The Hearst Corp.

National Labor Relations Board - Board Decisions

Sep 30, 1986

281 N.L.R.B. 764 (N.L.R.B. 1986)

764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Hearst Corporation , San Antonio Light Division
and San Antonio Newspaper Guild, Local #25
San Antonio Newspaper Guild , Local #25 and The
Hearst Corporation, San Antonio Light Divi-
sion. Cases 23-CA-7871 and 23-CB-2391
30 September 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 30 June 1981 Administrative Law Judge Wil-
liam J . Pannier III issued the attached decision.
The Respondent, The Hearst Corporation, filed ex-
ceptions and a supporting brief,' Local #25 filed a
brief in response to the exceptions and in support
of the judge's decision, and the General Counsel
filed a brief in support of the judge' s decision.
The Board has considered the decision and the
record in light of the exceptions and briefs and, as
stated below, has decided to affirm the judge's rul-
ings , findings , 2 and conclusions, and to adopt the
recommended Order as modified and set forth
below.
The judge found , and we agree , that the Re-
spondent engaged in numerous violations of Sec-
tion 8(a)(1) of the Act. Thus, the Respondent un-
lawfully sought to solicit employee repudiation of
Local #25 as their bargaining representative, inter-
rogated employees concerning their union sympa-
thies and that of their coworkers, told employees
that their continued representation by Local #25
prevented their receiving better benefits, promised
to increase employee benefits and to improve their
working conditions if they withdrew their support
for Local #25, warned employees to keep away
from officers and supporters of Local #25, instruct-
ed employees on how to rescind their union mem-
bership and dues-checkoff authorization and sug-
gested that they do so, suggested to employees that
they sign petitions opposing Local #25's continued
representation, and urged employees to persuade
their coworkers to withdraw their support for
Local #25.3
1 San Antonio Newspaper Guild, Local #25 (Local #25), the Re-
spondent in Case 23-CB-2391, has not excepted to the judge's findings in
that case. The judge's findings in that case are therefore adopted, except
as modified below. Unless otherwise indicated, the term "Respondent" in
this decision refers only to The Hearst Corporation.
2 The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
3 However, contrary to the judge, we find that Supervisor Chamber-
lain's remark to employees, that he did not think that there was a need
for Local #25, did not violate Sec. 8(a)(1) of the Act. Rather, we find
We also agree with the judge that the Respond-
ent did not have a good-faith doubt of Local #25's
continuing majority status when it withdrew recog-
nition from that labor organization on the basis of
three decertification petitions signed by a majority
of its employees .4 It is well settled that an employ-
er may not lawfully withdraw recognition from an
incumbent union because of an asserted doubt of
the union's continued majority status unless the as-
sertion of doubt is based on objective consider-
ations sufficient to afford the employer a reasona-
ble ground for believing that its employees no
longer desire to be represented by the union.6 The
asserted doubt, however, may not be raised in the
context of any employer activities aimed at causing
employee disaffection with the union.6
Decertification petitions , of the type signed by
the employees here, will generally be sufficient to
cast doubt on a union's continued majority status if
signed by a majority of the employees , and will
afford an employer a reasonable basis for with-
drawing recognition from a labor organization,
provided that, prior thereto, the employer has not
engaged in conduct designed to undermine employ-
ee support for, or cause their disaffection with, the
union.? Where an employer engages in such con-
duct, the decertification petitions will be found to
have been tainted by the employer's unfair labor
practices and the latter , consequently, will be pre-
cluded from relying on the tainted petition as a
basis for questioning the union's continued majority
status and withdrawing recognition from that labor
organization.8
Here , the above-described unfair labor practices
committed by the Respondent occurred prior to
and simultaneously with the circulation of the peti-
tions by employees. Further , it is apparent from the
nature of the unfair labor practices that the Re-
spondent, through its unlawful conduct, sought to
undermine the relationship between its employees
and Local #25, and to cause employee disaffection
that Chamberlain's remark constituted a mere expression of opinion and
was not coercive of employees ' Sec. 7 rights.
4 The three decertification petitions consisted of documents prepared
and circulated by unit employees Martinez, Montano , and Hill, which
read as follows: "WE THE UNDERSIGNED NO LONGER WISH
TO BE REPRESENTED BY THE SAN ANTONIO NEWSPAPER
GUILD LOCAL #25."
5 Celanese Corp., 95 NLRB 664 (1951 ); Terrell Machine Co., 173 NLRB
1480 (1969).
a Pittsburgh & New England Trucking Co, 249 NLRB 833, 836 (1980);
Chicago Magnesium Castings, 256 NLRB 668, 674 (1981). See also Hotel
Employees Local 19 v. NLRB, 785 F . 2d 796 (9th Cir . 1986), enfg. Burger
Pits, Inc., 273 NLRB 1001 (1984).
4 Hydro Conduit Corp., 254 NLRB 433 ( 1981), Sanderson Farms Inc.,
271 NLRB 1477, 1480 (1984). See also Master Slack Corp., 271 NLRB 78
fn. 1 (1984), and Hotel Employees Local 19 Y. NLRB, supra at 3308.
a Pittsburgh & New England Trucking Co., supra; Chicago Magnesium
Castings, supra. See also Mark Twain Marine Industries, 254 NLRB 1095,
1114-1115 (1981).
281 NLRB No. 113
HEARST CORP. 765
for, and repudiation of, Local #25 as their bargain-
ing representative . Under these circumstances we
find, in agreement with the judge, that the petitions
circulated by employees in this case were tainted
by the Respondent's unfair labor practices , and that
the Respondent, consequently , cannot rely on these
petitions to support its asserted doubt of Local
#25's continuing majority status, or to justify its
subsequent withdrawal of recognition of that labor
organization.
Nor is a different result warranted merely be-
cause the Respondent was able to produce 19 em-
ployee witnesses who testified that they were un-
aware of the Respondent 's unlawful conduct.9
Where, as here , an employer engages in unlawful
activity aimed specifically at causing employee dis-
affection with their union, its misconduct , we find,
will bar any reliance on an expression of disaffec-
tion by its employees , notwithstanding that some
employees may profess ignorance of their employ-
er's misconduct .' ° An employer that has engaged
in unlawful conduct, of the type engaged in by the
Respondent, cannot expect to take advantage of
the chance occurrence that some of its employees
may be unaware of its actions. For as the Board
has previously stated , an employer who engages in
efforts to have its employees repudiate their union
must be held responsible for the foreseeable conse-
quence of its conduct."" Here, the Respondent, by
engaging in conduct purposefully designed to cause
employee disaffection with Local #25, began a
chain of events that culminated in the foreseeable
repudiation of that union. In these circumstances,
we are unwilling to allow the Respondent to enjoy
the fruits of its violations by asserting that certain
of its employees did not know of its unlawful be-
havior, but rather shall hold it responsible for the
predictable consequence of its misconduct , i.e., its
employees ' rejection of Local #25 as their bargain-
ing representative . The finding of a violation is not
predicated on a finding of actual coercive effect,
but rather on the "tendency of such conduct to
interfere with the free exercise of employee rights
under the Act." 12 The Respondent 's conduct in
the instant case clearly meets that test.
In view of the above, and as the Respondent has
not met its burden of showing that the petition was
untainted , we agree with the judge that the Re-
9 The bargaining unit consisted of 56 employees . Of the 56 employees
in the unit, 33 signed the petitions . The 19 employee witnesses called by
the Respondent included 17 petition signers and 2 nonsigners.
10 In so finding , we deem it unnecessary to determine whether it was
proper for the judge to draw an adverse inference from the Respondent's
failure to call as witnesses all employees who signed the petitions.
11 Pembek Oil Corp., 165 NLRB 367, 374 (1967), citing Radio Officers
v. NLRB, 347 U.S. 17, 45 (1954). See also Texas Electric Coop., 197
NLRB 10, 15 (1972).
12 Amason, Inc., 269 NLRB 750 fn. 2 (1984).
spondent 's withdrawal of recognition of Local #25
on 19 March 1980 violated Section 8(a)(5) and (1)
of the Act, as did its subsequent unilateral change
in employees ' pay, fringe benefits, and working
conditions.) S
In Case 23-CB-2391, neither the General Coun-
sel nor Local #25 has, as noted , filed exceptions to
the judge's findings . The Hearst Corporation, how-
ever, has excepted to the judge's finding that the
resignation of some of its employees from member-
ship in Local #25 did not serve to revoke their
dues-checkoff authorizations, and to his failure to
find that Local #25's maintenance and enforcement
of art. X, sec . 15, of its constitution , which restricts
a member's right to resign , is unlawful. We fmd
merit in these exceptions.
On the question of the revocation of the dues-
checkoff authorizations , the Board has stated that a
resignation from membership in a union will serve
to revoke a checkoff authorization , even absent a
revocation request , where the authorization itself
makes payment of dues a quid pro quo for union
membership.14 Here , art. III, sec. 1 , of the parties'
collective -bargaining agreement , which pertains to
dues deduction , states , in relevant part, that "upon
an employee's voluntary assignment, the Publisher
shall deduct from the salary account of such em-
ployee and pay to the Guild . . . all membership
dues levied by the Guild for the current month."
(Emphasis added.) The voluntary written assign-
ment set forth in art. III, sec . 1, which employees
13 Although he agrees with the results reached by his colleagues in
this case , Chairman Dotson does not share their view that the commis-
sion of unfair labor practices , of the type engaged in by the Respondent
here, should , ipso facto, bar an employer from attempting to establish,
through independent evidence , that a decertification petition, signed by a
majority of its employees, was not tainted by that unlawful conduct. See,
for example, his partial dissent in Choctawhatchee Electric , 274 NLRB 595
(1985), in which he found that the testimony of all the petition signers (14
in a unit of 19 employees), that they had neither been coerced nor influ-
enced by their employer's unfair labor practices, clearly established that
the petition relied on by their employer to question the union 's majority
status was not tainted by the employer's misconduct . However, Chairman
Dotson notes that in the instant case, unlike in Choctawhatchee , only 19 of
the 56 employees in the unit stated that they were unaware of the Re-
spondent's unlawful conduct . Under these circumstances , he concludes
that the Respondent has not met its burden of showing that the petition
was not tainted by its unfair labor practices . His finding is premised
solely on the Respondent's failure to meet its burden of proof, and not on
any adverse inference gratuitously drawn by the judge from the Re-
spondent's failure to call additional employees as witnesses. In doing so,
Chairman Dotson does not adopt the judge 's finding that the nature of
the Respondent's unlawful remarks to a few employees warrants the in-
ference that the remarks were likely to have been disseminated to other
employees.
14 Machinists Local 2045 (Eagle Signal), 268 NLRB 635 (1984). The
Board in Eagle Signal found that a checkoff authorization, which author-
ized the deduction of dues from "regular monthly dues ... in accord-
ance with regular membership dues," clearly conveyed that the payment
of dues was a quid pro quo for union membership . See Postal Service, 279
NLRB 40 (1986) See also Steelworkers Local 7450 (Asarco, Inc.), 246
NLRB 878 (1979).
766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
execute to authorize the deduction of these mem-
bership dues, in pertinent part, reads as follows:
I hereby assign to the Newspaper Guild of the
San Antonio Light, from any salary earned or
to be earned by me as your employee, an
amount equal to all membership dues lawfully
levied.against me by the Guild for each calen-
dar month following the date of this assign-
ment as certified by the Treasurer of the
Newspaper Guild of the San Antonio Light.
This assignment and authorization supersedes
all previous assignments and authorizations
heretofore given to you by me in relation to
my Guild membership dues.
From the above contractual language, including
the language of the voluntary assignment form, it is
patently clear that the payment of dues by employ-
ees in this case was a quid pro quo for membership
in Local #25, and was not intended to meet any
other financial obligation, such as "financial core"
payments.15 In fact, neither the contract nor the
checkoff authorization form itself makes any provi-
sion for "financial core" membership in Local #25.
Thus, when the employees here terminated their
membership in Local #25, their resignations had
the effect of revoking their dues-checkoff authori-
zations, and any dues paying obligation that had
been incurred by them pursuant to such authoriza-
tions ceased to exist by operation of law on the
date of their resignations . For this reason we find,
contrary to the judge, that by demanding that The
Hearst Corporation continue deducting dues from
the wages of employees who lawfully resigned
their union membership, Local #25 violated Sec-
tions 8(b)(1)(A) and 8(b)(2) of the Act. According-
ly, Local #25 shall be required to refund to em-
ployees who lawfully resigned from its organiza-
tion any and all dues collected from them, with in-
terest,' 6 for the period following their valid resig-
nations and revocation of the dues-checkoff author-
izations.17
is American Nurses' Assn., 250 NLRB 1324 (1980), relied on by the
judge, is distinguishable from the instant case . The contractual provisions
in that case provided for payment of an amount equivalent to fees and
dues either to the union as a member, to the union as a nonmember, or to
a nonreligious, tax-exempt , charitable institution . Here, the language of
art. III, sec. 1, of the parties' collective-bargaining agreement makes clear
that the deduction to be made by the Employer from the wages of em-
ployees pursuant to the voluntary assignment executed by them consists
only of "membership dues levied by the Guild for the current month."
We find this contractual provision to be similar to the contractual provi-
sions in Eagle Signal; Asarco, Inc.; and Postal Service, and find those cases
to be controlling here.
is The employees' entitlement to any monetary relief shall be comput-
ed in the manner prescribed in Ogle Protection Service, 183 NLRB 682
(1970), with interest to be computed in accordance with the formula pre-
scribed in Florida Steel Corp., 231 NLRB 651 (1977).
17 The record indicates that at least one employee , Manuel Gonzales,
may have had dues deducted from his earnings following his lawful resig-
We also find that Local #25 further violated
Section 8(b)(1)(A) of the Act by maintaining and
enforcing art. X, sec. 15, of its constitution, which
restricts the right of its members to resign from
that labor organization. In Machinists Local 1414
(Neufeld Porsche Audi), 270 NLRB 1330 (1984), the
Board held that any restriction on an employee's
right to resign from a union is unlawful, and any
attempt to enforce such an unlawful provision vio-
lates Section 8(b)(1)(A) of the Act. In view of our
finding, Local #25 shall be ordered to expunge the
unlawful provision from its constitution.
ORDER
The National Labor Relations Board orders that
A. The Respondent, The Hearst Corporation,
San Antonio Light Division, San Antonio, Texas,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Soliciting employees to repudiate representa-
tion by San Antonio Newspaper Guild, Local #25;
interrogating employees regarding their union sym-
pathies and activities and those of their coworkers;
telling employees that implementation of better
benefits is being prevented by the continued pres-
ence of Local #25 as their bargaining representa-
tive; promising increased benefits and better em-
ployment conditions if employees would withdraw
their support for and forgo continued representa-
tion by Local #25; warning employees to stay
away from supporters and officers of Local #25;
suggesting that employees resign their membership
in, revoke their dues-checkoff authorizations for, or
sign petitions opposing continued representation
by, Local #25; instructing employees on how to
rescind their membership in, and revoke their dues-
checkoff authorizations for, Local #25; and urging
employees to persuade their coworkers to with-
draw their support for Local #25.
(b) Withdrawing and withholding recognition
from and refusing to bargain with Local #25 as the
exclusive bargaining representative of employees in
the following appropriate bargaining unit:
All employees employed by The Hearst Cor-
poration, San Antonio Light Division in the
circulation department designated as City Cir-
culation District Managers, excluding the Cir-
culation Director, Assistant Circulation Direc-
tor, Circulation Manager, Assistant Circulation
Manager , Home Delivery Manager, and City
Zone Managers.
nation from Local #25. We leave it to the compliance stage of this pro-
ceeding to determine if Gonzales , or any other employee who lawfully
resigned from Local #25, is entitled to this remedial relief.
HEARST CORP. 767
(c) Changing wage rates, health insurance pro-
grams and benefits, and other terms and conditions
of employment of employees in the bargaining unit
without notifying or bargaining with Local #25.
(d) In any like or related manner interfering
with, restraining , or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) On request, bargain with Local #25 as the
exclusive representative of the employees in the
following appropriate unit concerning terms and
conditions of employment and, if an understanding
is reached, embody the understanding in a signed
agreement:
All employees employed by The Hearst Cor-
poration, San Antonio Light Division in the
circulation department designated as City Cir-
culation District Managers, excluding the Cir-
culation Director, Assistant Circulation Direc-
tor, Circulation Manager, Assistant Circulation
Manager, Home Delivery Manager, and City
Zone Managers.
(b) On request by Local #25, reinstate any term
and condition of employment of employees in the
bargaining unit, which it unilaterally changed after
unlawfully withdrawing recognition from Local
#25 on 19 March 1980.
(c) Make employees in the bargaining unit whole
for any loss of benefits resulting from its unilateral
changes in their terms and conditions of employ-
ment in the manner prescribed by the judge in
"The Remedy" section of his decision.
(d) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(e) Post at its principal office in San Antonio,
Texas, copies of the attached notice marked "Ap-
pendix A."118 Copies of the notice, on forms pro-
vided by the Regional Director for Region 23,
after being signed by the Respondent's authorized
representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60
consecutive days in conspicuous places including
all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by the
18 If 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 Nation-
al 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."
Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material.
(f) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
B. The Respondent, San Antonio Newspaper
Guild, Local #25, San Antonio, Texas, its officers,
agents, and representatives, shall
1. Cease and desist from
(a) Refusing to acknowledge, accept, or give
effect to the resignations from union membership
of employees of The Hearst Corporation, San An-
tonio Light Division, or any other employer.
(b) Refusing to honor the revocation of dues-
checkoff assignment by employees who effectively
resigned their union membership, where the em-
ployees' dues-checkoff assignments were in consid-
eration for union membership.
(c) Maintaining and giving effect to art. X, sec.
15, of its constitution, which restricts a member's
right to resign from the Union.
(d) Telling employees of The Hearst Corpora-
tion, San Antonio Light Division, that health insur-
ance or other benefits provided under a collective-
bargaining agreement can be obtained by becoming
a member of the Union.
(e) In any like or related manner restraining or
coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Notify employees of The Hearst Corporation,
San Antonio Light Division, who tendered their
resignations from union membership that their res-
ignations were effective.
(b) Reimburse or refund to employees who re-
signed from the Union the dues unlawfully collect-
ed from them, with interest, for the period follow-
ing their valid resignations from membership and
revocation of dues-checkoff assignment as pre-
scribed in this decision.
(c) Expunge from its constitution art. X, sec. 15,
which restricts the right of its members to resign
from the Union.
(d) Notify employee Manuel Gonzales, in writ-
ing, that membership in the Union is not required
to obtain or enjoy health insurance or other em-
ployment benefits secured by it as his bargaining
representative from The Hearst Corporation, San
Antonio Light Division.
(e) Post at its business office in San Antonio,
Texas, copies of the attached notice marked
"Appendix."B 19 Copies of the notice , on forms
19 See fn . 18, supra.
768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
provided by the Regional Director for Region 23,
after being signed by the Respondent 's authorized
representative , shall be posted by the Respondent
immediately upon receipt and maintained for 60
consecutive days in conspicuous places including
all places where notices to members are customari-
ly posted . Reasonable steps shall be taken by the
Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material.
(f) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join , or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT solicit you to repudiate your rep-
resentation by San Antonio Newspaper Guild,
Local #25.
WE WILL NOT interrogate you regarding your
own union sympathies and activities or those of
your fellow employees.
WE WILL NOT tell you that implementation of
better benefits is being prevented by the continued
presence of San Antonio Newspaper Guild, Local
#25, as your bargaining representative.
WE WILL NOT promise increased benefits and
better employment conditions to you if you will
withdraw your support of and forgo continued rep-
resentation by San Antonio Newspaper Guild,
Local #25.
WE WILL NOT warn you to stay away from sup-
porters and officers of San Antonio Newspaper
Guild, Local #25.
WE WILL NOT suggest that you resign your
membership in, revoke your dues-checkoff authori-
zation for, or sign petitions opposing continued
representation by, San Antonio Newspaper Guild,
Local #25.
WE WILL NOT instruct you on how to rescind
your membership in and revoke your dues -checkoff
authorizations for San Antonio Newspaper Guild,
Local #25.
WE WILL NOT urge you to persuade your co-
workers to withdraw their support of San Antonio
Newspaper Guild , Local #25.
WE WILL NOT withdraw and withhold recogni-
tion from and refuse to bargain with San Antonio
Newspaper Guild , Local #25, as the collective-bar-
gaining representative of.
All employees employed by The Hearst Cor-
poration , San Antonio Light Division in the
circulation department designated as City Cir-
culation District Managers , excluding Circula-
tion Director, Assistant Circulation Director,
Circulation Manager, Assistant Circulation
Manager , Home Delivery Manager and City
Zone Manager.
WE WILL NOT change wage rates, health insur-
ance plans or benefits , or other terms and condi-
tions of employment of employees in the above-de-
scribed bargaining unit without prior notification to
and bargaining with San Antonio Newspaper
Guild , Local #25 , as the representative of those
employees.
WE WILL NOT in any like or related manner
interfere with, restrain , or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL, on request, bargain collectively with
San Antonio Newspaper Guild , Local #25, as the
exclusive bargaining representative of all employ-
ees in the above-described bargaining unit , respect-
ing rates of pay , wages, hours of employment, or
other terms and conditions of employment and, if
any understandings be reached , embody such un-
derstandings in a signed agreement.
WE WILL, on request by San Antonio Newspa-
per Guild, Local #25 , reinstate any terms of em-
ployment of employees in the above -described bar-
gaining unit that were unilaterally changed follow-
ing our unlawful withdrawal of recognition from
San Antonio Newspaper Guild , Local #25, as the
bargaining representative of those employees on 19
March 1980.
WE WILL make you whole for any losses of ben-
efits that you have sustained because of our unilat-
eral changes in your terms of employment follow-
ing our unlawful withdrawal of recognition from
San Antonio Newspaper Guild , Local #25, as the
bargaining representative of employees in the
HEARST CORP.
above-described appropriate unit , on 19 March
1980, with interest paid on the amounts owed.
THE HEARST CORPORATION, SAN
ANTONIO LIGHT DIVISION
APPENDIX B
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT restrain or coerce employees in
the exercise of rights guaranteed by Section 7 of
the National Labor Relations Act, by refusing to
accept or acknowledge the effectiveness of their
resignations from union membership.
WE WILL NOT tell employees of The Hearst Cor-
poration , San Antonio Light Division, that health
insurance or any other benefits provided by a col-
lective-bargaining agreement with it can be ob-
tained by becoming a union member.
WE WILL NOT refuse to honor the revocation of
dues-checkoff assignment by employees having ef-
fectively resigned from union membership, where
the employees' dues-checkoff assignment was in
consideration for union membership.
WE WILL NOT maintain , or give effect to, art. X,
sec. 15 , of our constitution, which restricts the
right of our members to resign from the Union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL reimburse or refund to employees who
resigned their union membership the dues unlaw-
fully collected from them with interest for the
period following their valid resignations and revo-
cation of dues-checkoff assignments.
WE WILL notify employees of The Hearst Cor-
poration , San Antonio Light Division, who ten-
dered resignations from the Union , that their resig-
nations are effective.
WE WILL notify employee Manuel Gonzales, in
writing , that union membership is not required to
obtain health insurance and other employment ben-
efits secured by San Antonio Newspaper Guild,
Local #25, as his collective-bargaining. representa-
tive, from The Hearst Corporation, San Antonio
Light Division.
WE WILL expunge from our constitution art. X,
sec. 15 , which restricts the right of our members to
resign from the Union.
SAN ANTONIO NEWSPAPER GUILD,
LOCAL #25
769
Theodore Arter III, Esq., for the General Counsel.
George P. Parker Jr., Esq. and Charles J. Fitzpatrick Esq.
(Matthews, Nowlin, Macfarlane & Barrett) of San Anto-
nio, Texas, for the Respondent Employer.
Frank Herrera Jr., Esq., and Bruce Beal, Esq. (Hardberger
& Herrera), of San Antonio , Texas, for the Respondent
Union.
DECISION
STATEMENT OF THE CASE
WILLIAM J. PANNIER III , Administrative Law Judge.
This matter was heard by me in San Antonio, Texas, on
October 29-31, and November 18-20, 1980.1 On May 5,
the Regional Director for Region 23 of the National
Labor Relations Board (the Board) issued a complaint
and notice of hearing in Case 23-CA-7871, based on an
unfair labor practice charge filed on March 19 , alleging
violations of Section 8(a)(1) and (5) of the National
Labor Relations Act, 29 U.S.C. § 151 et seq. (the Act).
Thereafter, the Regional Director issued an amendment
to complaint on August 12. On October 9, the Acting
Regional Director for Region 23 issued an amended
complaint and notice of hearing adding additional viola-
tions of Section 8(a)(1) and (5) of the Act. On May 9, the
Acting Regional Director issued a complaint and notice
of hearing in Case 23-CB-2391, based on an unfair labor
practice charge filed on March 25 and amended on May
7, alleging violations of Section 8(b)(1)(A) and (2) of the
Act. On May 14, the Regional Director issued an order
consolidating cases, consolidating the complaints issued
in the above-described cases for hearing and decision.
All parties have been afforded full opportunity to
appear, to introduce evidence, to examine and cross-ex-
amine witnesses , and to file briefs. Based on the entire
record,2 the briefs filed on behalf of the parties, 3 and my
observation of the demeanor of the witnesses, I make the
following
FINDINGS OF FACT
I. JURISDICTION
At all times material, the Hearst Corporation, San An-
tonio Light Division (Respondent Employer) has been a
Delaware corporation engaged in the publication, circu-
lation , and distribution of the San Antonio Light , a daily
newspaper in the San Antonio , Texas area, with its prin-
cipal office located on Broadway and, since January,
with a satellite office located on Jones Maltsberger
Road , both in San Antonio. During the 12-month period
preceding issuance of the complaints in this matter, Re-
All dates unless otherwise stated occurred in 1980.
' Certain errors in the transcript are noted and corrected.
s I deny Respondent Employer's motion to strike that portion of the
General Counsel 's brief reproducing only a portion of Josephine Wilker-
son's testimony . It is accurate, as Respondent Employer asserts, that as
Wilkerson's testimony progressed she, in effect, retracted her quoted an-
swers. However, it has been my experience that it is not unusual for
briefs to quote only portions of testimony that are favorable , while ignor-
ing those that are adverse. Accordingly, although I do not condone the
practice, I do not find its presence to be a basis for striking portions of
briefs.
770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent Employer, in the course and conduct of its
business operations , derived gross revenues in excess of
$200,000, held membership in or subscribed to various
interstate news services including United Press Interna-
tional, published various nationally syndicated features,
and advertised nationally sold products . Therefore, I
find, as admitted by the answers filed in this matter, that
at all times material Respondent Employer has been an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
At all times material , San Antonio Newspaper Guild,
Local #25 (Respondent Union) has been a labor organi-
zation within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Factual Structure and Issues
Respondent Employer's history of bargaining relation-
ships with labor organizations originated in the late
1930s . By the late 1970s, it had evolved to the point
where collective-bargaining relations existed with five
labor organizations, one of which was Respondent
Union . The latter represented employees of Respondent
Employer in two separate bargaining units : one of, in es-
sence , editorial, business office , and maintenance employ-
ees, and truckdrivers ; and, the other being a unit of all
employees employed in the circulation department desig-
nated as city circulation district managers , excluding cir-
culation director, assistant circulation director , circula-
tion manager , assistant circulation manager , home deliv-
ery manager , and city zone managers .4 During the latter
half of the 1960s Respondent Union had been certified as
the bargaining representative for this unit of Respondent
Employer's city circulation district managers (DMs).5
Thereafter, a series of collective-bargaining contracts
were negotiated , with the last one having a stated term
of June 14 , 1978 , to March 18, 1980. Two aspects of that
agreement are of significance in this matter.
First, it, in effect, continued in force a prior practice,
that had arisen before it had been negotiated , concerning
health and life insurance . In lieu of the insurance provid-
ed by Respondent Employer , Respondent Union had ar-
ranged for health insurance to be provided to employees
in the units it represented by Blue Cross-Blue Shield.
Manuel Gonzales , a district manager , testified that in
October 1979, he had asked Shop Steward Gilbert
Suarez6 how Gonzales could obtain health insurance and
that Suarez had replied that Gonzales could do so by
joining Respondent Union . Suarez testified that he had
never told anyone that they had to be a member of Re-
* It is admitted that this unit is one that is appropriate for the purpose
of collective bargaining within the meaning of Sec. 9(b) of the Act.
5 The complaint in Case 23-CA-7871 recites that the certification
issued on March 22, 1967 . The complaint in Case 23-CB-2391 recites
that it issued on April 4, 1969. Inasmuch as all parties agree that a certifi-
cation did issue and in view of the fact that the events forming the basis
of the alleged unfair labor practices did not occur until 1980 , the differ-
ence in dates is not material.
6 It is admitted that at all times material Suarez had been an agent of
Respondent Union within the meaning of Sec . 2(13) of the Act.
spondent Union to be eligible for coverage under the
Blue Cross-Blue Shield program . However, he testified
that he had no independent recollection of having talked
to Gonzales regarding Respondent Union or the health
insurance . Gonzales testified that he then had joined Re-
spondent Union because "I need that medical insurance,
and that's the way I understood by joining the Union I
would have the insurance."
The second facet of the contract significant to the
issues posed in this matter is the checkoff provision, arti-
cle III of the agreement. It provides , inter alia, that an
employee can revoke a written assignment of dues by
... written notice of its revocation . . . given by
[the employee] to [Respondent Employer] and [Re-
spondent Union] by registered mail not more than
thirty (30) days and not less than fifteen (15) days
prior to the expiration of each [anniversary of the
date on which the employee signed the authoriza-
tion or the terminal date of the collective-bargain-
ing agreement] whichever occurs sooner."
Historically , relations between Respondent Union and
Respondent Employer had been amicable . However, the
General Counsel alleges that in the fall of 1979 Respond-
ent Employer initiated a campaign to undermine the
DMs' support for Respondent Union and to have it
eliminated as their bargaining representative . In this re-
spect , the General Counsel points to four individuals
who, he contends, conducted this campaign: Jim Engle,
who had commenced employment as Respondent Em-
ployer's assistant general manager on July 20, 1979;
Ogden Chamberlain, who was city home delivery man-
ager and who, before becoming a supervisor , had been
an active member and officer in Respondent Union;
Ernest Salinas, who became a zone manager on February
4; and, Zone Manager Ronald G . Jehl.7
Between February 27 and March 4, seven district man-
agers mailed letters pertaining to their union membership
and/or checkoff authorizations . Thus, by letters post-
marked February 27, sent to both Respondents , District
Manager Judy Estrada stated : "I Judy A . Estrada wish
to withdraw my membership wish [sic] the San Antonio
Newspaper Guild as of this day." On that same date,
District Manager Manuel Gonzales also sent letters to
Respondents. In the one sent to Respondent Employer,
he stated: "I am notifying you effective immediately to
stop deduction on my Union Dues ." However, in his
letter to Respondent Union , Gonzales stated : "I am noti-
fying [sic] my resignation to [sic] the Newspaper guild
[sic] effective immediately ." Two sets of letters were
sent to Respondents on the following day. In the letters
sent to each one of them , District Manager Josephine
Wilkerson stated : "I wish to withdraw from the union."
Part-time District Manager Gerald Fullbright stated in
his letters to each of them : "I no longer find it necessary
r It is admitted that at all times material , Engle and Chamberlain had
been supervisors within the meaning of Sec . 2(11) of the Act and agents
of Respondent Employer . Moreover, while it was not disputed that the
zone manager position had been a nonunit supervisory one, Respondent
Employer denied that Salinas and Jehl had been its agents for all pur-
poses.
HEARST CORP.
to be a member of the union & I desire to terminate my
membership." On February 29, then full-time District
Manager Edward Montano sent identical letters to Re-
spondents , which stated : "I WISH TO DISCONTINUE
MY MEMBERSHIP TO [sic] THE SAN ANTONIO
GUILD." On the following day District Manager Ray-
mond Martinez sent a letter to Respondent Employer
stating : "I Raymond Martinez have resign [sic] from The
Newspaper Guild. I Raymond Martinez request that all
money that is being detach [sic] from my pay to The
Newspaper Guild, should cease as of now . Thank you."
On that same date , he sent a letter to Respondent Union
in which he stated : "I Raymond Martinez request to
resign as Shop Steward [sic] and from the Newspaper
Guild Thank you." Finally , by letter postmarked March
4, District Manager Douglas Donaubauer notified Re-
spondent Union that "I wish to resign as a member of
the San Antonio Light Guild." Donaubauer failed to
send a similar letter to Respondent Employer.
Article X, section 15 , of Respondent Union's constitu-
tion provides, inter alia, that a member who seeks to
withdraw or to resign from membership must submit a
request "in writing to the governing board of the Local,
together with the reasons , in detail , for such contemplat-
ed withdrawal or resignation."s That section continues
on to state that the governing board shall vote on wheth-
er to accept or to reject the withdrawal or resignation,
and that if the member 's offer is rejected, "the member-
ship obligations of the member making such offer shall
continue in full force and effect." On March 6, Respond-
ent Union 's president , Bruce Beal, sent a letter to Mau-
rice Cotton, Respondent Employer's general manager,
stating , in pertinent part:
The Guild has received, and understands you have
received , several letters from individuals in some
cases involving dues authorization , and in some
,cases concerning membership.
Please be advised that the Guild has received valid
revocation of dues notices from only three individ-
uals: Felix Aguirre, Larry Thomas and James
Hudson.
Therefore, it is the Guild's position that dues should
be remitted for all other persons on the February
dues list.
On March 11, Beal sent essentially identical letters to
each of the seven above-named employees who had sent
letters to Respondent Union, in which he recited the
constitutional requirement that requests to resign be ac-
companied by statements of reasons and then stated:
While you have indicated your wish to resign,
your dues deduction authorization will remain in
effect in accordance with article III of the contract,
meaning your dues will continue to be deducted. I
would ask that you notify the executive committee
6 The final sentence of that article and section reads "no resignation or
withdrawal may be accepted during a strike or lock out, or at a time
when a strike or lock out appears imminent."
