The Daily Advertiser

National Labor Relations Board - Board Decisions

Jun 14, 1967

165 N.L.R.B. 405 (N.L.R.B. 1967)

DAILY ADVERTISER
Independent , Inc., d/b/a The Daily Advertiser
and Lafayette Typographical Union Local
No. 832, International Typographical
Union, AFL-CIO. Cases 15-CA-2606 and
15-RM-187.
June 14,1967
DECISION AND ORDER
BY MEMBERS BROWN, JENKINS, AND ZAGORIA
On January 11, 1967, Trial Examiner John M.
Dyer issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. He
further recommended the dismissal of any alleged
violations not expressly found, and that the
representation petition in Case 15-RM-187 be
dismissed. Thereafter, the Respondent, the General
Counsel, and the Charging Party filed exceptions to
the Decision and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings,' conclusions, and recommendations of the
Trial Examiner."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that the Respondent, Independent,
Inc., d/b/a The Daily Advertiser, Lafayette,
Louisiana, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner's Recommended Order, as herein
modified:
Delete the word "immediately" after the word
"commencing" and before the word "after" in
the third full paragraph of section IV entitled "The
Remedy," and insert therein the words "5 days."
IT IS FURTHER ORDERED that the complaint be,
and it hereby is, dismissed insofar as it alleges
violations other than those found by the Trial
Examiner.
IT IS FURTHER ORDERED that the petition in Case
15-RM-187 be, and it hereby is, dismissed, and that
165 NLRB No. 53
405
all proceedings held in connection therewith be, and
they hereby are, vacated.
' We conclude, in agreement with the Trial Examiner, that
Respondent's unlawful conduct had a substantial impact on the
election and warranted setting the election aside In so doing,
however, we rely on the conduct that occurred subsequent to the
filing of the representation petition Ideal Electric and
Manufacturing Co , 134 NLRB 1275
The Trial Examiner also found that Respondent violated
Section 8(a)(1) of the Act when Foreman Raoul Guidry
interrogated employee Melancon as to the intentions of his fellow
employees about engaging in a strike As such inquiry may have
been motivated by economic considerations involving the
scheduling of work and as additional findings of Section 8(a)(1)
would be cumulative in any event, we find it unnecessary to
consider or pass upon the legality of such interrogation
' In his Decision (Conclusions of Law section), the Trial
Examiner inadvertently gave as the dates of the Respondent's
refusal to bargain as "March 13, 19, 26, 27, and December 2,
1964 " We correct the dates to read "November 13, 19, 26, 27, and
December 2, 1964 "
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOHN M. DYER, Trial Examiner: Lafayette
Typographical Union, Local No. 832, of the International
Typographical Union, AFL-CIO (herein called the Union
or the ITU) filed charges and amended charges against
Independent, Inc., d/b/a The Daily Advertiser (herein
variously called Respondent, the Company, or the
Advertiser), in February, April, and June 1965. The
amended complaint upon which this proceeding was heard
was issued by the Regional Director on June 10, 1966,
alleging various acts of 8(a)(1) interrogation and threats,
and that Respondent violated Section 8(a)(5) by refusing to
recognize and bargain with the Union on and after
November 10, 1964.1 It is further alleged that on and after
December 2, certain employees of Respondent engaged in
a strike which was caused or prolonged by Respondent's
unfair labor practices.
On December 1, Respondent filed an RM petition
docketed as Case 15-RM-187. Following a hearing and
review by the Board an election was held on February 10,
1965, in the unit found appropriate,2 which resulted in the
ballots of 57 of the 63 participating voters (strikers and
replacements) being challenged by either Respondent or
the Union and 6 votes being counted. Both the Union and
Respondent filed objections to the conduct of the election.
After an investigation and a Supplemental Decision by the
Regional Director, the Board granted the Union's request
for review, and on December 14, 1965, directed that the
issues raised by Union's Objections 4 and 7, and the status
of replacements and the validity of the challenges be
resolved in a hearing consolidated with the instant unfair
labor practice case.
Respondent in its answer to the complaint admitted the
requisite commerce facts and denied that it had violated
the Act.
' Unless otherwise stated, all dates herein refer to 1964.
