promising its employees
economic benefits in order to induce them to refrain from
supporting the Union, and by withholding benefits in
reprisal for employee Union activities , Respondent has
interfered with, restrained , and coerced its employees in
the exercise of the rights guaranteed to them in Section 7
of the Act, and thereby engaged in unfair labor practices
affecting commerce within the meaning of Section 8(a)(1)
of the Act.
2. All employees in Respondent ' s circulation
department , including all motor-route driver-distributors,
county bulk driver-distributor, combination
driver-distributors , city bulk driver-distributors , county
supervisors , city district managers, and mailroom
"Doran credibly testified that such assertion was made in the course of
one of his conversations with Thomas , late in January or early in
February , in which , as found above , Thomas threatened to change the
schedule of the postal employees . In view of such testimony , it is found
that such assertion was made after the filing of the instant petition, and,
hence, during the critical, preelection period.
981
employees, excluding all other employees , office clerical
employees, professional 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.
3. Since at least January 16, the Union has been the
representative of a majority of the employees in the
appropriate bargaining unit.
4. By refusing on and after January 16 to bargain
collectively with the Union as the exclusive representative
of all the employees in the appropriate bargaining unit,
the Respondent has committed unfair labor practices
affecting commerce within the meaning of Section 8(a)(5)
and (1) of the Act.
5. Respondent interfered with freedom of choice in the
election of April 26.
RECOMMENDED ORDER
Upon the entire record in this case , and pursuant to
Section 10(c) of the National Labor Relations Act, as
amended, I recommend that the Respondent,
Poughkeepsie Newspapers, Inc., Poughkeepsie, New
York, its officers , agents, successors, and assigns, shall be
required to:
1. Cease and desist from:
(a) Refusing to bargain collectively with Local Union
No. 445, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, as
the exclusive representative of the employees in the unit
found appropriate above.
(b) Denying to employees loans or any other benefits in
reprisal for their Union activity.
(c) Threatening more arduous working conditions,
inconvenient work schedules , or other reprisals, if its
employees select a labor organization as their
collective-bargaining representative.
(d) Promising employees economic benefits if they
refrain from giving any assistance or support to a labor
organization.
(e) In any like or related manner, interfering with,
restraining, or coercing its employees in the exercise of
their rights to self-organization , to form labor
organizations , to join or assist the Local Union No. 445,
International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America, or any other
labor organization , to bargain collectively through
representatives of their own choosing , or to engage in
other concerted activities for the purposes of mutual aid
or protection , or to refrain from any and all such
acitivities , except to the extent permitted by the proviso in
Section 8(a)(3) of the Act.
2. Take the following affirmative action , which it is
found will effectuate the policies of the Act:
(a) Upon request , bargain collectively with Local Union
No. 445, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, as
the exclusive representative of the employees in the unit
described above, with respect to grievances, disputes, rate
of pay, wages, hours of employment, and other conditions
of employment, and, if an understanding is reached,
embody the same into a signed agreement.
(b) Post at its establishment in Poughkeepsie, New
York, copies of the attached notice marked "Appendix.""
Copies of said notice , on forms provided by the Regional
Director for Region 3, after being duly signed by its
representative , shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60
"In the event that this Recommended Order is adopted by the Board,
982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 said Regional Director, in writing , within 20
days from the receipt of this Decision what steps have
been taken to comply herewith."
IT IS FURTHER RECOMMENDED that the election conducted
by the Board on April 26, 1968, be set aside , that all
proceedings in Case 3-RC-4356 be vacated , and that the
petition therein be dismissed; and, that the allegations of
the complaint as to which no violations have been found
herein be dismissed.
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice . In the further
event that the Board 's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order."
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read: "Notify said Regional Director, in
writing , within 10 days Irom the date of this Order, what steps Respondent
has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board
After a trial at which all sides had the change to give
evidence, the Trial Examiner found that Poughkeepsie
Newspapers, Inc., violated the National Labor Relations
Act, and ordered us to post this notice.
The Act gives all employees these rights:
To engage in self- organization
To form, join, or help unions
To bargain collectively through a representative of
their own choosing
To act together for collective bargaining or other
aid or protection; and
To refrain from any or all of these things
WE WILL NOT do anything that interferes with thes
rights.
WE WILL NOT threaten you with longer workin;
hours or more inconvenient work shedules or with othe
harm because of your membership in or support of
union.
WE WILL NOT refuse to grant you loans because an:
of you are supporting a union.
WE WILL NOT promise you benefits if you give ul
your support of a union.
WE WILL recognize Local Union No. 445
International Brotherhood of Teamsters, Chauffeurs
Warehousemen and Helpers of America, as the onlt
collective-bargaining representative of our employees it
the bargaining unit which is:
All employees in our circulation department
including all motor-route driver-distributors, count
bulk driver-distributors, combinatior
driver-distributors, city bulk driver-distributors.
county supervisors, city district managers, and
mailroom employees, excluding all other employees,
office clericals, professional employees, guards, and
supervisors as defined in the Act.
WE WILL bargain, on request, with Local Union Nt
445, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America.
on wages, hours and conditions of employment, and
any agreement we reach will be put in writing and
signed.
POUGHKEEPSIE NEWSPAPERS
INC.
(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.
Any questions concerning this notice may be directed to
the Board' s Regional Office, Seventh Floor, Drislane
Building , 60 Chapel Street, Albany, New York 12207,
Telephone 518-472-2215.
* U.S. GOVERNMENT PRINTING OFFICE 1971 0-381-117