771
in writing of the reasons for your request to resign
so that it may be acted upon.
March 11 was also the date of a letter from Cotton to
Beal, sent in reply to Beal's March 6 letter . In his letter,
Cotton pointed out that Beal had "indicated that [Re-
spondent Union] had received letters from other individ-
uals which your Union does not consider to be valid rev-
ocation notices," but neither names these individuals nor
explains the basis for the claimed invalidity ; requested
that Respondent Union furnish the names of all individ-
uals who had sent such letters and an explanation why
Respondent Union did not consider their letters valid
revocation notices, in order for Respondent Employer to
"properly evaluate [Respondent Union] 's position in this
matter based upon all available relevant information";
and, requested that Respondent Union also furnish copies
of each of the employee letters " [t]o insure that [Re-
spondent Employer] has copies of all letters referenced
in your March 6 communique, as well as those received
by [Respondent Union] thereafter . . . ." Respondent
Union neither responded to this letter nor did it provide
the information requested in Cotton's letter. Instead, at
the beginning of each month through September, Re-
spondent Union included DMs who sent letters on its
list, sent to Respondent Employer , of employees for
whom dues should be deducted and transmitted to Re-
spondent Union . However, Respondent Employer imme-
diately ceased deducting dues for those DMs that it
knew had sent the above-described letters.9
During the time these letters were being exchanged,
events were evolving in another area. Then District
Manager Raymond Martinez10 testified that during the
week of March 3-7 he learned from the stewards that
Respondent Union intended to take the position that
Martinez' dues were still deductible , notwithstanding his
letter to Respondent Union resigning as its steward and
member . Thus, Martinez testified he had prepared a peti-
tion" and then circulated it among the employees.
9 As noted above, Donaubauer had sent his letters only to Respondent
Union . When his March dues were deducted, he complained to Respond-
ent Employer, displaying the return receipts for the letters that he had
sent to Respondent Union , and Cotton notified the payroll department to
cease making checkoff deductions for him.
10 By the time of the hearing Martinez had become a temporary zone
manager.
11 The legend on this petition reads : "WE THE UNDERSIGNED
NO LONGER WISH TO BE REPRESENTED BY THE SAN ANTO-
NIO NEWSPAPER GUILD LOCAL #25." Martinez testified that he
had used this wording because in approximately 1956, while working at a
bar, the Carousel , in Long Beach , California, and while a member of a
local of the Bartenders Union, he had signed a petition that had been
similarly worded , during a time when employees there had been attempt-
ing to be relieved of representation by that labor organization. During
the hearing, Respondent Union telephoned Bartenders Union Local 681
in Long Beach and, after speaking with a receptionist and staff member,
reported back that their search had disclosed no record of Martinez ever
having been a member of that local nor of any decertification petition in-
volving that local having been filed during 1954 through 1956. Although
I received this testimony , to ascertain if ultimately there would be any
reliable evidence produced concerning the matter of Martinez' back-
ground at the Carousel, I place no weight on it. At the outset, it is sec-
ondhand hearsay being Respondent Union's account of Local 681 's offi-
cials account of what its records disclosed . There was no opportunity af-
forded for testing the accuracy of the Local 681 officials ' account of
Continued
772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Later, he had been joined in this effort by then-District
Managers Edward Montano and Steve J. Hill,12 each of
whom prepared and circulated his own petition. By
March 18, a total of 33 of the 56 full-time and part-time
DMs then in the bargaining unit had signed the three pe-
titions,1 s which were submitted to Respondent Employ-
er by Montano and Hill.
Having been given the petitions on March 19, Re-
spondent Employer sent a letter to Respondent Union
withdrawing recognition of it as the bargaining repre-
sentative of the DMs. On the following day, it posted a
notice, without prior notification to Respondent Union,
announcing wage increases for DMs, effective March 19.
On March 21, also without prior notification to Respond-
ent Union, Respondent Employer posted a notice recit-
ing that all full-time DMs employed regularly for 90
days were qualified to apply for Respondent Employer's
Aetna insurance program.
The General Counsel alleges that Respondent Employ-
er violated the Act by having made certain remarks to
employees, commencing in the fall of 1979 and continu-
ing through the winter months of 1979-1980, which,
contends the General Counsel, violated Section 8(a)(1) of
the Act. Therefore, argues the General Counsel, in light
of this background of an antiunion campaign, by with-
drawing recognition from Respondent Union as the bar-
gaining representative of the DMs and thereafter by
making unilateral changes in their terms and conditions
of employment, Respondent Employer violated Section
8(a)(5) and (1) of the Act. Regarding Respondent Union,
the General Counsel alleges that it violated the Act by
maintaining the restrictions on membership withdrawals
and resignations found in article X, section 15, of its con-
stitution; by insisting that dues continue to be deducted
for the seven employees who had sent letters to it in
February and March; by refusing to allow them to resign
from membership and/or to revoke their dues checkoff
authorizations; by refusing Respondent Employer's
March 11 request for information pertaining to the iden-
tities of other employees who had sent similar letters to
Respondent Union; and by telling Gonzales that he had
to become its member to obtain health insurance. In re-
solving these issues , the only additional area that needs
to be explored by further recitation of facts is the one
pertaining to the purported statements made to DMs by
Chamberlain, Engle, Salinas, and Jehl.
what its records failed to disclose, nor for testing the completeness of
either the search made of its records or of the completeness of its
records, by now over 2 decades old. Further, even if Local 681 had
never been involved in a decertification proceeding in the 1950s, that
would still not refute Martinez' account of having signed a petition to
decertify it during the middle of that decade. For, that decertification
effort may have foundered for lack of sufficient employee support, with-
out the petition ever being filed, or the Carousel may simply have with-
drawn recognition without a petition ever having been filed with the ap-
propriate Regional Office, as has taken place in this case
la Montano had been a full-time DM at that time, but had become a
part-time DM by the time of the hearing. Hill became a zone manager in
the fall.
rs Although there are 34 signatures on the petitions , District Manager
Nancy Wigley had signed two of them
B. The Comments Attributed to Chamberlain
Most of the remarks attributed to Respondent Employ-
er's officials assertedly had been made by Chamberlain.
Former DM Lucero testified that during his job inter-
view, on October 17, 1979, Chamberlain said that while
he had been Respondent Union's president and had nego-
tiated the then-existing collective-bargaining contract he
did not think that there was a need for Respondent
Union because Engle was now "running the show"; that
without Respondent Union, DMs would not have to
work as hard inasmuch as Respondent Employer would
be getting part-time employees to do the drops (leave the
bundles of newspapers for the carriers) and the DMs
would be driving company cars; and, that while stewards
Suarez or Alice Jordan would be asking Lucero to join
Respondent Union he should "stay away from them be-
cause they were bad apples, they were . . . good exam-
ples of low performers, district managers, because of
their involvement with the Union." On November 3,
1979, Lucero testified Chamberlain had pursued the
matter by inquiring if any of the stewards had contacted
Lucero and if he had joined Respondent Union. Accord-
ing to Lucero, when he had replied that he had signed
papers to join Respondent Union, Chamberlain had ad-
monished him to think about what had been said during
the interview and that while he was not telling Lucero
to join or not to do so he wanted Lucero to think about
it. Lucero testified that during this conversation Cham-
berlain had repeated the promise that DMs would have
an easier job, would not have to make drops, and would
get company cars without Respondent Union. 14
Chamberlain's testimony that he merely had advised
prospective employees, during their job interviews, of
Respondent Union's existence and of their option to
freely choose whether to join it was not without support.
Other DMs-particularly Belinda Kay Worthy and Pa-
tricia Harrigan, who had been interviewed and hired
after Lucero, but before Respondent Employer had with-
drawn recognition from Respondent Union-testified
that Chamberlain had so advised them. Conversely, how-
14 Chamberlain agreed that he had interviewed Lucero, but demed
having made the unlawful remarks regarding Respondent Union that
Lucero attributed to him during the interview and during the asserted
November 3, 1979 conversation. He conceded that he had mentioned Re-
spondent Union to Lucero during the interview, but claimed that, as had
been his practice, he had merely advised Lucero of its existence and of
Lucero's right to join it or not to do so as he saw fit
Lucero, who has resigned employment with Respondent Employer by
the time of the hearing, testified that Chamberlain had repeated his prom-
ises-about work becoming easier, elimination of drops by DMs and
company cars-at least once a week until Lucero had refused to sign a
statement for Respondent Employer's co-counsel, then engaged in trial
preparation in June Lucero further testified that it had been the fact that
these promises had gone unfulfilled had lead him to conclude that Re-
spondent Employer was making false promises, to inquire of some of Re-
spondent Union's supporters about how to file a charge with the Board
and to come to the Board's resident office, where he gave an affidavit. It
is undisputed that during the interview with Respondent Employer's co-
counsel Lucero had denied that anyone from management had spoken to
him about getting rid of Respondent, Union or had influenced him in
anyway to sign the petition circulated by Raymond Martinez However,
it is also undisputed that when asked to do so Lucero had refused to sign
a written statement embodying those denials, asserting that he had signed
the petition "and that speaks for me and I don't see any reason why I
should sign anything more on the same subject."
HEARST CORP. 773
ever, Lucero was not the only DM or former DM to at-
tribute unlawful remarks to Chamberlain during an inter-
view . Judy Estrada testified that during her interview in
early November 1979 Chamberlain said that there was a
union at Respondent Employer of which he had been a
member and officer, that things had been hard back then
and a union really had been needed , that things had
changed and he had resigned from Respondent Union,
and that there was no need for a union now as Engle
was a very good director. 1 s
Former DM Sharon Cooper described a meeting on
December 7, 1979, in which, according to her , Chamber-
lain had pursued a somewhat different tack than he had
assertedly done during his interviews with Lucero and
Estrada. As described more fully , infra, Cooper testified
that in September 1979 Engle had assigned her to teach
other DMs how to recruit and train carriers, telling her
that if she was successful in this assignment a better one
would be given to her at the beginning of the year.
Engle did not deny that in late November or early De-
cember 1979 he had told Cooper to wrap up the work
remaining in her assignment as he intended to reassign
her to a new project . According to Cooper, his brief de-
scription of it had left her feeling enthusiastic.
However, Cooper testified that on Friday , December
7, 1979, Chamberlain told her that there had been a
change in plans, that she was not to be assigned to the
new project and instead would have to return to per-
forming the ordinary duties of a DM, and that she would
not be getting the newly purchased truck that had been
promised to her . According to Cooper , Chamberlain ex-
plained that he had hired two individuals , Jim McLaugh-
lin and Ken Reynolds , at the rate of $240 per week, that
that rate was higher than the one specified in the collec-
tive-bargaining contract for newly hired employees with-
out experience in the newspaper field, that Respondent
Union would not permit them to be hired at that rate,
and that , as a result, he would have to assign them to
serve as assistant rural zone managers in training, give
them the new truck promised previously to Cooper and
assign her to perform the city DM work , to which one
of them would have been assigned but for Respondent
Union 's objection, until he could work out the problem.
Cooper testified Chamberlain continued the conversation
by saying that the only way that she could be assigned
15 Chamberlain agreed that he had interviewed Estrada , but testified
that he had said no more about Respondent Union than that it represent-
ed the DMs and that she was free to join or not join it as she saw fit. He
denied specifically having told her that Respondent Union was not neces-
sary in the circulation department . Estrada agreed that it had been her
impression, during the interview , that it was her own business whether
she joined Respondent Union.
As was true of Lucero , Estrada had been interviewed by Resondent
Employer's co-counsel in June . She testified that by that time she had
"started getting second thoughts and I started noticing the way the Com-
pany really was." It is undisputed that during that interview Estrada had
said that no one in Respondent Employer 's management had said any-
thing to her about getting rid of Respondent Union . Later, in August,
after Estrada's employment with Respondent Employer had terminated,
Respondent Union had filed an unfair labor practice charge , alleging that
Respondent Employer had unlawfully constructively discharged her on
May 30 and, after having reinstated her, had unlawfully terminated her
on June 23 . This charge was dismissed due to "insufficient evidence of
violation." Finally, it should be noted that Lucero was , as Estrada char-
acterized it, her "boyfriend."
to the new project and avoid reassignment to ordinary
DM work would be to become "a tool in breaking up"
Respondent Union, which he claimed "was standing in
the way of the new company," that there was a window
clause in the collective-bargaining contract permitting
employees to withdraw from membership 30 days prior
to and 30 days after negotiations commenced, that she
would have to be strong in breaking up Respondent
Union before negotiations commenced in March and
that, if she succeeded , she could be assigned to the new
project, and "we could run the Company with profes-
sional men and women in the positions of full-time dis-
trict managers ." Cooper testified that Chamberlain had
explained that he had a plan to accomplish this objective
by establishing a pilot project whereby 1980 Ford Fair-
mont stationwagons would be leased for DMs in one
zone to keep 24 hours a day and two step -side vans
would be leased to make the drops in that zone , thereby
enabling full -time DMs to have staggered days off. Ac-
cording to Cooper, Chamberlain concluded the conver-
sation by saying that Engle was backing this plan, that it
would be presented to the publisher on the following
Monday, and that wages could not be increased because
the collective-bargaining contract specified when and
how DMs were to get pay increases. t 6
A number of antiunion remarks were attributed to
Chamberlain during 1980. Thus, Lucero testified that on
approximately January 3 he was summoned to Chamber-
lain's office where Chamberlain had asked if Estrada had
decided to get out of Respondent Union. When, testified
Lucero, he had replied that Estrada was thinking about
it but was not yet certain what to do, Chamberlain had
said "to talk to Judy to try to get her to resign," giving
Lucero the dates on which she could do so and adding
that she would have to send one letter , by registered
16 Chamberlain testified that he had told Cooper in December 1979
that her assignment training other DMs would be ended and that she
would have to resume ordinary DM work. However , he denied that
there had been a discussion of Respondent Union during that conversa-
tion and , further, denied expressly having told her that Respondent Em-
ployer wanted her to break up Respondent Union , that it was necessary
to get rid of Respondent Union to improve working conditions and the
quality of DMs, that there would be a chance to get rid of it when the
collective-bargaining contract expired in March , how to get out or get
rid of Respondent Union, and that Respondent Union was responsible for
the DMs not receiving wage increases. Instead , Chamberlain testified that
Cooper had balked at resuming ordinary DM duties and that he had sug-
gested that she accept "an independent dealership , similar to what she
had in Illinois." According to Chamberlain , when she had expressed in-
terest in doing so he sent her to the rural home delivery manager for an
interview and then she changed her status to that of an independent
dealer.
Although Cooper denied harboring any "great animosity" toward Re-
spondent Employer , she ultimately had been terminated by Respondent
Employer and she admitted that she had been "very unhappy " with the
treatment that she felt Respondent Employer had accorded her. Indeed,
she had interceded voluntarily before the Texas Employment Commis-
sion on behalf of former Steward Jordan , who was Cooper 's friend, when
Jordan had been terminated by Respondent Employer. Further, Cooper
claimed that following the meeting with Chamberlain she campaigned
against Respondent Union , speaking with virtually every DM employed
by Respondent Employer except Wilkerson . But not one DM corroborat-
ed Cooper in this regard . In fact, Jordan and Ann Burkowski both refut-
ed Cooper's testimony that she had spoken with them about getting rid of
Respondent Union.
774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mail, to Respondent Union and another to Respondent
Employer's payroll department. 17
Estrada described a conversation with Chamberlain
that had taken place in his office on Monday, January 7.
She testified that on the immediately preceding workday
he had notified her that she and Lucero would be
switching districts. Then, testified Estrada, on Monday
she had been called to Chamberlain's office where, after
describing the effects of the switch, he had asked if she
was a member of Respondent Union. According to Es-
trada, when she replied that she had joined it, Chamber-
lain said that there was no need to have Respondent
Union anymore "because things weren't the way they
use to be," that things had been "pretty tough" and DMs
"had to work 7 days a week," that it had become a little
bit easier and would be "a lot easier" without Respond-
ent Union, that the DMs probably could have their own
little cars and stationwagons, that part-timers would do
the drops every day, that the DMs would be able to
have extra days off, and that the DMs would not be
obliged to take a lunchbreak with the result that they
would not have to work a strict 40-hour week.18
As had Lucero and Estrada, former DM Thomas
"Gerry" Martinez 19 testified that during his job inter-
view Chamberlain had made comments about Respond-
ent Union exceeding the latter's ordinary remarks to ap-
plicants. As described more, fully infra, Martinez testified
that on Sunday, February 3, Salinas had come to the
Martinez home and had encouraged Martinez to apply
17 Although Chamberlain did not deny having participated in this con-
versation with Lucero about January 3, he did deny ever having asked
Lucero whether Estrada had decided to get out of Respondent Union,
having ever advised Lucero to urge Estrada to get out of Respondent
Union, and having ever informed Lucero of the dates on which employ-
ees could get out of Respondent Union or of how employees could go
about getting out of it
It is undisputed that on one occasion, Lucero had told Jehl that
Lucero was hoping that Estrada would try to get out of Respondent
Union and that he was not trying to persuade her to do so because he
was not wasting his money and he did not want her to waste her money.