Y The unit approved by the Board as appropriate is
All Composing-Press Department employees, including
news, classified, and advertising proofreaders employed at
Respondent ' s plant in Lafayette, Louisiana , excluding all
other employees, mailroom employees, mail inserters,
maintenance man, truckdrivers, guards and supervisors as
defined in the Act
299-352 0-70-27
406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At the beginning of this hearing, I denied Respondent's
motion based on lathes to dismiss the complaint. The
hearing was held on August 1-3 and 15-17, 1966, in
Lafayette, Louisiana. All parties were afforded full
opportunity to appear, to examine and cross-examine
witnesses, to argue orally, and to submit briefs, which
were received from all parties and have been duly
considered.
On the entire record in this case, including my
evaluation of the reliability of the witnesses based on the
evidence received and my observation of their demeanor, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT AND THE LABOR
ORGANIZATION INVOLVED
Respondent is a corporation in the newspaper industry
owning and operating a newspaper known as The Daily
Advertiser, in Lafayette, Louisiana. In the course of its
Lafayette, Louisiana, operations, Respondent annually
does a gross volume of business in excess of $200,000 and
purchases and receives newsprint valued in excess of
$50,000 which is shipped to it directly from points outside
the State of Louisiana. In publishing The Daily Advertiser,
Respondent subscribes to and uses the Associated Press
News Service, various national syndicated columns and
solicits and publishes advertisements for nationally sold
products in its paper.
Respondent admits the above facts and I find and
conclude that Respondent is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
Respondent admits and I find that Lafayette
Typographical Union, Local No. 832, International
Typographical Union, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Background
The Advertiser was purchased by a subsidiary of the
Thompson newspaper chain in 1962, and Richard D'Aquin
was installed as the general manager and editor of the
paper. The Advertiser has not recognized or bargained
with any unions for its employees. Some papers in the
Thompson chain have contracts with other locals of the
ITU.
It is undisputed that certain of Respondent's employees
sought contact with the Union around September 14, 1964.
On September 28, Joseph Saltarrelli, an ITU
representative, held a meeting in Lafayette of interested
Advertiser employees from what is variously called the
mechanical department, composing-press department, or
backshop. Of the 34 employees in the Board-determined
unit, who were employed during the period of November 9
through December 1, 16 attended the first meeting and
signed union authorization cards. Seven of this sixteen
simultaneously signed applications for membership in the
Union and paid the appropriate fees. The membership
applications were completed by Saltarrelli, who postdated
most of the application cards to reduce the amount of dues
the applicants would pay. The applicants also signed a
petition for the granting of a charter to establish a local
union. Saltarrelli remained in Lafayette through
October 2, by which time he had received 18 signed
authorization cards, 15 signed and paid up membership
applications, and 15 petition signatures for the chartering
of a local union.
On October 13, Saltarrelli returned to Lafayette and
held a meeting at which the principal local union officers
were elected and three more employees signed
authorizations for the Union. Two additional employees
signed authorizations and applications for membership on
October 15. By that time others had signed membership
applications and the charter petition so that as of
October 15, there was a total of 22 who had signed union
authorization cards and membership application blanks,
and 20 signatures were on the petition for a charter.-'
There is no dispute as to the union membership or
authorization cards or to the fact of union majority in the
appropriate unit. Respondent's contentions regarding the
unit, which will be discussed later, are that the unit is not
appropriate, that the Union does not have a majority in
Respondent's desired unit, and that it feels the majority
may be a union-coerced majority.
On October 15, Saltarrelli sent the charter petition to
the International Union, and Lafayette Local 832 was
chartered on October 20, 1966.
The basic issue in this case is whether Respondent in
good faith refused to bargain with the Union. Pertinent to
this issue are questions as to whether Respondent by
threats and promises violated Section 8(a)(1) of the Act
and whether the election in Case 15-RM-187 could have
fairly been held in the circumstances.
B. 8(a)(1) Violations
In my evaluation of this case I have considered the
overall demeanor of the witnesses, the manner in which
they testified, the fact that the witnesses were sequestered
and that some of the witnesses were permitted to remain
in the hearing room to assist counsel, the sequence of
events, contradicted and uncontradicted facts, and the
positions taken by the parties and by the witnesses. All
these factors have led me to several conclusions
concerning credibility, which with some uncontroverted
facts give me my view of this case.