However, Jebl, who provided this account of what Lucero had said, was
unable to recall the date of this conversation. Thus, it cannot be conclud-
ed that Lucero's remarks to Jehl had been occasioned by causes other
than the encouragement and promises of Chamberlain.
18 Chamberlain denied having questioned Estrada about her intentions
regarding membership in Respondent Union and denied having made the
promises that she attributed to him. However, while both Chamberlain
and then-Zone Manager Arthur Cavillo testified that the latter had been
the one who had met with Estrada and Lucero to discuss the switch of
their districts and who had decided at that meeting, which Chamberlain
did not attend, to make the switch, telling them so at that time, Chamber-
lain did not deny having later discussed the switch with Estrada, nor is it
inherently inconceivable that he would have discussed the switch with
her after Cavillo had announced to her that it would take place.
Cavillo testified that on two occasions, once in December 1979 or Jan-
uary 1980 and again in late January or early February, Estrada had asked
him how to go about getting out of Respondent Union and that he had
promised to get back to her with the answer but had never done so Es-
trada denied that she had ever asked Cavillo how to get out of Respond-
ent Union. Jehl testified that in late February Estrada said that she
wanted to get out of Respondent Union because she was tired of paying
union dues for nothing, and wanted to know what she was supposed to
do to get out. However, Estrada denied that she had ever discussed Re-
spondent Union with Jehl, denied ever asking him how she could get out
of Respondent Union, and denied ever telling him that the dues were too
expensive and she did not want to pay them.
ls' Not to be confused with Raymond Martinez who, as discussed
supra, initiated the petition to rid the DMs of Respondent Union's repre-
sentation.
for the position of DM. On the following Monday or
Tuesday, Martinez testified he had gone to Respondent
Employer and had been interviewed by Chamberlain, in
Salinas' presence. According to Martinez, after Chamber-
lain had described the duties of a DM, he had raised the
subject of Respondent Union, saying that he felt that
unions were okay but that he did not feel that a union
was good in the circulation department as it tended to tie
management's hands; that without Respondent Union
"tieing him up," he "could work things a little better";
that DMs probably could get out of pickup trucks and
into cars, that other personnel could make the drops for
DMs, and that this would free the DMs to check their
districts; and that "if we got that Union out of the way
that increases would come a lot better, pay increases, in-
creases in pay."zo
Martinez testified that from the time he had com-
menced working until late February Chamberlain had
warned him repeatedly, approximately every other day,
to stay away from Jordan, Suarez, Edward Madrigal,
and Mary Gonzalez because they "were strong in the
Union." Furthermore, Martinez testified that on Febru-
ary 15 he had overheard an argument between Jordan
and Chamberlain, after which the latter had walked over
to Martinez and had said, "The fight is on and we're
winning."zl
Edward Madrigal had been employed by Respondent
Employer from October 1974 until October 1980. He
had started as a part-time clerk, had become a full-time
DM in ,October 1978, then had requested and had been
made a part-time DM in December 1979, and later had
asked if he could be restored to full-time status. Accord-
ing to Madrigal, on approximately February 6 he was di-
rected by Salinas to report to Chamberlain's office so
that his request to be restored to full-time status could be
discussed. There, Madrigal testified he was told that he
would be accepted on the 1600 district and, then, Cham-
berlain had inquired about the amount of Madrigal's
union dues and if Madrigal knew for what purposes his
dues were being used. Madrigal testified that when he
had replied that he did not know Chamberlain had asked
if Madrigal objected to or had any comments on that,
adding that Madrigal could avoid further dues payments
20 Chamberlain and Salinas agreed that they had been present dung
this interview, but each of them denied that Chamberlain had said any-
thing more about Respondent Union than that it represented the DMs
and that Martinez was free to join or not as he saw fit.
Martinez was certain that the interview had occurred on February 4,
but be had written the date February 5 on his application. When con-
fronted with it, he speculated -that he might have completed it after the
interview, but also testified that "I think I filled it out the same day first
day that I went there." Chamberlain was certain that he had reviewed
the completed application before having interviewed Martinez and he
agreed that the date that had been written on the application might have
been incorrect Martinez was also uncertain whether he had met Salinas
before being ushered into Chamberlain's office or had encountered him
initially that day in the office.
21 Chamberlain denied that he had ever told Martinez to stay away
from Respondent Union's stewards and members and, further, denied that
he had ever had a conversation with Martinez during whichChamberlain
had said that the fight with Respondent Union was on and that Respond-
ent Employer was winning. Though Jordan was called as a'rebuttal wit-
ness, she did not describe any argument with Chamberlain on February
15.
HEARST CORP. 775
through a contract clause that allowed registered letters
to be sent to Respondent Union and to Respondent Em-
ployer's payroll office between that day and the expira-
tion date of the contract, and asking if Madrigal was
aware of that clause . According to Madrigal , Chamber-
lain had continued by saying that a union was not
needed at that time and that "good management of a dis-
trict will get the work done in 4 or 5 hours , instead of 9
hours, and that I could leave work earlier than 9 p.m. as
reflected in the contract. He explained the things I could
do if I got off at 5 or 6 p.m. rather than 9 p.m."22
District Manager Mary Gonzalez testified that "on or
about" February 6, Chamberlain had called her to his
office and inquired about her plans for the near future.
When, testified Gonzalez, she had replied that she did
not plan to be a DM forever, he had told her that to ad-
vance to the next highest level, that of zone manager,
she would have to get out of Respondent Union and had
explained "the window clause in the contract and the
dates, in order for me to get out of the, out of the
Union." According to Gonzalez , Chamberlain continued
by describing the zone manager 's position , explaining the
added money and experience that would accompany ap-
pointment to that position and saying that he felt that she
had the potential to be a good supervisor . She testified
that he had concluded by telling her that there would be
other advantages for her even if she did not plan to be a
zone manager; that as the person who had been president
of Respondent Union when the then-existing contract
had been negotiated he felt that the employees no longer
needed Respondent Union as Respondent Employer had
won; and, that Gonzalez would have to send her letters
by registered mail to get out of Respondent Union.23
Lucero and Estrada each described comments made to
the latter by Chamberlain on February 21, while on the
loading dock . Estrada testified that Chamberlain had
asked if she had thought about getting out of Respondent
22 While both Salinas and Chamberlain agreed that this meeting had
occurred , both of them denied that the subject of Respondent Union had
arisen and each of them denied specifically that Chamberlain had made
the remarks about it attributed to him by Madrigal . Further, both Cham-
berlain and Madrigal agreed that, given the nature of DMs' duties, it
would not be possible for them to complete their work by 6 p.m.
23 Chamberlain denied ever having participated in a conversation with
Gonzalez concerning the possibility of her becoming a zone manager. In-
stead , he, as well as Cavillo and Jehl , testified that she had not been con-
sidered qualified for promotion to that position and, further, testified that
zone manager positions were filled only after vacancies had been posted.
However , Chamberlain did not deny specifically having made the re-
marks to Gonzalez concerning Respondent Union , which she attributed
to him during this conversation.
Although she denied having memorized or practiced her testimony re-
garding this conversation, it did appear , by comparing her twice-recited
account of what Chamberlain had told her , as well as from the account
of that conversation written in her pretrial affidavit , that she had done so.
Moreover, she admitted having seen those portions of the complaint per-
taining to matters about which she would be testifying and that she had
memorized the dates of those events, which appears to account for her
use of the phrase "on or about" in specifying the date of her conversation
with Chamberlain . While she is still employed by Respondent Employer,
Mary Gonzalez conceded that she felt that a suspension that she had re-
ceived in July had been "unfair ." At the time of the hearing , she was
pressing a workmen's compensation claim against Respondent Employer.
She has been a friend of Respondent Union 's officers Jordan , Suarez, and
Good, and it had been Jordan who had suggested that Mary Gonzalez go
to the Board's resident office about "some complaints" that Gonzalez had
brought to Jordan 's attention.
Union and , when she had responded affirmatively, if she
intended to do so, to which she had replied that she
thought she would do so. According to Estrada, he had
told her the dates during which she had to do so, had
said that she had to send a letter to Respondent Union
and another to Respondent Employer's "payroom" by
registered mail, and had offered to help her write the let-
ters if she had problems . Estrada testified that Chamber-
lain then asked if she had spoken to Mary Gonzalez
about getting out of Respondent Union and , when Es-
trada had replied that she had not done so, had said
"Well, why don't you go knock some sense into her?"
Lucero testified that he had overheard Chamberlain ask
Estrada if she had sent in her resignation from Respond-'
ent Union, tell her the dates within which she must do
so, offer to help her write the letters , ask if she had
talked to Gonzalez about resigning and tell Estrada to
knock some sense into Gonzalez so that she would
resign . 24 Following the loading dock conversation , testi-
fied Estrada, Chamberlain had inquired repeatedly if she
had sent the resignation letters and, on February 27,
when she told him that she had prepared the letters, he
asked her if she had made sure that they were sent by
registered mail, to which she had replied she had done
so.25
As recited in section III, A, supra, Raymond Martinez
began circulating the petition opposing Respondent
Union's continued representation of the DMs in early
March . Thomas Martinez testified that on approximately
March 7 he was summoned to Chamberlain's office
where Chamberlain had pointed out that Respondent
Employer was in a "fight" with Respondent Union, and
that signatures on the petition were "like votes." Ac-
cording to Thomas Martinez, Chamberlain "asked me to
circulate the petition, you know, `cause I was, I was talk-
ing to everybody and everybody was kind of more or
less listen[ing] to me, and he figured I could , you know,
influence them into signing it ." Thomas Martinez testi-
fied that Chamberlain had shown him a petition, which
Thomas Martinez identified as having been the one that
Raymond Martinez had prepared, had asked him to pass
it around and get seven signatures, and had said that the
petition then would be passed on to someone else to cir-
culate . According to Thomas Martinez, when he said
that he did not like doing as Chamberlain was request-
ing, the latter said , "Okay, you know, we'll get some-
body else to do it."26
Mary Gonzalez testified that on March 17 she had en-
countered Chamberlain on a street corner where he had
told her that a petition was being circulated, that this
was the last day on which she could sign it, and that
24 Chamberlain denied having participated in a conversation on the
loading dock with Estrada during which Respondent Union had been dis-
cussed and, further, denied having made the remarks that she and Lucero
attributed to him.
25 Chamberlain denied that he had ever questioned Estrada about re-
signing from Respondent Union . As set forth in sec . III,A, supra, Estrada
sent her resignation letters on February 27. Moreover , they had been sent
by registered mail.
26 Chamberlain denied that he had ever spoken with Thomas Martinez
regarding the petitions that had been circulated and he denied that he
had ever asked Thomas Martinez to circulate a petition among the DMs.
776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Raymond Martinez was one of the circulators. As Marti-
nez was out of town that day, Gonzalez testified she
asked who else had the petition and Chamberlain had re-
plied that he did not know, but that only a few members
of Respondent Union were left and that she would be
surprised to see the names on the petition as some of the
old timers had already signed it.27
Finally, during cross-examination , Lucero agreed that
the following statement in his pretrial affidavit was true:
"On March 19th, Chamberlain called me into his office,
and he asked me if I had signed a petition to get rid of
the Union, and I told him Yes."
C. The Remarks Attributed to Engle
Only Estrada and Cooper testified that Engle had
made unlawful statements to them. Cooper testified that
she had participated in a meeting with Engle, which she
placed as having occurred on approximately September
19, 1979.28 Prior to this meeting, Cooper had encoun-
tered difficulty with two zone managers during the time
that she had been supervised successively by each of
them. When she walked off the job after a dispute with
Zone Manager Cantu and then said that she did not feel
that she could work with the computers as DMs were
obliged to do, Chamberlain had wanted to terminate her
and had so recommended to Engle. The latter, however,
had been concerned about the paucity of DMs on the
payroll at that time. Ascertaining that Cooper had been
effective in that portion of the DM's job involving re-
cruitment and training of carriers and confronted with
the fact that, other DMs were experiencing difficulties in
that area, Engle decided to reassign her to training other
DMs in that facet of their duties, under the direct super-
vision of Chamberlain. It had been this decision that had
given rise to the meeting.
Cooper testified that when she arrived in the office
where both Chamberlain and Engle were present, Engle
had said that he felt that a separateness existed between
the circulation department and the rest of Respondent
Employer, that Respondent Employer was not a united
organization, and that he wanted a company where ev-
eryone from the publisher down to the carriers felt that
they were part of the company. According to Cooper,
Engle then asked if she would work on a special assign-
ment teaching DMs to recruit and to train carriers and,
when she had accepted, had continued on to say that if
she could perform well in that assignment a better one
would be in store for her at the beginning of the year.
Cooper testified that Engle next had inquired "why a
strong person like myself belong to [Respondent
27 Chamberlain denied that he had ever discussed the petition with
Gonzalez, that he had discussed Raymond Martinez with her, that he had
ever informed her that this was the last day on which she could sign a
petition to dissolve Respondent Union, and that he had ever told her that
there were very few members left in Respondent Union.
28 Cooper conceded that this meeting may have occurred prior to Sep-
tember 19 and Engle testified that it had occurred during the first week
of September 1979. Inasmuch as the charge in Case 23 -CA-7871 had
been filed on March 19, there had been no showing that this meeting oc-
curred within the 6-month period prior to the filing of that charge How-
ever, the comments assertedly made during this meeting can be consid-
ered in assessing the events that occurred thereafter within the 6-month
period preceding the filing of the charge.
Union]," and, after she had explained that she had joined
because the stewards had advised and aided her when
she had encountered a major problem with her supervi-
sor, had asked why she had not brought her problem to
the attention of former Circulation Director Carlock.
When, testified Cooper, she had explained that she had
been following the chain, of command, Engle had said
"that the only 'time the Union was needed was when
there was poor management , and that in the past there
had been poor management," and that "under his new
program, that the Company would include everyone,
right down to the carriers, there would be no separation
whatsoever, everyone would work united for the same
goal." According to Cooper, Engle concluded the meet-
ing by saying that "a union was not needed when there
was good management."29
Estrada testified that during a casual conversation in
Engle's office on January 23 he had questioned her about
whether Respondent Union's dues were expensive,
whether she had thought about using the dues money for
other purposes, whether she had spoken to Mary Gonza-
lez about the matter, and whether Gonzalez had said
what she thought about Respondent Union. According
to Estrada, Engle had asked her to talk to Gonzalez and
to ascertain how Gonzalez felt about Respondent Union
and about getting out of it. 30 Estrada further testified
that on February 13 she had asked Engle to allow
Lucero and her to have a day off on February 29 to
attend a wedding in El Paso, but that he had told her
that she would have to make her drops and could only
have a half day off. According to Estrada, Engle had
added that without Respondent Union she could have
29 Both Engle and Chamberlain agreed that a meeting had taken place
and that, during it, Cooper was offered and accepted the job of teaching
DMs to recruit and tram carriers. In fact, Engle testified that there had
been two meetings, one when he offered her the position and another
when she returned with "a basic concept" of the proposed assignment.
Chamberlain, however, described only a single meeting. Further, Engle
testified that during a meeting with Cooper he told her that " I had a cap-
ital budget approved for six new vehicles ... [and] I would try to ar-
range to put her in a new vehicle ...... However, both he and Cham-
berlain denied that the subject of Respondent Union had arisen and
denied specifically that Engle had asked why Cooper had joined Re-
spondent Union or had said that Respondent Union was no longer neces-
sary in the circulation department. Neither of them, however, denied that
Engle had made remarks about the separation of the circulation depart-
ment from the rest of Respondent Employer and about his desire to have
a united company. Nor was it denied specifically that Engle had said that
unions were only needed when there was poor management
As had been true of her description of events assertedly occurring after
her conversation with Chamberlain in December 1979, Cooper claimed
that following this conversation with Engle she had talked with other
DMs about the lack of a need for continued representation by Respond-
ent Union. However, no other DM corroborated Cooper's assertion con-
cerning these purported comments to them.
30 Engle denied having ever made such comments to Estrada He testi-
fied that the only occasion when he had ever discussed Mary Gonzalez
with Estrada had been when Estrada had reported that Ray Martinez had
been "hassling" Gonzalez He claimed that he later asked Gonzalez if she
was "having any problems with all this turmoil that's going on? Is any-
body picking on you or anything else?" While Estrada did not dispute
having made the remark about Mary Gonzalez to Engle, which he attrib-
uted to her, neither did Mary Gonzalez corroborate Eagle's account of
the questions that assertedly he had put to her regarding harassment
Estrada also' testified that she had had many "[s]mall conversations"
with Engle during which ' he had made remarks concerning Respondent
Union to her.
HEARST CORP.
had the whole day off and that "there was really no
need for it because he was there ." 91 Finally , Estrada tes-
tified that , during another conversation on March 18
Engle had questioned her about whether she was aware
of the petition being circulated by Raymond Martinez,
whether she intended to sign it, and whether she had
spoken to Mary Gonzalez about the petition . Estrada tes-
tified that she had signed the petition later that same
day.32
D. The Remarks Attributed to Salinas and Jehi
By Friday , February 1, Salinas had been notified that
he would be promoted from DM to zone manager.
Thomas Martinez , who had once been a newspaper car-
rier for Salinas , testified that on Sunday , February 3, Sa-
linas had come to Martinez' house, had said that he
needed a DM for his zone , had described the job, and
had said that if Martinez did apply he should "let them
know that I wasn't in favor of a Union, that would help
to get me hired."33 According to Thomas Martinez,
once he had commenced working for Respondent Em-
ployer, Salinas, as had Chamberlain, had admonished him
daily, until near the end of February, to stay away from
Respondent Union's supporters, particularly Jordan,
Suarez, Madrigal , and Mary Gonzalez.34 Thomas Marti-
nez further testified that on the day after he had been re-
quested to circulate the petition by Chamberlain, Salinas
renewed that request. According to Martinez, when he
declined to do so Salinas had said "Look, you don't have
Si Both Engle and Chamberlain testified that it had been to the latter
to whom Estrada had addressed her request for time off that day and that
while he had cleared the decision with Engle , it had been Chamberlain
who had reported the decision to her. Engle denied having discussed the
subject with Estrada and denied having ever told her that Respondent
Union was not needed . He did testifiy that he had spoken to both Lucero
and Estrada about the wedding following their return . Yet, while Cham-
berlain denied specifically that he had told Estrada that the two DMa
could have been given the entire day off without Respondent Union,
Engle did not deny specifically having made that remark to Estrada, as
she testified that he had done.
88 Engle denied having made these remarks to Estrada.
as Salinas denied ever having discussed Respondent Union with
Thomas Martinez and having ever told him that the way to get hired was
to let it be known that he was not in favor of it. Indeed , Salinas denied
that, save for casual remarks similar to those made to other former cam-
era whom he had encountered while making drops as a DM , he had ever
participated in any conversation with Thomas Martinez prior to February
4 or 5 regarding the possibility of the latter becoming a DM with Re-
spondent Employer . Yet, Chamberlain testified that "Ernie Salinas had
said that he had someone who was interested in a district manager's posi-
tion. And he had said this for several months prior to Mr . Martinez ever
coming in."
Thomas Martinez' sister , Veronica-who testified that Salinas had been
at the Martinez home on the Sunday before her brother had started
working at Respondent Employer-acknowledged that on Monday, No-
vember 17, her brother had told her that he needed a "witness that
Ernest was at the house that Sunday morning " and "someone would be
contacting" her about testifying . Yet, Thomas Martinez testified that he
had not said anything to her , "at first," about the substance of his own
testimony or about what she would be called on to testify until after
counsel for the General Counsel had spoken to her and, further, that he
had not told her that counsel for the General Counsel would be calling
her-that "[i]t was a surprise to her."
84 Salinas denied ever having told Thomas Martinez to stay away from
Respondent Union 's supporters.
777
to show them what it's for . . . just cover the top part
and let them sign it like that, you know."35
Thomas Martinez was not the only DM to attribute
unlawful remarks to Salinas. Madrigal testified that he
and Salinas had been making drops together on February
13 when Salinas inquired if Madrigal had sent a letter of
resignation to Respondent Union and to Respondent Em-
ployer's payroll department . When , testified Madrigal, he
replied that he had not done so yet, Salinas said that he
and Chamberlain were considering transferring Madrigal
from 1600 district , to which Madrigal was then assigned
to 2100 district, a less desirable one, but that if Madrigal
would send the resignation letters, Salinas would report
that to Chamberlain , and Madrigal could remain on 1600
district.36
Former District Manager Roger Alvarez had been
hired in early 1979 as a part-time district manager and, as
the year progressed, had been elevated to full-time status.
However, he had been unable to handle the work and
had been told that he would be fired eventually if he
kept working full time . So, at Alvarez ' request, he was
changed to part-time status again , although it is undis-
puted that he had been told by Zone Manager Cantu at
that time that after gaining more experience he could
again be elevated to full-time status if an opening arose
later.
In fact, an opening did arise on 2100 district when, ac-
cording to Salinas, the DM assigned to that district had
been asked to leave. Thereafter, Alvarez had helped Sali-
nas run the district. Salinas testified that during that time
he had asked if Alvarez would like to resume full-time
status and run that district. Alvarez testified that when
he expressed interest in the offer , Salinas asked whether
Alvarez had sent in his resignation from Respondent
Union. According to Alvarez, when he had replied that
he did not want to resign , Salinas had first asked again if
Alvarez wanted the district and, when Alvarez respond-
ed affirmatively, had said "that he needed some .. .
good argument to make to Mr. Ogden Chamberlain, and
that . . . it would be better if I wasn 't in the Union."37
ss Salinas denied asking or telling Thomas Martinez to circulate a peti-
tion or suggesting that Martinez cover up the top of it to get people to
sign it . In describing the request , Martinez testified that Salinas "knew I
had the , I make friends with everybody down there pretty good ... and
he knew that maybe I could influence a few people into signing it and he
asked me to " Yet, there was no showing that Thomas Martinez, who
had been hired by Respondent Employer slightly more than a month
before this purported conversation had occurred, had become friendly
with most or even with a significant number of the DMs. Further, while
other DMs testified that Respondent Employer's officials had requested
and encouraged them to sign the petitions being circulated , only Thomas
Martinez testified to having been asked to actually circulate one of the
petitions.
96 Salinas denied that such a conversation with Madrigal had occurred
and denied having made the remarks attributed to him by Madrigal. Mad-
rigal testified that "2100 is bigger , it's further to the west side of town, as
compared to 1600 , which is smaller, and it 's closer to the south side of
town." While Salinas testified that both 1600 and 2100 districts had been
essentially the same in February, each having a "small bad area" and
2100 district having approximately 75 less papers than 1600 district, no
records were provided to support his testimony that the two districts
were comparable in size.
ar Salinas conceded that the had offered Alvarez full-time status, when
the two of them had been cleaning up 2100 district . However, he denied
Continued
778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mary Gonzalez was the only employee to attribute an
assertedly unlawful statement to Jehl. Under its collec-
tive-bargaining contract, Respondent Employer is
obliged to make available a bulletin board on which Re-
spondent Union could post notices to employees. It is
undisputed that a bulletin board had existed at the
Broadway facility and had been used for that purpose.
After opening the satellite office in January, Respondent
Employer had erected a bulletin board there on which
promotional material for carriers could be posted. It is
undisputed that Respondent Employer did not use the
satellite bulletin board to post its own communications to
employees. However, Respondent Union's materials soon
began to appear on that bulletin board and, when Jehl
reported that fact to Chamberlain, the latter authorized
Jehl to remove it on the ground that Respondent Em-
ployer provided a bulletin board for such postings at the
main facility, all DMs reported to the main facility
during the course of the day and the satellite bulletin
board was not intended for the purpose of communicat-
ing with employees. Jehl did so "on or about" March 4
in Mary Gonzalez' presence.88 She testified that as he
took down Respondent Union's literature, Jehl had "said
it wasn't necessary anymore and that it wasn't a require-
ment to have both postings up." Jehl testified that he
would not have made such a statement.
IV. ANALYSIS
A. The Statements Attributed to Respondent Employer
In assessing the allegations against Respondent Em-
ployer, the threshhold question is whether its officials
made the remarks attributed to them by the witnesses
called by the General Counsel. In this regard, I credit
Thomas Martinez and Sharon Cooper only to the extent
that their accounts are corroborated by other evidence.
When he testified, Martinez appeared to be attempting to
tailor his testimony so that it would buttress the case
against Respondent Employer, apparently in an effort to
be "helpful to [his] friends." Of all the witnesses who tes-
tified, he was the only one to claim that Respondent Em-
ployer had attempted to persuade him to circulate, as op-
posed to sign, one of the antiunion petitions. There was
no evidence to support his assertion that, during the ap-
proximately 1-month long period that he had been work-
ing for Respondent Employer prior to the purported
March 7 overture by Chamberlain, Martinez had become
so familiar with all other DMs that "everybody was kind
generally that after becoming a zone manager he had ever discussed Re-
spondent Union with Alvarez and claimed that Alvarez had rejected the
offer because he did not want the responsibility of working full time. Yet,
Salinas did not deny specifically asking if Alvarez had resigned from Re-
spondent Union and that he needed a good argument to make to Cham-
berlain to support a recommendation that Alvarez be made a full-tune
DM on 2100 district and that it would be better for Alvarez not to be in
Respondent Union.
Later, Alvarez was transferred to a rural district and quit after an argu-
ment with his zone manager there, who was Salinas' brother . Alvarez
denied that this had angered him, although he acknowledged that "I was
a tittle upset because they asked for my resignation when I was doing my
job."
98 Jehl testified that he had no recollection of whether Gonzalez had
been present when he had removed Respondent Union's literature from
the satellite bulletin board
of more or less listen[ing] to [him] . . . ." Nor was any
evidence produced warranting the conclusion that Re-
spondent Employer would likely have perceived Marti-
nez as having been capable of influencing other DMs.
Moreover, his description of the events surrounding Sali-
nas' February 3 visit to his home given during the Gen-
eral Counsel's case-in-chief, when he claimed that Salinas
had "got[ten] me out of bed," was contradicted by the
description that he advanced during his rebuttal testimo-
ny, when he claimed that Salinas had arrived during a
post-church family breakfast gathering at which he had
been "frying in the kitchen, you know." Indeed, as noted
in footnote 33, supra, his sister contradicted flatly his de-
nials concerning what he had told her about the case
prior to the time that she had been contacted by counsel
for the General Counsel. In short, although it appears, in
light of Veronica Martinez' testimony, that Salinas had
come to the Martinez home on February 3, her brother
was not a credible witness and his account of Salinas'
purported antiunion remarks, which, in contrast to other
aspects of his testimony, lacks support from other evi-
dence, will not support a conclusion that Salinas had
made them that day. While, as found infra, I do not
credit the denials of Respondent Employer's officials re-
garding statements attributed to them by most of the
General Counsel's witnesses, I find that Thomas Marti-
nez' testimony is not a reliable basis for finding that Sali-
nas had made the remarks on February 3 and March 8
and that Chamberlain had made the comments on Febru-
ary 15 and March 7 that Martinez described. However,
his discription of antiunion remarks made to him by
Chamberlain during the job interview and of admoni-
tions to stay away from Respondent Union's supporters
do find support from similar statements made to other
employees.
When she testified, Cooper displayed an obvious hos-
tility toward Respondent Employer and its officials, ap-
parently arising from the inequity that she perceived had
occurred when she had been deprived of the special as-
signment promised to her by Engle and when she had,
accordingly, been reassigned the normal work of a DM.
Not only was her assertion that she had attempted to
persuade other DMs to cease supporting Respondent
Union, after she had spoken to Engle and later to Cham-
berlain, not supported by other DMs, but her assertions
were contradicted by those who were asked if she had
approached them about abandoning support for Re-
spondent Union. As discussed infra, many aspects of her
testimony were confirmed by other testimony and evi-
dence presented in this matter. However, I do not credit
her account that she had been solicited to act as "a tool"
in attempting to persuade other employees to abandon
Respondent Union.
While I credit Mary Gonzalez' testimony that, as he
removed Respondent Union's literature from the satellite
bulletin board, Jehl "said it wasn't necessary anymore
and that it wasn't a requirement to have both postings
up," I do not ford that this remark constituted a violation
of Section 8(a)(1) of the Act. It is undisputed that the
satellite bulletin board had not been used by Respondent
Employer for communications to employees. There is no
HEARST CORP. 779
evidence that Respondent Employer and Respondent
Union had agreed separately that the satellite bulletin
board, as opposed to the one at the Broadway facility,
could be used for communications by Respondent Union
with employees. Nor is there any contention that Re-
spondent Union had a contractual basis for using a
second bulletin board, the one at the satellite facility, to
post its literature. The essentially undenied remark attrib-
uted to Jehl by Mary Gonzalez is as consistent with a
statement that the literature was being removed because
Respondent Union had no right to post it there as with a
statement that, as the General Counsel contends, the lit-
erature was being removed because Respondent Employ-
er "considered [Respondent Union] whipped even before
it had any basis for doing so . . . ." Accordingly, Jehl's
statement was vague. Moreover, there was nothing about
it that made it inherently coercive. Therefore, I find that
his remark did not constitute interference, restraint, or
coercion and was not a violation of Section 8(a)(1) of the
Act.
Conversely, I find that a preponderance of the evi-
dence supports the descriptions of statements made by
Respondent Employer's officials given by Lucero, Es-
trada, Madrigal, Alvarez, and Mary Gonzalez, and that
those statements constituted violations of Section 8(a)(1)
of the Act. When testifying, each of these witnesses ap-
peared to be relating honestly what had occurred during
their conversations with Respondent Employer's offi-
cials. Although their accounts of those conversations
were not always completely free from discrepancies,
there is in them "nothing which would furnish justifica-
tion for" concluding that their accounts were "unworthy
of belief." Sunshine Biscuits v. NLRB, 274 F.2d 738, 741
(7th Cir. 1960). For example, the obvious inaccuracy of
dates provided for certain events, such as Lucero's ac-
count that he had been interrogated whether he had
signed an antiunion petition by Chamberlain on March
19, appears to have been no more "than a 'confusion as
to details."'NLRB v. Longshoremen ILWU Local 10, 283
F.2d 558, 562-563 (9th Cir. 1960).
Similarly, while it was evident that, contrary to her
denials, Mary Gonzalez had made an effort to memorize
the accounts of conversations contained in her affidavit,
that does not mandate the conclusion that her testimony
was unworthy of belief. For, the affidavit contained her
own account of remarks made to her by Respondent
Employer's officials. Thus, this was not a situation in
which she was relying on statements prepared by some-
one other than herself and provided to her. The affidavit
had been given at a time much closer to the events de-
scribed therein than the date upon which she testified.
There is nothing in the record showing that her affidavit
accounts of those remarks had been inaccurate or unreli-
able. Consequently, the fact that she had reviewed her
affidavit, as well as those portions of the complaint that
pertained to her, prior to the hearing is equally consist-
ent with the desire of a witness to refresh her recollec-
tion and to ensure that the accounts that she related,
when testifying, would accurately reflect the remarks
that had been made to her by those officials.
Like Cooper, other witnesses called by the General
Counsel expressed, in essence, indignation at treatment
they and their coworkers had received from Respondent
Employer, both because of the conduct resorted to by it
to enlist their opposition to Respondent Union and be-
cause of subsequent actions taken by it that affected ad-
versely their employment relationship and status. Yet,
none of these other witnesses displayed hostility of the
intensity shown by Cooper and these experiences did not
appear to be affecting their candor.39
In reviewing the remarks attributed to Respondent's
officials by the General Counsel's witnesses, "there were
similarities among a number of comments made to" them
by Chamberlain. L `Eggs Products. Inc., 236 NLRB 354,
386 (1978), enfd. in pertinent part 619 F.2d 1337 (9th Cir.
1980). True, the relationship between Estrada and
Lucero had been such that there is a basis for Respond-
ent Employer's argument that the fact that each de-
scribed similar remarks as having been made by Cham-
berlain would not necessarily indicate that their descrip-
tions had resulted from having separately experienced
such statements by him. Yet, aside from the fact that Es-
trada and Lucero appeared to be testifying candidly,40
other employees as well described identical comments by
Chamberlain . For example , not only these two employ-
ees, but Mary Gonzalez as well, attributed remarks to
Chamberlain concerning his prior status as a union offi-
cer. Moreover, both Gonzalez and Madrigal , in addition
to Estrada and Lucero, testified that Chamberlain had
made statements concerning the lack of need for contin-
ued representation by Respondent Union. Further,
Cooper, as well as Estrada and Lucero, described re-
marks by Chamberlain to the effect that Respondent
Union was no longer needed because Engle was now in
charge . Questioning regarding the DMs' union sympa-
thies was attributed to Chamberlain by Madrigal , as well
99 It is said that upon having fallen from her donkey into a mud
puddle, St. Teresa of Avila looked skyward and protested, "If this is how
You treat your friends, no wonder You have so many enemies !" Yet, her
outrage concerning this incident did not lead her to sacrifice her values
generally. Likewise , here, although the employees called by the General
Counsel may have been displeased , even indignant , at what they per-
ceived as having been unfair and less than honorable acts by Respondent
Employer's officials , they appeared, save for Cooper, not to have let that
perception overcome their own commitment to testifying candidly
40 As set forth in fns . 14 and 15 , supra, during their interviews with
Respondent Employer's counsel the two of them made prior oral state-
ments arguably inconsistent with their descriptions of the remarks of Re-
spondent Employer 's officials given when they testified. Yet, each of
them had refused to sign a statement embodying those oral denials. More-
over, both the Board and the courts have endorsed the proposition that
an employee's untruthful response to questions put by employer agents,
such as counsel , can indicate employee concern that the answers could
"have an adverse effect on [the employee 's] job security." Corrie Corp. v.