In general, my impression of Richard D'Aquin was that
he testified mainly to conclusions and did not try to search
his memory to provide all the facts and circumstances. He
appeared to give a short-sided view of events, trying to
make verbal distinctions and rephrase conversations to
bring them within the "free-speech area" after listening to
the testimony of General Counsel's witnesses. It seemed
evident to me that he was playing a game of "labor
relations brinksmanship." Thus he testified that during
the approximate 4-week interval from the time he heard
rumors of the Union until he received the Union's request
for recognition and bargaining, he did not use the word
"union" since it was "taboo." D'Aquin's other actions,
which will be more fully described below, such as the
second letter to the Union of November 19, the "doubts"
concerning the majority and the unit , the November 20
and 30 speeches, the personal interviews of unit
employees for a personnel questionnaire, substantiate my
conclusion.
Of General Counsel's witnesses, Dore, Benoit,
S Two applicants were classified as apprentices and not
permitted to sign the charter petition
DAILY ADVERTISER 407
Melancon, Robin, Hebert, and Winston impressed me
most as being conscientious in attempting to recall the
events they witnessed. Lancon tried to give this same
impression, but his testimony was marred somewhat, as
was D'Aquin's, by attempts to embellish his testimony and
put it in the most favorable light. Saltarrelli's testimony
was not as garnished as Lancon's, but he sought to put
things in what he considered the best perspective.
The chronology which follows represents my efforts to
reconstruct the events as and in the way they happened,
making allowances for the descriptions of the witnesses
and my resolutions of credibility.
1. On October 16, D'Aquin having heard rumors of
union activity in the backshop, called Alvin Dore and
Leroy Benoit to his office around 6:45 a.m. After telling
them about proposed changes and alterations in the
composing room, he said they were going to get a new
hospitalization and retirement plan and a raise about the
first of the year. He asked whether there was talk about a
union in the backshop. Dore replied that there had been
some union talk but that it was quiet now. D'Aquin asked
if they had any grievances Benoit said they had too much
work to do. D'Aquin said he would hire tape punchers to
give them a hand, that his door was open for any problems
they had. D'Aquin continued that if they cooperated with
him they would all be making more money and would have
a job with him as long as he was there. He said that the
Thompson chain had some unions but that he did not want
it at the Advertiser and asked them to let him know if they
heard any union talk in the backshop. Benoit said he
would not tattle on his fellow employees. D'Aquin asked if
he could depend on them to punch tape. Benoit answered
that the Union had tried to get in twice before and had not
made it. D'Aquin said that he could always get boys from
other towns to come and put out the paper, that anybody
could come and work at the Advertiser.
I conclude and find that Respondent by D'Aquin,
violated Section 8(a)(1) by interrogating Dore and Benoit
about their union feelings, activities, and desires, asking
them to report to him on union activities of other
employees, and encouraging them to refrain from union
activities by holding out the prospect of wage increases
and new fringe benefits. I do not credit D'Aquin's
testimony that he only asked about union talk in the
backshop and let the subject drop.
2. Joe Melancon heard from other employees that
D'Aquin was asking questions about the Union. When he
was called into the office on October 16, D'Aquin asked
what he knew of union talk in the shop. Melancon replied
he knew nothing about it. D'Aquin asked what his opinion
would be if a union organized in the shop and Melancon
said he would wait and see what the majority wanted.
D'Aquin said it would make no difference whether he
joined the Union or not, the Advertiser would not go union,
that it had run for years without a union and no union man
was going to tell him how to operate. D'Aquin told
Melancon that he was averaging about $500 a month.
Melancon answered that he was making only about $5,200
per year. Apparently D'Aquin showed Melancon the
figures and Melancon responded that he had to put in
many hours of overtime to reach $500 per month. D'Aquin
said if he was working too much overtime, he could cut
him back to 40 hours per week. Melancon said he could
not make a living at his rate working 40 hours a week.
D'Aquin said that the Advertiser had printed daily for a
number of years and it would continue whether there was
a union or not. He said he could get on the phone and get
men from other towns who would finish the paper the
same afternoon; that these were good jobs the men had.
He concluded that a union card was no good to one
walking the street, because the Company would not go
union.
About a week later D'Aquin asked Melancon if he had
thought about their conversation. Melancon replied he
had. D'Aquin asked how he felt about it. Melancon said he
would work.
D'Aquin testified he did not recall having a conversation
on October 16, with anyone other than Dore and Benoit. In
later cross-examination D'Aquin said around
November 16, he had a conversation with Melancon in
which he mentioned he heard the Union was trying to
organize the plant. Since this would have occurred after
the first exchange of letters, D'Aquin would have been
more positive than saying he heard the Union was trying to
organize I conclude that D'Aquin is mistaken as to the
date of the conversation and as to its extent.
I conclude and find that the first conversation occurred
on October 16, and that in violation of Section 8(a)(1),
Respondent by D'Aquin in this conversation interrogated
Melancon as to his union activities, feelings, desires, and
knowledge of union activities in the shop and threatened
that Respondent would not have a union and Melancon's
engaging in union activities would prove a futile gesture
which would result in the loss of his job.
The second conversation was a further interrogation of
Melancon by D'Aquin as to his feelings about the Union
and constituted a violation of Section 8(a)(1).
3. Harold Winston was called to D'Aquin's office on
October 16, and asked by D'Aquin if he knew of any union
activity in the backshop. Winston said he did not. D'Aquin
said that no union would come into his business under any
circumstances and that anyone who joined a union and
struck would be permanently replaced, that he could go
along US Route 90 and replace them in an hour. He asked
Winston if he was for the Union and Winston replied he
was undecided. D'Aquin asked if he had been contacted
by a union officer or representative. Winston said he had
not.
D'Aquin testified that he did not recall talking to
Winston on October 16. D'Aquin did call the parent
Thompson office and spoke to Personnel Manager Gross
on October 16, concerning the rumors of union activity.
Gross cautioned D'Aquin as to what he could and could
not say regarding union matters.4
I conclude and find that Respondent violated Section
8(a)(1) by D'Aquin's conversation with Winston in which
D'Aqum interrogated Winston as to his union activities,
feelings, desires, and knowledge of union activity by other
employees and whether he had been contacted by union
representatives and threatened that Respondent would not
go union under any circumstances, and that employees
4 D'Aquin's acknowledgment that the word "union" was
"taboo" until he received a request for bargaining from the Union
has been noted supra
408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would be permanently replaced quickly and easily if they
struck.'
4. According to the testimony, pressroom employees
had worked a shift on Saturday mornings and again in the
evening until early Sunday morning for a number of years.
In the early part of November, according to employees
Dan Tribe and Felton Romero, D'Aquin announced to the
pressroom employees, he had good things going for them,
and that they were going to have a savings and retirement
plan and that he was going to give each of the four men,
one Saturday evening off each month. Three of the four
employees received a Saturday night off prior to the strike.
Respondent offered no particular defense as to why this
change in working shifts was made. Respondent cross-
examined General Counsel's witnesses on the subject, but
they remained positive that they had not had a Saturday
night off in years, and Respondent introduced no contrary
evidence.
I conclude and find that this promise and announcement
of new fringe benefits and the granting of a Saturday night
off, made by Respondent in the midst of an organizing
campaign, was calculated to induce employees to refrain
from union activity in violation of Section 8(a)(1).
5. In early November, D'Aquin in a conversation with
Benoit about new chairs for the TTS monitors, told Benoit
they were going to get a raise in January.
D'Aquin did not testify about this conversation.
I conclude and find that this promise of a wage increase
made by Respondent is unexplained and, coming in the
midst of a union organizing campaign , was intended to
induce employees to refrain from engaging in union
activity in violation of Section 8(a)(1).
6. On November 3, the Union held a meeting at which
the balance of the Local's officers and a negotiating
committee were elected and a draft-contract proposal was
approved. There was some discussion of D'Aquin's
questioning of employees concerning the Union.