NLRB, 375 F.2d 149 , 153 (4th Cir. 1967 ). True, there is no contention,
nor evidence to support a contention, that these interviews by Respond-
ent Employer 's counsel had been conducted in an unlawful fashion or for
an unlawful purpose . Nevertheless, Lucero and Estrada had been subject-
ed to an extensive campaign of unlawful statements by Respondent-Em-
ployee's officials prior to the interviews. Further, by the time of the
interviews Respondent Employer had withdrawn recognition from Re-
spondent Union and, accordingly , Lucero and Estrada could not perceive
that any immediate source of protection existed for them were they to
give answers that Respondent Employer , as opposed to its co-counsel,
would view unfavorably. Against this background , I do not feel that their
denials during their interviews with co-counsel suffice to demonstrate
that Lucero and Estrada testified untruthfully in describing what had
been said to them by Respondent Employer's officials.
780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as by Lucero and by Estrada. In addition to Lucero and
Estrada, Madrigal, Mary Gonzalez, Thomas Martinez,
and Cooper each attributed to Chamberlain remarks con-
cerning how employment conditions could be im-
proved-in most, but not all, instances by providing
company cars to DMs and by employing part-time em-
ployees to make drops-once Respondent Union had
been eliminated as the bargaining representative of the
DMs. Descriptions of and references to the means by
which DMs could resign their union membership and
revoke checkoff authorizations were attributed to Cham-
berlain not only by Estrada and Lucero, but by Madri-
gal, Mary Gonzalez, and Cooper as well. Finally, appeals
to sign the antiunion petitions were attributed to Cham-
berlain not only by Lucero, but by Mary Gonzalez and
Thomas Martinez as well.
Obviously, the sheer number of witnesses testifying to
a particular point is not, of itself, determinative of credi-
bility resolutions that may not be made by "a mere head
count." Abbott Labs v. NLRB, 540 F.2d 662, 667 (4th
Cir. 1976); Accord: NLRB v. Union Carbide Caribe, 423
F.2d 231, 233 (1st Cir. 1970). Nevertheless, the fact that
witnesses other than Estrada and Lucero described re-
marks similar to those that the two former DMs de-
scribed, does tend to show the reliability of the descrip-
tions advanced by Estrada and Lucero. Further, the fact
that so many witnesses testified to similar remarks on
separate occasions by Chamberlain is a probative consid-
eration in assessing the reliability of those descriptions.
A most significant occurrence tending to confirm the
testimonies of Lucero and Estrada, as well as of the
other employees, concerning remarks by Chamberlain
occurred during Respondent's case-in-chief, when it
called as its witnesses DM Gerald Fullbright. When he
testified prior to Fullbright, Chamberlain denied making
the unlawful remarks attributed to him by the General
Counsel's witnesses to any DM. During cross-examina-
tion, Fullbright, a personal friend of Chamberlain, testi-
fied that in February during a conversation at a social
club he had mentioned to Chamberlain that he had
become dissatisfied with Respondent Union. It is undis-
puted that, in response, Chamberlain had volunteered
that there was a contractual "window" period during
which employees could get out of Respondent Union by
writing and sending a letter (Fullbright's recollecting of
the details of what Chamberlain had said concerning the
letter was vague), that "it really wasn't necessary for no
Union [sic]"; "that management was more than doing
their part"; and, that there could be a lot more benefits if
there was no union. In sum, Fullbright's account-which
Chamberlain did not contradict when called as a surre-
buttal witness-refutes Chamberlain's denials that he had
ever made such statements to any DM. As interrogation
regarding this particular conversation progressed, Full-
bri ght appeared to realize that his testimony concerning
these remarks was not helpful to' Chamberlain and ap-
peared to be attempting to evade further direct answers
that might occasion added injury. Nevertheless, the ac-
count that he did provide contains the principal remarks
that the General Counsel's witnesses had described as
having been made to them on various occasions by
Chamberlain; that ,a union was no longer necessary; that
DMs could get out of it during the contractually pre-
scribed withdrawal period; and that Respondent Em-
ployer could improve their benefits once Respondent
Union was eliminated.
Unlawful statements were also attributed to Engle and
Salinas. Though these two officials each denied having
made those remarks, the statements described by the
General Counsel's witnesses were similar to those they
described as having been made by Chamberlain. For ex-
ample, both Estrada and Cooper testified that Engle had
remarked that a union was no longer necessary for the
DMs because Engle was now in charge. In fact, Engle
did not deny having commented that unions were not
needed where there was good management. Moreover,
Cooper and Estrada each attributed questioning to Engle
similar to that attributed to Chamberlain by Lucero, Es-
trada, and Madrigal. As had been the case with Cham-
berlain, Estrada described a promise, in this case the abil-
ity to have a full day off, by Engle that served to illus-
trate Respondent Employer's ability to improve employ-
ment conditions if Respondent Union was eliminated as
the representative of the DMs. As had occurred with
Chamberlain, Estrada described Engle as having ap-
pealed to her to attempt to persuade Mary Gonzalez to
cease supporting Respondent Union. Estrada also de-
scribed Engle as having made an appeal to her to sign
one of the antiunion petitions, similar to the appeals
made by Chamberlain to Lucero, Gonzalez, and Thomas
Martinez. Furthermore, Madrigal and Alvarez each de-
scribed remarks by Salinas, similar to those of Chamber-
lain, concerning the contractual period for revoking
union membership and checkoff authorizations. Each of
them also described Salinas as having made promises of
benefit to him if each would follow the course being ad-
vocated by Respondent Employer.
The similarity of the remarks attributed to Engle and
Salinas to those attributed to Chamberlain tends to sup-
port the testimony that Engle and Salinas had, in fact,
made those remarks. Moreover, it is unlikely that Cham-
berlain would have taken it upon himself, without au-
thorization by higher officials, to undertake a campaign
to undermine Respondent Union's support among the
DMs. Indeed, this fact tends to negate Respondent Em-
ployer's argument that because most of its supervisors
had been former members of and, in many cases, officials
of Respondent Union, it was unlikely that they would
have been, opposed to its continued representation of the
DMs. For, whatever their prior relation to Respondent
Union had been, it had not been one shared by their su-
perior, Engle.
The accuracy of the descriptions of conversations with
Respondent's officials given by witnesses called by, the
General Counsel is reinforced by certain objective con-
siderations that tend to confirm their accounts of remarks
attributed by them to those officials. Lucero, Estrada,
and Mary Gonzalez each testified that Chamberlain had
emphasized, apparently to demonstrate his own objectivi-
ty to them, his -prior participation in Respondent Union.
In fact, Chamberlain had been an active member and of-
ficial of it. Further, DMs were told that Respondent
Union was no longer necessary because, in essence, there
HEARST CORP. 781
had been a change in Respondent Employer's manage-
ment . In fact, Engle had become the new assistant gener-
al manager in July 1979. As his undenied comment to
Cooper illustrated , Engle viewed unions as unnecessary
where there was good management . Further, as dis-
cussed in greater detail, infra, Respondent Employer had
authorized preparation of a plan to allow DMs to use
automobiles and to eliminate the need for DMs to make
drops for one zone, and Jehl had worked on the propos-
al, finally submitting it and certain other documents on
December 19, 1979. Thus, as the General Counsel's wit-
nesses testified had been said to them , such a plan had
been under consideration.41
As Cooper was not a reliable witness in all respects,
there was support from objective considerations for cer-
tain aspects of her description of conversations with
Engle and Chamberlain : Engle admitted that the new
truck that was to be Cooper 's had to be reassigned to
someone else ; Engle admitted that Reynolds and
McLaughlin had been hired , but could not be assigned to
DM work at the rate at which they had been hired be-
cause of their lack of prior newspaper experience; Engle
admitted that Reynolds and McLaughlin had been hired
at $240 per week, as Cooper testified that Chamberlain
had explained to her in December 1979; and, Engle
agreed that he had discussed the source of Cooper's
prior dissatisfaction with her during their conversation in
September 1979. These considerations , taken in conjunc-
tion with the similarity of the remarks that Cooper at-
tributed to Engle and Chamberlain to those attributed to
them by other witnesses, tend to support her account of
those portions of her conversations with those two offi-
cials, which correspond with the comments attributed to
them by other employees.
A most significant occurrence tending to support Lu-
cero's and Estrada 's accounts of what had been said by
Engle and Chamberlain is the fact that in late February
Estrada did approach Mary Gonzalez about abandoning
her support of Respondent Union. Although there was
some discrepancy regarding Gonzalez' precise reaction
to Estrada 's appeal, Gonzalez testified that Estrada had
made it and had said that Chamberlain had instructed Es-
41 Respondent Employer argues that the fact that this proposal had
not been implemented after its submission by Jehl tends to refute the tes-
timony that it had been promised "as a 'reward ' to district managers for
getting rid of Respondent Union . Yet, that conclusion does not follow
necessarily . According to Lucero and Estrada , institution of the program
had been tied to elimination of Respondent Union as the employees' bar-
gaining representative. Obviously, that did not occur until mid-March,
when Respondent Employer withdrew recognition . As the charge alleg-
ing that the withdrawal of recognition was unlawful , had been filed
promptly thereafter, there hardly had been an occasion when Respondent
Employer could have implemented this program with certainty that Re-
spondent Union had been eliminated as the DMs' bargaining representa-
tive. Moreover, even if such an opportunity had arisen, Respondent Em-
ployer's failure to actually implement the plan would not require the con-
clusion the promises to do so had not been made . It is not uncommon for
employers to make promises that they do not or cannot fulfill in an effort
to undermine representation by their employees . That Respondent Em-
ployer was so disposed , at least in some areas, is shown by Chamberlain's
promise to Madrigal that without Respondent Union , DMs could quit
work by 6 p.m., an impossibility , given the nature of DM work, and by
his effort to sway Mary Gonzalez' sympathies by holding out the pros-
pect of becoming a zone manager when , in fact, Respondent Employer
did not consider her qualified for promotion to that position.
trada to knock some sense into Gonzalez-a statement
that both Lucero and Estrada described Chamberlain as
having made when he had appealed to Estrada to talk to
Gonzalez . Respondent Employer argues that it would
have been illogical to have asked Estrada to appeal to
Gonzalez because the latter was a strong adherent of Re-
spondent Union. Yet, Gonzalez described appeals to
abandon support of Respondent Union that had been
made directly to her by Chamberlain. She and Estrada
had been "very close at the time." Accordingly, what-
ever Respondent Employer 's reasons for attempting to
dissuade Gonzalez from continuing to support Respond-
ent Union , it would not have been illogical for Engle
and Chamberlain to have attempted to use Estrada as a
conduit for reinforcing Respondent Employer's direct
appeals to her to cease supporting Respondent Union.
Respondent Employer points to its previous amicable
history of labor relations and to the further fact that it
had continued recognizing Respondent Union as the rep-
resentative of employees in the other bargaining unit as a
basis for attacking the credibility of the General Coun-
sel's witnesses . Yet, on more than one occasion, Cham-
berlain had referred to the change in management-
which, so far as the record discloses, meant only
Engle-as the basis for obviating the DMs' need for con-
tinued representation . Engle had told Cooper, during
their September 1979 conversation , that he sought a
united company and that unions were unnecessary where
there was good management . That he viewed that de-
scription , a good manager, as being applicable to himself
was shown when he had told Estrada that there was no
need for Respondent Union as he was there . In sum,
Engle had not been a part of Respondent's amicable his-
tory of labor relations and there is evidence that he be-
lieved continuation of that history to be unnecessary in
view of his own addition to Respondent Employer's
management.
Neither is it inconsistent that Respondent Employer
sought only to eliminate the DMs' bargaining representa-
tive while continuing to maintain amicable relations with
the bargaining representatives of employees in other
units, including Respondent Union in the editorial, busi-
ness office, maintenance , and truckdriver one. To have
withdrawn recognition from every one of these repre-
sentatives , or even from representatives of more than one
bargaining unit , would have made manifest Respondent
Employer's unlawful objective. That this would have
been obvious to Respondent Employer is shown by the
sophistication of its officials in this area and by Respond-
ent Employer's extensive history of labor relations. In
these circumstances, it hardly would have been illogical
for Respondent Employer to pursue continued good rela-
tions, at least for the present , with the bargaining repre-
sentatives of employees in other units while attempting
to eliminate the historical representative for but a single
unit . Just as an employer's unlawful motive is "not dis-
proved by an employer's proof that it did not weed out
all union adherents ," Nachman Corp. v. NLRB, 337 F.2d
421, 424 (7th Cir. 1964), so too is it not disproved by
782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
proof that it did not withdraw recognition from every
representative of its employees.42
Similarly, the fact that Respondent Employer did not
make unlawful statements to all DMs, or even to a ma-
jority of them, does not disprove that it made such state-
ments to some of them. The fact that no DMs other than
Fullbright and the ones called by the General Counsel
"testified [to] similar conversation[s], in no way tends to
suggest that . . . particular conversation[s] did not take
place." Universal Security Instruments v. NLRB, 649 F.2d
247 (4th Cir. 1981). The fact that Respondent Employ-
er's motives for selecting the particular employees that it
chose are not discernible and that further fact that on oc-
casions it made statements and took steps to make it
appear that it was not encouraging employees to with-
draw support from Respondent Union do not disprove
that it made efforts to encourage some employees to
cease supporting Respondent Union. Indeed, the evi-
dence here shows that there had been considerable dis-
satisfaction among the DMs regarding Respondent
Union's performance. That dissatisfaction appears to
have been well known throughout Respondent Employ-
er's facility. Certainly, Respondent Employer became
aware very quickly that an antiunion petition was being
circulated. Accordingly, to achieve possible elimination
of Respondent Union as the bargaining representative of
employees in one unit, Respondent Employer did not
need to conduct a widespread, antiunion campaign in-
volving statements to every employee, or even to a ma-
jority of the employees, in that unit. Instead, it needed
only to cultivate that dissatisfaction by adopting the rifle-
like, rather than shotgun-like, approach of concentrating
its efforts on a few of the employees-sufficient in
number to ensure that employee dissatisfaction would
continue to flourish.
Therefore, I find that Respondent Employer did vio-
late Section 8(a)(1) of the Act by soliciting employee re-
pudiation of Respondent Union through interrogation of
employees concerning their union sympathies and activi-
ties, interrogation of employees concerning the union
sympathies and activities of their coworkers, statements
to employees that representation by their collective-bar-
gaining agent was no longer necessary, statements to em-
ployees that implementation of better benefits was being
prevented by the continued presence of that bargaining
agent„ promises that employees would enjoy increased
benefits and better employment conditions if they with-
drew support from their bargaining agent, warnings to
employees to stay away from union supporters, sugges-
42 Like analysis governs the remarks of Respondent Employer's offi-
cials to DMs who had shown that they are abandoning Respondent
Union No valid purpose appears to exist, nor has one been advanced
here, for an employer to question whether employees who have j ust sent
membership resignation letters to their union or who have circulated peti-
tions opposing continued representation by a bargaining agent, in essence,
have appreciated the effect of what they have done and are certain that
they have acted ,m a manner truly reflective of their personal desires
However, such questioning is an effective, albeit self-serving, device for
creating incidents that can be used as ammunition to rebut accusations,
such as those directed at Cotton by Beal in late February or early March
and, of course, such as those embodied in the charge in Case 23-CA-
7871, that Respondent Employer had been attempting to bring about Re-
spondent Union's demise as the DMs' bargaining representative.
tions that employees rescind their union membership,
revoke their checkoff authorizations and sign petitions to
prevent continued representation by their bargaining
agent, instructions to employees concerning how they
could rescind their union membership and revoke their
checkoff authorizations, and solicitations to employees to
persuade their coworkers to cease supporting their bar-
gaining agent.
B. The Effects of the Unfair Labor Practices on the
Petitions Opposing Continued Representation by
Respondent Union
Although the evidence shows that Respondent Em-
ployer directed its unfair labor practices to, at best, 8
(Estrada, Lucero, Mary Gonzalez, Madrigal, Thomas
Martinez, Cooper, Alvarez, and Fullbright) of the 56
DMs in the bargaining unit, the General Counsel and
Respondent Union argue that this conduct, of itself, suf-
fices to taint the petitions circulated by Raymond Marti-
nez, Montano, and Hill, and, accordingly, to preclude
Respondent Employer from asserting a reasonably
grounded doubt of Respondent Union's continued major-
ity status in the DM unit. In so arguing, the General
Counsel relies on the doctrine that when an employer
questions a bargaining representative's continuing majori-
ty status, "the majority issued must not have been raised
... in a context of illegal anti-union activities, or other
conduct . . . aimed at causing disaffection from the
union ...." Celanese Corp., 95 NLRB 664, 673 (1951),
"Since its decision in Celanese the Board has consistently
adhered to this position." Scott Printing Corp., 249 NLRB
946 (1980). Inasmuch as Respondent Employer, as found
above, did commit unfair labor practices, the General
Counsel and Respondent Union argue that the conclu-
sion follows that Respondent Employer violated the Act
by withdrawing recognition from Respondent Union.