7. Around October 20, D'Aquin asked Sidney Hebert
how things were and invited him to come and discuss any
problems he might have. The word " union " was not
mentioned. Hebert and D'Aquin agree they had a
conversation in November, which Hebert places around
November 7, and D'Aquin says occurred after
November 10. After discussing improvements he was
going to make in the coffee area , D'Aquin told Hebert that
they would have raises after the first of the year and they
had a pension and hospitalization plan in the making. He
asked Hebert what he knew about the Union. Hebert told
D'Aquin that D'Aquin knew of the union talk since he had
called other employees into the office and would know
Hebert was lying if he said he did not know of the union
talk. D'Aquin asked who was behind the Union in the
composing room. Hebert said he would not tell on his
fellow employees. D'Aquin said he had a bright future and
he would like to see Hebert grow with the Company. He
asked who the union representative was and where he
5 Although there is no specific reference to "permanent
replacement" in the complaint, the term as used by D'Aquin, here
to Winston and later to many others, and included in the
November 20 speech, was initiated by D'Aquin when there was no
thought or rumor of a strike and used by him in conjunction with
other coercive threats to indicate to the employees that union
activity on their part would be futile since organization would only
mean a strike and a strike would mean loss of their jobs by
permanent replacement . In 914 infra, it is noted that D'Aquin
during a November 20 speech refused to say whether the term
permanent replacement meant loss of jobs or discharge In this
came from and whether he was in town. Hebert replied he
did not know. D'Aquin said Hebert was a key employee in
the composing room and asked if he was not interested in
sports. Hebert said he was. D'Aquin said he would speak
to Sports Editor Lennox and perhaps Hebert could write
some articles on local football games starting with small
teams and work up, and it would be a good opportunity if
he would take it. He asked whether Hebert wanted to
speak to Lennox or wanted D'Aquin to do so. Hebert
replied it was up to D'Aquin. D'Aquin continued that he
had received favorable reports on Hebert. Hebert said he
had tried to transfer to the newsroom when there had been
an opening in June 1964, but was unsuccessful. D'Aquin
said he knew nothing about it. He asked Hebert if he knew
about secret meetings being held by the Union or if he
attended any. Hebert said he would rather not talk about
it. D'Aquin said that Hebert could earn more money
writing articles and that he was asking Hebert questions
because he felt he could talk to him.
Four days later D'Aquin in his office asked whether
Hebert had talked to Lennox. Hebert said he had not.
D'Aquin asked what way he wanted to approach Lennox.
Hebert responded it was up to D'Aquin. D'Aquin said he
would talk to Lennox that afternoon. He then reminded
Hebert that he was being offered a good opportunity and
that he should take advantage of it. He asked if Hebert
knew that union dues which were then around 4 percent
could amount to 7 percent of the employee's pay. He
added that the Union was no good, that it would not listen
to a person's personal problems, that he had an open-door
policy and all the Union wanted was money, that the union
drifters and derelicts could come in and claim overtime
from the men and they would be working with drifters and
derelicts. D'Aquin asked Hebert what he knew regarding
strike talk in the composing room. Hebert said that he
knew nothing about it. D'Aquin said he had a letter from
Mr. Shearman of the American Press and that if there
were a strike or a walkout Shearman had volunteered to
have his men come train replacements and he had
contacts in other towns. D'Aquin said he was telling
Hebert this since he was a keyman and that if Hebert
repeated this to the composing room employees and told
them what the situation really was, they would listen to
him. If there were strike talk he could tell them what
would happen if they did strike. He asked Hebert who was
behind the Union in the composing room. Hebert replied
he would rather not talk about it. D'Aquin said he knew
who they were. He added that of the seven papers
Thompson had in the U.S. four were organized but that
none were organized after Thompson bought them. He
said he ran The Advertiser and'" they could not force
anything on him; The Advertiser was nonunion and was
going to stay nonunion and he had a right to replace
strikers and had people standing by. He concluded saying
he liked Hebert and did not want to see him get tied up
with slick union operators.
instance and in others I have considered this voluntary assertion,
not as a candid statement of what might happen in the event of an
economic strike, which would be a legitimate matter of free
speech, but as a threat of a collision course resulting in loss of jobs
or discharge if the employees pursued their rights and organized.
In this sense I have found that the threat of immediate, easy, and
permanent replacement in this antiunion campaign is an 8(a)(1)
violation, noting further that these employees are found to be
unfair labor practice strikers who cannot be permanently
replaced See Orkin Exterminating Company, 152 NLRB 83.
DAILY ADVERTISER 409
D'Aquin gave a much briefer version saying there was
one conversation in which he told Hebert that Lennox said
Hebert was interested in sportswriting and it might be a
good opportunity for him to see if he could write. He said
this conversation occurred after he had received the
Union's bargaining request and mentioned it to Hebert
who said he knew nothing about it and was not interested.
D'Aquin stated they then discussed football games and
added that he had no such letter from Shearman.
I do not believe D'Aqutn's brief account of the
conversations and do not credit him. Hebert seemed to me
to try to give all the facts he could remember and the
subsequent conversation of Hebert and Lennox set forth
below, Respondent's not producing Lennox to testify and
not explaining his absence lend additional credence to
Hebert's testimony.
I conclude and find that Respondent violated Section
8(a)(1) by D'Aquin's: (1) interrogation of Hebert
concerning his union activities and desires and what he
knew of the union activities including strike plans, union
attendance, and identity of union leaders and desires of his
fellow employees; (2) promising Hebert a wage increase
and other fringe benefits and the offer of a better job with
more money if Hebert would forsake his union inclinations
and attempt to persuade his fellow employees to refrain
from union activities including strike action;
(3) threatening that employees would be working with
drifters and bums and would not get any overtime if the
Union were successful in organizing ; and (4) trying to
induce employees to refrain from union activity by stating
he knew who the union leaders were and that he had
specific plans to immediately replace employees if they
struck.6
8. On the same afternoon after D'Aquin's second
conversation, Hebert was visited by Sports Editor Lennox
who asked if Hebert was ready, since D'Aquin had given
him the word to assign some football games to Hebert.
Hebert said he did not understand it. He had tried to get a
transfer to the newsroom at one time and the Company
would not hear of it, but now he was in great demand.
Lennox said he did not know anything about it, that
D'Aquin said to talk to him. Hebert said he was very busy
at his machine and would meet Lennox later in the
coffeeshop after his shift.
At the coffeeshop Lennox told Hebert that he was in the
middle, that D'Aquin had talked to him about Hebert's
writing sports articles and asked him to talk to Hebert
about the Union. Lennox asked what they wanted. Hebert
said they wanted better wages and working conditions and
gave a number of examples. Lennox said he was talking to
Hebert as his friend, that he did not want the composing
room boys hurt because of the Union, but D'Aquin was
mad. He asked Hebert how many in the composing room
were for the Union. Hebert responded that an
overwhelming majority were. Lennox asked if that meant
five or six men. Hebert replied that there might be five or
six against it. Lennox asked if that meant the rest were for
it and began asking about the union preferences of specific
employees. Hebert said he would rather not talk about it.
Lennox asked who was behind it, that he did not want to
see them making mistakes. He said D'Aquin liked Hebert
and he recommended that he go tell D'Aquin that he would
stick by him and tell the boys to forget about the Union.
Lennox said he felt the people in the composing room
would listen to Hebert.
For the next several days Lennox had short
conversations with Hebert about the Union. On the last
occasion he asked if Hebert had seen a man dressed in a
suit in the composing room the previous day. Hebert said
he had. Lennox said that was Shearman from the
American Press, that D'Aquin was not kidding but meant
what he said.? Hebert told Lennox he had enough talk and
wanted to be left alone. This last conversation, according
to Hebert, took place about 1 week after the initial
conversation.
As noted above Respondent did not call Lennox to
testify or attempt to explain why he was not called.
D'Aquin testified that he had not told Sports Editor
Lennox to question Hebert about the Union. D'Aquin
testified that in November, Lennox reported to him that
Hebert said the men did not want the Union but wanted to
get some things straightened out.
Respondent in its brief states that the General Counsel
did not prove that Lennox was a supervisor although he
has the title of sports editor, and further that the General
Counsel offered no positive proof that Lennox was
Respondent' s "agent."
1 have credited Hebert in the conversation he had with
D'Aquin and I credit his testimony concerning his
conversations with Lennox. We thus have Respondent's
general manager telling an employee he will speak to the
sports editor concerning the employee's writing sports
articles (an offer I have found to be an 8(a)(1) violation), the
sports editor speaking to the employee about writing
sports articles at the request of the general manager; and
the sports editor reporting the union attitude of the
employee to the general manager . These circumstances
show that Sports Editor Lennox was held out to Hebert by
D'Aquin as having authority to speak for and bind
Respondent. General Manager D'Aquin never sought to
disabuse Hebert of that idea and Lennox was not
presented to testify as to his status, or that his
conversation with Hebert was his own idea or that the
presumptive and apparent agency did not exist. From this
absence, I can only conclude he would not so have
testified and would have corroborated Hebert.