Respondent Employer, however, argues that there
must be more than a mere showing that unfair labor
practices have been committed. It argues that, in addi-
tion, it must be shown that the unlawful acts had an
impact on the loss of majority support-that there must
be a nexus shown between the employer's unfair labor
practices and the employees' disaffection from the bar-
gaining representative. For, "there is no absolute pro-
scription against questioning a union's majority status in
the context of unfair labor practices. Rather, any unfair
labor practices committed are weighed to see whether
they, in fact, would preclude an employer from later
withdrawing recognition from the Union." Guerdon In-
dustries, 218 NLRB 658, 661 fn. 26 (1975).
As set forth above, by February considerable employ-
ee dissatisfaction with Respondent Union's performance
had arisen. Specifically, Raymond Martinez testified cre-
dibly that when Respondent Union had failed to respond
to bargaining proposals that he had submitted in the
manner that he deemed appropriate, he had decided to
withdraw from membership. When he later learned, even
before receiving Beal's March 11 letter, that he could not
withdraw from membership automatically and that his
dues would continue to be checked off, he decided to
prepare and circulate a petition opposing continued rep-
HEARST CORP. 783
resentation by Respondent Union . Aside from the testi-
mony of the less than credible Thomas Martinez , there is
no substantial evidence that Respondent Employer had
been involved in the preparation of the petitions nor in
the decisions of Raymond Martinez , Montano , and Hill
to circulate them . However , as found above , Respondent
Employer did commit unfair labor practices prior to and
simultaneously with the circulation of these petitions. I
find that a sufficient nexus exists between these unfair
labor practices and the signing of the petitions to war-
rant the conclusion that Respondent 's unfair labor prac-
tices precluded it from relying on them as the basis for
withdrawing recognition from Respondent Union.43
Respondent Employer 's unfair labor practices were in-
tended to and had the natural consequence of causing
disaffection from Respondent Union . As found above,
they included unlawful statements that Respondent
Union was no longer needed as the bargaining represent-
ative for DMs; that DMs should withdraw from mem-
bership in it and , in some instances, sign one of the peti-
tions being circulated ; and, further, that benefits and em-
ployment conditions would improve once Respondent
Union was removed from the scene.
Although it is true that only 8 of the 56 unit DMs had
been the direct targets of such unlawful remarks, 4 of
them (Lucero, Estrada, Fullbright , and Thomas Marti-
nez) signed one of the three petitions circulated prior to
the withdrawal of recognition. In view of the nature of
the remarks made to them by Respondent Employer's of-
ficials, particularly Chamberlain, it can hardly be found
that they signed these petitions free of the effects of Re-
spondent Employer's improper influence . 44 Accordingly,
elimination of consideration of their signatures means
that only 29 signatures, at best, can be considered to
have been free of the direct effects of Respondent's
unfair labor practices.
It is accurate that none of the eight employees to
whom unlawful statements had been directed claimed ex-
pressly that they had repeated those comments to other
48 So far as the record shows and based on the arguments of the par-
ties, Respondent Employer would not have withdrawn recognition from
Respondent Union absent presentation of the petitions circulated by Ray-
mond Martinez, Montano, and Hill.
44 During the hearing, I ruled that the motivation of employees who
signed the antiunion petitions would be a relevant area of inquiry only if
it were first shown that the signers had been aware of unlawful state-
ments by Respondent Employer's officials. In so doing, I analogized the
situation to one when an employee who signs an authorization card can
be interrogated concerning motivation for doing so only if it is first
shown that he or she was told something that, in effect, canceled the
wording of the card. As this matter is of no ultimate consequence, in
view of the fact that I preclude questioning of most of petition signers
because they claimed that they had been unaware of Respondent Em-
ployer's unlawful statements, I feel obliged to point out that my analogy
was not apposite and that my ruling concerning the limited admissibility
of the subjective motivation of the petition signers was erroneous, al-
though knowledge of Respondent Employer's unfair labor practices re-
mains a viable issue. For, under no circumstances should an employee be
questioned concerning, in effect, whether an employer's unfair labor
practices affected his or her decision to withdraw support from a bar-
gaining representative; rather, the only proper question is whether the
employer's unfair labor practices had a reasonable tendency to intimidate
employees into doing so. See, e.g., NLRB v. Nu-Southern Dyeing & Fin-
ishing, 444 F.2d 11, 15-16 (4th Cir. 1971).
employees.45 Yet, the unlawful statements of Respondent
Employer's officials had a natural tendency to undermine
an established bargaining relationship by destroying DM
support for Respondent Union, thereby providing the
basis for terminating a bargaining relationship of over a
decade's duration . Further, most of the unlawful state-
ments "were reiterated and [many] took place in a con-
text where their effect was enhanced." Irving Air Chute
Co. v. NLRB, 350 F.2d 176, 179 (2d Cir. 1965). Inasmuch
as they were intended to create an issue concerning the
extent of employee support for continued representation
by Respondent Union, it can fairly be inferred , just as in
initial organizing campaigns , that Respondent Employ-
er's unlawful remarks "were likely to be rapidly dissemi-
nated around [the] plant during the struggle of [contin-
ued] organization ." Bausch & Lomb Optical Ca v. NLRB,
217 F.2d 575, 576 (2d Cir. 1954). In short, even without
direct evidence of dissemination , the nature of Respond-
ent Employer's remarks were such that an inference is
warranted that they likely would have been disseminated
to at least some other employees.
Respondent Employer, however, argues, in effect, that
any such inference or presumption founders on the testi-
mony of 17 petition signers48 and 2 nonsigners ,47 each
of whom testified, in essence , that no antiunion state-
ments had been made to him or her by any management
officials and that he or she had not been aware at the
time of signing the petition of any unlawful remarks
made by Respondent Employer's management officials.
Yet, certain infirmities exist regarding this evidence and
with respect to Respondent 's contention . First, there
were 13 other petition signers48 who were not produced
as witnesses by Respondent Employer and , accordingly,
from whom there is no evidence of lack of knowledge of
Respondent Employer's unlawful statements. As Re-
spondent Employer's counsel represented that two of
these individuals were on vacation and the remainder ap-
parently were no longer employed by Respondent Em-
ployer, no contention was made that these 13 persons
were unavailable to Respondent Employer. Nor was any
contention made , by means of requests for subpoena and
continuances, that their attendance at the hearing could
not be secured.
With respect to the unfair labor practices it committed,
Respondent Employer is a wrongdoer who must "bear
the responsibility for the consequences that flow from
[its unlawful] conduct." Super Tire Stores, 236 NLRB
877, 877-878 (1978). Having committed unfair labor
practices of the type described above, it is Respondent
48 Save, of course, for Estrada who attempted to dissuade Mary Gon-
zalez from continuing to support Respondent Union. However, Gonzalez
had been subjected to unlawful statements by Chamberlain and, conse-
quently, Estrada's added comments to her do not advance analysis any
further regarding the number of employees affected by the unfair labor
practices.
48 Nancy Wigley, Walter Powell, Patricia Harrigan, Fullbright, Gene
Ng, Gregoro Garcia, Jesse Barela, Robert Martinez, Max Cremar, James
Neal Hudson, Donaubauer, Belinda Kay Worthy, Carlos Ramirez, Rich-
ard Ramirez, Raymond Martinez, Hill, and Montano.
47 Ann Bukowski and Josephine Wilkerson.
48 Leslie Palmer, Joe Bartlett, Reuben Vallejo, Bryan Wilson, Juan
Lopez, Ray Caracellos, Juan Orozco, Richard Gore, Ed Barranueva,
Julio Gonzalez, Jack Chaney, Charles Leach, and Manuel Gonzales.
784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employer that must bear the burden of "disentangl[ing]
the consequences for which it [is] chargeable from those
from which it [is] immune." NLRB v. Remington Rand,
Inc., 94 F.2d 862, 872 (2d Cir. 1938), cert. denied 304
U.S. 576. Accord: NLRB v. Swinerton & Walberg Co.,
202 F.2d 511, 516 (9th Cir. 1953), cert. denied 346 U.S.
814. As is true in other areas, "the Board can hardly be
said to be effectuating policies beyond the purposes of
the Act by resolving the doubt against the party who
violated the Act." Leeds & Northrup Co. v. NLRB, 391
F.2d 874, 880 (3d. Cir. 1968).
Here, although Respondent Employer made unlawful
statements for the purpose of undermining support for
Respondent Union to only some employees, it is a fair in-
ference or presumption that these remarks had been dis-
seminated among, at least, some other DMs. Although
Respondent Employer produced some of the petition
signers to testify that they had been unaware of Re-
spondent Employer's unlawful remarks, it failed to call
all the employees who had signed the petitions to dis-
avow such knowledge. By failing to call the remaining
petition signers and by failing to explain why it had not
done so, Respondent Employer has failed to satisfy its
burden, as a wrongdoer who violated the Act, of show-
ing that its unfair labor' practices had no impact on all
employees who signed the petitions. Furthermore, its
pattern of calling some, but not others, of the petition
signers gives rise to an inference that the ones whom it
chose not to call would not have testified favorably to
Respondent Employer's interest. Colorflo Decorator Prod-
ucts, 228 NLRB 408, 410 (1977), enfd. mem. 582 F.2d
1289,(9th Cir. 1978); Martin Luther King, Sr., Nursing
Center, 231 NLRB 15 fn. 1 (1977).49
The second infirmity in Respondent Employer's argu-
ment arises from the fact that it had chosen to call only
persons whom it then employed to testify that there had
been no dissemination of the unlawful remarks made to
Estrada, Lucero, Cooper, Mary Gonzalez, Madrigal,
Thomas Martinez, and Alvarez. When these employee
witnesses of Respondent Employer testified, I had some
reservations regarding the reliability of their disavowals
in light of the admonition that "employees are more
likely than not . . . in response to questions by company
counsel, to give testimony damaging to the union ...."
NLRB v, Gissel Packing Co., 395 U.S. 575, 608 (1969).
That these reservations were warranted was illustrated
amply when Respondent Employer called Fullbright.
Like other witnesses called by Respondent Employer, he
denied specifically during direct examination that any
member of Respondent Employer's management had
49 It should be noted that this situation differs from those when a party
falls to call as a witness a person available equally to all parties to the
proceeding See, e g , CTS Keene, Inc, 247 NLRB 1016 (1980) Here, to
prevail, Respondent Employer, as a result of its unfair labor practices,
bears the burden of showing that their effects were confined to but a few
employees Although it could have chosen to pursue other courses to ac-
complish that objective, Respondent Employer chose to call petition
signers other than those called by the General Counsel Having decided
to proceed in this fashion, Respondent Employer is obliged to satisfy the
standard it created-that is, of showing directly that, at least, a majority
of the unit employees who had signed the petitions were each unaware of
its unfair labor practices At best, it has shown only that 17 of them
lacked awareness of the unlawful remarks.
talked to him about resigning from Respondent Union
and, further, he denied that he had been aware of any
statements by Respondent Employer's officials aimed at
convincing DMs to resign from Respondent Union. But,
as set forth in section IV, A, supra, Fullbright then con-
tradicted those denials during cross-examination by ad-
mitting that Chamberlain had volunteered how Full-
bright could resign from Respondent Union, had said
that Respondent Union was no longer needed as the
DM's representative, and had promised that benefits
would be better without it. In short, his testimony on
cross-examination demonstrated the unreliability of at
least some of the denials that he had made during' direct
examination. His testimony illustrates the unreliability of
the denials provided by the employee witnesses called by
Respondent Employer and, further, tends to emphasize
the validity of the inference that the petition signers
whom Respondent Employer failed to call, without ex-
planation, would likely have testified adversely to Re-
spondent Employer's interests had they been called as
witnesses.
Third, Gerard Gavia, employed by Respondent Em-
ployer as a truckdriver during early 1980, was called as a
witness by Respondent Employer. He admitted that
there had been rumors circulating through the "grape-
vine" to the effect that Respondent Employer had been
involved in circulation of the petition and obtaining sig-
natures on it. While Gavia did not describe the details of
those rumors, as found above, Respondent Employer had
encouraged some DMs to sign the petitions. According-
ly, there was a basis for these rumors, which served to
publicize Respondent Employer's involvement in the
campaign to oust Respondent Union as the DMs' bar-
gaining representative.
Fourth, while all the DMs were not told explicitly by
Respondent Employer's officials that elimination of Re-
spondent Union would be the price for providing DMs
with vehicles and for assigning part-time personnel to
make drops, Respondent Employer's officials admitted
that it had been common knowledge among the DMs
that such a proposal was under consideration. In review-
ing the testimony concerning this proposal, it is difficult
to escape the conclusion that it had never been seriously
considered for implementation. Chamberlain admitted
that the use of personnel other than DMs to make drops
had been tried once before and had not proven success-
ful. At no point did he offer a complete explanation con-
cerning how these past problems would not again arise
were this procedure to be resurrected.so
Furthermore, in attempting to explain how consider-
ation of the proposal had originated in 1979, Respondent
Employer's witnesses testified inconsistently. Thus, Jehl
claimed that he and Chamberlain had been discussing the
proposal and that he had been directed by Chamberlain
so Chamberlain testified that he had terminated the program because it
had not been managed properly and because, due to a lack of radio
equipment, Respondent Employer "did not have communications with
the field." Yet, Respondent Employer presented no evidence to show
that since that time it had acquired sufficient equipment to have commu-
nications with the field. Nor did it show in what manner its management
had been improved since that time so that the program could be managed
properly in 1979 and 1980.
HEARST CORP.
"to go ahead and look into it, as far as what the cost
would be to the Company for leased vehicles, for extra
manhours to make the drops, et cetera." Jehl made no
mention of having spoken to Engle regarding prepara-
tion of the proposal . Engle, however, claimed that Jehl
had approached him directly with the proposal and that
"quite frankly, I was up to my neck in crocodiles
anyhow, and I, I put him off by telling [him] to go, put it
into a proposal , get bids on autombiles [sic], and every-
thing else, and submit it ." Thus, Engle characterized the
decision as having been one made casually and without
extensive reflection . Moreover , he made no mention of
having conferred with Chamberlain about the decision to
prepare the proposal . But, Chamberlain testified that the
subject of the proposal had been one raised during nego-
tiations for several years; that once Engle had arrived,
Chamberlain had "lobbied him" for implementation of
such a program; and that "in October [Engle] asked me
to go ahead and work up a proposal , or get one worked
up and looked at it , you know, on a zone," at which
point Chamberlain had directed Jehl to prepare and
submit the proposal.
Additionally , at no point did Respondent Employer
provide a complete explanation why the proposal, once
formulated , had not been implemented . Engle testified
only that it had been "too costly at this time and too dis-
ruptive to our organization ." However, at no point was a
complete explanation advanced, supported by any finan-
cial documentation , to show that the plan would have
been in fact too costly to Respondent Employer. Fur-
ther, at no point did Engle explain exactly in what fash-
ion the plan would have been "too disruptive to our or-
ganization ." As had Engle, Chamberlain also claimed
that the program would have been too costly to imple-
ment . Like Engle, he provided no details to support that
conclusionary assertion . He also testified that "we, of
course, we, had personnel problems which made it un-
feasible to spend the additional money at that time to im-
plement that program ." Yet, at no point did he explain
the nature of these personnel problems.
Given the unsuccessful past experience with that part
of the program pertaining to use of part-time personnel
to make drops and in light of the inconsistent and vague
explanations of the circumstances surrounding the deci-
sion to formulate and then to abandon the proposal in
1979, I find that the evidence does not support Respond-
ent Employer's contention that preparation of the pro-
posal had been the result of a purely business decision,
unrelated to Respondent Union's continued representa-
tion of the DMs and I do not credit the testimony that
the proposal had been formulated for purely business
considerations . Inasmuch as Respondent Employer's
stated motive for the preparation of the proposal is a
false one, it can be inferred fairly that Respondent Em-
ployer's "motive was unlawful ." Golden Day Schools v.
NLRB, 644 F.2d 834 (9th Cir. 1981). As found above,
Respondent Employer had conducted a campaign, in op-
position to Respondent Union, that had included prom-
ises that one of the benefits to be attained by abandon-
ment of representation by Respondent Union was provid-
ing cars to DMs and relieving them of their burden of
having to make drops . In view of these promises and in
785
light of Respondent Employer's failure to provide a
credible reason for deciding to prepare a proposal en-
compassing these matters, I find that the proposal had
been prepared for the object of emphasizing to employ-
ees the benefits that they could achieve in return for
foregoing continued representation by Respondent
Union. Inasmuch as a number of DMs had become
aware that Jehl had been preparing the proposal and in
view of the fact that its purpose had been to demonstrate
the benefits that Respondent Employer could provide to
DMs, if they abandoned Respondent Union's representa-
tion, the effects of Respondent Employer 's efforts to di-
minish support for Respondent Union went well beyond
the, at least, eight DMs to whom its officials had spoken
directly.
In sum , the unfair labor practices committed by Re-
spondent Employer had been aimed at causing dissafec-
tion from Respondent Union. They were of the type that
were likely to have been repeated by DMs subjected to
them, thereby receiving republication to DMs whom Re-
spondent Employer did not approach directly. While
some DMs testified that they had been unaware of those
unlawful statements at the times that they had signed the
antiunion petitions, those who testified were still em-
ployed by Respondent Employer and their disavowals
did not appear reliable , particularly in light of Full-
bright's admissions during cross-examination that Cham-
berlain had made such statements to him, after he had
denied , during direct examination , that any such state-
ments had been made to him . Not one former DM em-
ployed elsewhere than by Respondent Employer was
called to deny having been aware of Respondent Em-
ployer's unlawful remarks . Another of Respondent Em-
ployer's witnesses conceded that there had been rumors
circulating that Respondent Employer had been involved
in obtaining signatures on the petitions to oust Respond-
ent Union as the DMs' representative . As significant
number of DMs had been aware of Respondent Employ-
er's proposal to provide vehicles for DMs and to elimi-
nate the need for them to make drops. That proposal had
been designed as a demonstration of its ability and will-
ingness to provide benefits for them without the need for
representation . In these circumstances , it cannot be said
that Respondent Employer's unfair labor practices did
not affect a substantial number of DMs who had signed
the petition prepared and circulated by Raymond Marti-
nez, Montano , and Hill . Therefore , I find that Respond-
ent Employer was not free to rely on those petitions as a
basis for withdrawing recognition from Respondent
Union and, further, that by doing so Respondent Em-
ployer violated Section 8(a)(5) and (1) of the Act .51 Fur-
61 Although Respondent Employer had been aware of the dissatisfac-
tion with Respondent Union's performance that had existed among a seg-
ment of the DMs, there has been no showing that it would have with-
drawn recognition from Respondent Union absent the petitions. In any
event, such dissatisfaction , as well as employee resignations from union
membership , do not, of themselves, suffice to establish an objective basis
for withdrawing recognition from a collective -bargaining representative.
See, e g ., Rogers Mfg. Ca v. NLRB, 486 F.2d 644, 647 (6th Cir. 1973),
cart denied 416 U.S. 937; Terrell Machine Ca v. NLRB, 427 F.2d 1088,
1090 (4th Cir. 1970), cert. denied 398 U.S. 929.
786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ther, inasmuch as Respondent Employer 's withdrawal of
recognition had been unlawful , its subsequent unilateral
changes, in wages and in the health insurance program
made available to DMs, constituted separate violations of
Section 8(a)(5) and (1) of the Act.
C. The Unfair Labor Practices Attributed to
Respondent Union
The General Counsel charges Respondent Union with
four violations of the Act : refusal to honor the resigna-
tions from membership tendered by seven DMs in late
February and early March; demand that checkoff author-
izations be continued in effect for those same DMs fol-
lowing their resignations from membership 's refusal to
provide information to Respondent Employer regarding
the names and letters of all employees who had resigned
from membership or revoked their checkoff authoriza-
tions; and conditioning contractual insurance coverage
upon membership in Respondent Union.
Respondent Union 's refusal to accept the resignations
from membership was, as set forth in Beal 's letter of
March 11 to the resigning DMs, based on its constitu-
tional requirement that the reasons for resigning be sub-
mitted for consideration by its governing board. As set
forth in section III, A , supra, permission to withdraw or
resign from membership is conditioned on whether that
body is willing to accept those reasons , although an
appeal of its decision is permitted to the membership,
presumably for consideration of the validity of the rea-
sons rejected by the governing board . No objective
standards are set forth for granting approval of resigna-
tions or withdrawal from membership.
Labor organizations ' constitutional provisions that
"[limit] too severely the rights of employees to resign"
are "invalid' as overly restrictive." Sheet Metal Workers
Local 170 (Able Sheet Metal Products), 225 NLRB 1178
fn. 1 (1976). The Board has held that provisions requir-
ing approval of members' reasons for resigning or with-
drawing from membership but failing to specify objec-
tive standards for such approval are overly restrictive.
Hendricks-Miller Typographic Co., '240 NLRB 1082, 1088
(1979); Carpenters San Diego County District Council
(Campbell Industries), 243 NLRB 147(1979). Therefore,
Respondent Union may not impose the requirements of
article X, section 13 , of its constitution as a bar to its
members' resignations and withdrawals from member-
ship . Inasmuch as each of the seven letters sent to Re-
spondent Union was sufficiently clear to constitute an ef-
fective communication of desire ,to terminate membership
in it, as illustrated by Beal 's response of March 11, I find
that Respondent Union violated Section 8 (b)(1)(A) of the
Act by refusing to acknowledge the effectiveness of
those resignations and withdrawals from membership.
Allied Workers Local 80 (Capital Husting Co.), 235 NLRB
1264, 1265 (1978); Machinists Lodge 727 (Lockheed
Corp.), 250 NLRB 303, 307 (1980).
The General Counsel further contends that Respond-
ent Union violated the Act by refusing to accord the let-
ters sent by those seven employees as valid revocations
of their dues-checkoff authorizations and by continuing
to demand that Respondent Employer make the deduc-
tions called for by those authorizations . "It is well settled
that when an employee had validly revoked his check-
off authorization , a union 's causing an employer to con-
tinue deducting dues violates Section 8(b)(2)." Atlanta
Printing Specialties Local 527 (Mead Corp.), 215 NLRB
237, 238 fn. 4 (1974), enfd. 523 F.2d 783 (5th Cir. 1975).
To make a determination whether there has been a valid
revocation of a dues-checkoff authorization , it is neces-
sary to examine the terms of the authorization signed by
the employee who claims that revocation has occurred.
"The dues authorization is a contract between the em-
ployee and the employer . . . reserving to the employee
the power of revocation at specified periods." NLRB v.
Atlanta Printing Specialties Local 527, 523 F.2d 783, 785
(5th Cir. 1975).
To the extent pertinent here , as is set forth in section
III, A, supra, both the collective-bargaining contract and
the checkoff authorization forms signed by the DMs pro-
vide that they could revoke their authorizations by
giving written notice of their revocations to Respondent
Employer and to Respondent Union , by registered mail,
during the 15- to 30-day period prior to the termination
date of the collective -bargaining contract , which was
March 18 . However, only three of the employees sent
their letters by registered mail. Three of them sent their
letters by certified mail and one sent his by regular mail.
Of greater significance , Donaubauer did not send a letter
to Respondent Employer and the letter that he sent to
Respondent Union is postmarked March 4-after expira-
tion of the 15-day period from the terminal date of the
collective-bargaining agreement . Most importantly, none
of the employees who sent their letters notified Respond-
ent Union that they were revoking their dues -checkoff
authorizations . 5 2 Instead, they stated only that they were
resigning from membership in Respondent Union. Yet,
"resignation from the Union does not constitute revoca-
tion of dues-checkoff authorizations . . . ." American
Nurses ' Assn., 250 NLRB 1325 fn. 1 (1980).
In their briefs, both counsel for the General Counsel
and Respondent Employer pointed out that membership
resignation can be a valid revocation of dues-checkoff
authorizations in situations in which the latter is consid-
eration for the former . See, e.g ., Carpenters San Diego
County District Council (Campbell Industries), supra; and
Steelworkers Local 7450 (Asarco, Inc.), 246 NLRB 878
(199). However, the dues-checkoff authorizations signed
by the seven resigning DMs provide for deduction of
"an amount equal to all membership dues lawfully levied
against me by the Guild ...." They do not provide
that payment of dues is in consideration for union mem-
bership. Rather , the language of the authorizations is vir-
tually identical to that which was present in American
Nurses' Assn., supra, ' where the resignations from mem-
bership were held not effective to constitute a revocation
of the checkoff authorizations . As it is accurate that
there was no union-security clause in the collective-bar-
gaining agreement between Respondents , ss "union secu-
sz Indeed , of the letters sent to Respondent Employer, only Manuel
Gonzalez and Raymond Martinez made any mention of revoking their
checkoff authorizations.
5 8 Texas had a right -to-work law
HEARST CORP.
rity and dues checkoff are distinct and separate matters
...." American Nurses ' Assn ., supra. The absence of a
union-security clause would not preclude the levying of
dues under the terms of a checkoff authorization. For,
the fact that an employee may choose not to be a
member would not, of itself, mean that that employee
would be unwilling to pay for the costs of representation
as a member of the bargaining unit . Union membership is
"quite a different matter" from union representation.
Carpenters San Diego County District Council , supra, 243
NLRB 147. In any event, there has been no showing that
Respondent Union violated any law in levying dues
against the seven resigning members . Therefore, inas-
much as the checkoff authorizations did not equate union
membership and checkoff, resignation from membership
did not constitute revocation of the authorizations and,
accordingly , I shall recommend that this allegation of the
complaint be dismissed.
The General Counsel next contends that Respondent
Union violated the Act by failing to provide the names
of other DMs from whom it had received revocation let-
ters and copies of those letters to Respondent Employer,
pursuant to the latter's request . Other than its claim that
it sought to evaluate the validity of such revocations,
Respondent Employer has shown no other purpose for
wanting those names and letters . Neither the General
Counsel nor Respondent Employer asserted that Re-
spondent Employer had received any resignation or rev-
ocation letters from DMs other than the seven above-
named employees . Thus, even had Respondent Union re-
ceived additional letters , similar to those sent by Donau-
bauer, those who sent them only to Respondent Union
would have failed , under the terms of the checkoff au-
thorizations, to comply with the requirement that similar
letters be sent to Respondent Employer . Having failed to
comply with the terms of the contract and the checkoff
authorizations , any such revocations , sent only to Re-
spondent Union, could not have been effective . Accord-
ingly, there was nothing for Respondent Employer to
evaluate . Moreover , if those letters had been no more
than resignations from Respondent Union 's membership,
such information would not have been relevant to any
legitimate purpose of Respondent Employer , inasmuch as
they would not have operated as revocations of checkoff
authorizations and the membership status of employees in
Respondent Union is not a matter of concern to Re-
spondent Employer . Therefore , I shall recommend that
this allegation of the complaint also be dismissed.
The final allegation concerning Respondent Union per-
tains to the October 1979 statement regarding health in-
surance attributed to Suarez by Manuel Gonzalez. Al-
though Gonzalez ' testimony was not a model of clarity
and consistency, he appeared to be testifying as best he
could concerning what he had been told by Suarez and
the circumstances under which he had become a member
of Respondent Union . Although Suarez claimed that he
had never told anyone that union membership was the
price of obtaining Blue Cross/Blue Shield Health Insur-
ance, he had no independent recollection of having
spoken to Manuel Gonzalez about the matter and he did
not deny specifically having said to Gonzalez that he
could get the health insurance by joining Respondent
787
Union. Furthermore, Suarez conceded that Amando
Aceves was also a steward of Respondent Union. Yet,
Respondent Union did not call , nor did it explain its fail-
ure to call , Aceves to deny Hudson 's testimony that
Aceves had said that Hudson would have to join Re-
spondent Union to get Blue Cross/Blue Shield Insur-
ance . 54 In view of the similarity of this remark to the
one attributed to Suarez by Gonzalez, the fact that Gon-
zalez appeared to be a candid and credible witness, and
the absence of any specific denial by Suarez of the state-
ments attributed to him by Gonzalez , I fmd that a pre-
ponderance of the evidence supports the conclusion that
when Gonzalez had asked how he could get health in-
surance in October 1979, Suarez had replied only that he
could do so by joining Respondent Union. Moreover, I
credit Gonzalez' testimony that it had been this state-
ment that had led him to join the Union on October 15,
1979. Accordingly, I fmd that Respondent Union violat-
ed the Act by using a contractual benefit as a device for
persuading an employee whom it represented to become
a union member . See, e .g., Teamsters Local 886 (Unit
Parts Co.), 119 NLRB 222 (1957), enfd. 264 F.2d 21 (10th
Cir. 1959).
CONCLUSIONS OF LAW
1. The Hearst Corporation, San Antonio Light Divi-
sion is an employer within the meaning of Section 2(2) of
the Act, engaged in commerce and in a business affecting
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. San Antonio Newspaper Guild, Local #25 is a labor
organization within the meaning of Section 2(5) of the
Act.
3. By soliciting employees to repudiate continued rep-
resentation by San Antonio Newspaper Guild, Local
#25, by interrogating employees regarding their own
union sympathies and activities and those of their co-
workers, by informing employees that representation by
San Antonio Newspaper Guild, Local #25 was no
longer necessary , by telling employees that implementa-
tion of better benefits was being prevented by the contin-
ued representation of San Antonio Newspaper Guild,
Local #25, by promising increased benefits and better
employment conditions to employees if they would with-
draw support from and forgo continued representation
by San Antonio Newspaper Guild, Local #25, by warn-
ing employees to stay away from supporters and officers
of San Antonio Newspaper Guild, Local #25, by sug-
gesting that employees resign from membership in,
revoke their dues-checkoff authorizations for and sign
petitions opposing continued representation by San Anto-
nio Newspaper Guild, Local #25 , by instructing employ-
ees how to rescind their membership in and to revoke
64 When the purpose for receiving this testimony was questioned by
Respondent Union, counsel for the General Counsel did not disagree
with the assertion that Hudson's testimony was being presented by Re-
spondent Employer solely to corroborate Gonzalez ' account that state-
ments concerning having to join Respondent Union in order to get health
insurance were being made by officials of Respondent Union. Therefore,
Aceves' statement to Hudson cannot constitute an allegation of a separate
violation of the Act.
788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their dues-checkoff authorizations for San Antonio
Newspaper Guild, Local #25, and by urging employees
to persuade their coworkers to withdraw their support of
San Antonio Newspaper Guild, Local #25, The Hearst
Corporation, San Antonio Light Division violated Sec-
tion 8(a)(1) of the Act.
4. A unit appropriate for collective bargaining is:
All employees employed by The Hearst Corpora-
tion, San Antonio Light Division in the circulation
department designated as City Circulation District
Managers, excluding Circulation Director, Assistant
Circulation Director, Circulation Manager, Assist-
ant Circulation Manager , Home Delivery Manager,
and City Zone Managers.
5. At all times material , San Antonio Newspaper
Guild, Local #25 had been the exclusive collective-bar-
gaining representative of the employees in the above-de-
scribed appropriate bargaining unit within the meaning
of Section 9(a) of the Act.
6. By withdrawing recognition from and by failing and
refusing to recognize and bargain with San Antonio
Newspaper Guild, Local #25, as the exclusive represent-
ative of the employees in the above-described appropri-
ate bargaining unit , on and after March 19, 1980, The
Hearst Corporation, San Antonio Light Division violated
Section 8 (a)(5) and (1) of the Act.
7. By unilaterally changing wages , fringe benefits, and
working conditions of employees in the above-described
appropriate bargaining unit, without prior notification to
San Antonio Newspaper Guild, Local #25, The Hearst
Corporation, San Antonio Light Division violated Sec-
tion 8(a)(5) and (1) of the Act.
8. By refusing to acknowledge the effectiveness of res-
ignations and withdrawals from membership of Judy A.
Estrada and Manuel Gonzalez on February 27, 1980; Jo-
sephine Wilkerson and Gerald Fullbright on February
28, 1980; Edward Montano on February 29, 1980; Ray-
mond Martinez on March 1 , 1980 ; and Douglas Donau-
bauer on March 4, 1980, San Antonio Newspaper Guild,
Local #25 violated Section 8(b)(1)(A) of the Act.
9. By telling Manuel Gonzalez that health insurance,
provided to all employees under the terms of a collec-
tive-bargaining agreement , could be obtained by becom-
ing a union member , San Antonio Newspaper Guild,
Local #25 violated Section 8 (b)(2) and (1)(A) of the Act.
10. The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2 (6) and (7) of the
Act.
11. The Hearst Corporation, San Antonio Light Divi-
sion and San Antonio Newspaper Guild , Local #25 did
not violate the Act in any other manner.
THE REMEDY
Having found that The Hearst Corporation, San Anto-
nio Light Division and San Antonio Newspaper Guild,
Local #25 engaged in certain unfair labor practices, I
shall recommend that they be ordered to cease and desist
therefrom and that they take certain affirmative action to
effectuate the policies of the Act.
The Hearst Corporation, San Antonio Light Division
will be required to reinstate , on request, by San Antonio
Newspaper Guild, Local #25, the terms of employment
existing before the unlawful withdrawal of recognition
on March 19, 1980, and to make employees in the appro-
priate bargaining unit , described in Conclusion of Law 4,
above, whole for any losses accruing to them by virtue
of unlawful unilateral changes effected following that
withdrawal of recognition . See, e.g., Republic Engraving
& Designing Co., 236 NLRB 1150, 1157 (1978), and cases
cited therein.
'San Antonio Newspaper Guild, Local #25 will be re-
quired to return to Manuel Gonzalez the dues-checkoff
authorization executed by him on October 15, 1979, and
to refund to him an amount equal to all dues deducted
by The Hearst Corporation, San Antonio Light Division
and' remitted to San Antonio Newspaper Guild, Local
#25 pursuant to that checkoff authorization with interest
to be ' paid on amounts owing . See, e .g., Teamsters Local
886 (Unit Parts Co.), 119 NLRB 222 (1957), enfd. 264
F.2d 21 (10th Cir. 1959), and Florida Steel Corp., 231
NLRB 651 (1977).
[Recommended Order omitted from publication.]