I therefore conclude and find that Lennox was held out
by Respondent as its agent , and in so acting, Lennox, on
behalf of Respondent, violated Section 8(a)(1) of the Act
by: (1) interrogating Hebert as to the union sentiments of
Hebert and other employees; their reasons for engaging in
union activity and the identity and numbers of union
leaders and adherents; (2) requesting Hebert to relinquish
his union activities and persuade other employees to
refrain from or terminate their union activities since
D'Aquin was mad, had replacements lined up and they
would be hurt by continuing their union activities; and
(3) offering Hebert a chance for promotion to sportswriter
and additional income to induce him to refrain from union
activities.
6 Here again , Respondent initiates talk of strike where
apparently there was none and, in the context of other 8(a)(1)
violations, urges an employee to head off employee union
activities by telling employees that if they organized there would
be a strike and he had specific plans whereby he could
permanently replace strikers immediately. The employer depicts
the inevitability of such occurrences if the employees pursue their
rights under the Act, making it clear they only stood to lose See
Louisiana Manufacturing Co., 152 NLRB 1301
r This refers again to the threat to permanently replace
strikers. This threat is inextricably woven in the pattern of
violations here.
410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
9 On November 10, the Union sent and Respondent
received the following letter:
November 10, 1964
Mr. Richard D'Aquin, General Manager
The Daily Advertiser
219-221 Jefferson Street
Lafayette, La.
Dear Mr. D'Aqum:
Please be advised that Lafayette Typographical
Union No. 832, International Typographical Union,
affiliated with the American Federation of Labor-
Congress of Industrial Organizations, has been
authorized in writing by a substantial majority of the
employees in the mechanical departments of your
firm to represent them for purposes of collective
bargaining on wages, hours and working conditions.
The mechanical department operations include all
mechanical operations from the receipt of the copy by
composing room employees to the finished product is
ready for delivery to the customer. All journeymen
and apprentice employees performing composing
room work which includes Teletypesetter operations
and proofreading; photoengravers, pressroom and
Stereotype employees are included in the collective
bargaining group represented by Lafayette
Typographical Union No. 832.
We are prepared to meet promptly with you and
your associates for the purpose of negotiating an
acceptable labor-management contract covering
wages, hours and working conditions for the
employees of your firm as above set forth.
The International Typographical Union has been in
existence since 1852. It enjoys a well-merited
reputation as a responsible and highly-esteemed trade
union composed of 114,000 highly skilled printing
craftsmen. The 765 subordinate unions of the ITU
maintain contractual relations with thousands of
fairminded employers in the printing and publishing
industry in the United States and Canada.
Looking forward to early and amicable negotiating
meetings.
Sincerely yours,
Joseph A. Saltarrelli,
Representative
International Typographical
Union
On the previous day, November 9, Thompson
newspaper's personnel manager, Gross, had arrived at
The Advertiser to install the insurance fringe benefit
plans. Gross testified he was at the newspaper when the
Union's letter was received but did not believe he was
there when D'Aqum wrote his reply. D'Aqum testified that
Gross helped him prepare his reply of November 13, which
after acknowledging receipt of Saltarrelli's letter, stated:
Your statements surprised me in view of the
numerous comments to the contrary that I've heard
during the years of my association with this
newspaper.
Apparently, questions of this nature follow the
procedure outlined in the National Labor Relations
Act. I have been advised that this law would cover
The Daily Advertiser. I assume that you have taken
the initial steps in this procedure and this agency will
soon be in contact with me.
After consulting counsel, D'Aquin with assistance from
counsel wrote a second letter to Saltarrelli on
November 19.
Dear Mr. Saltarrelli,
I am sure that you understood my letter of
November 13, to mean that we do not believe that you
represent a majority of our employees in an
appropriate bargaining unit , and that we think you
should have any questions concerning this resolved
by the National Labor Relations Board.
I thought that our letter of November 13 might not
be entirely clear on these points when I re-read it
today, which explains this letter.
10. D'Aquin held meetings with groups of employees
around November 15, to explain the fringe insurance
benefit plans which were to begin operation in January.
From the testimony I do not conclude that these plans
were initiated by Respondent to induce employees to
refrain from union activities, since according to
Thompson's personnel manager, Gross, the plans were
formulated and negotiations were progressing on them for
a number of the chain's papers, prior to the inception of
the union organization at The Advertiser. The
announcements of the plans at the meetings held for that
purpose, similarly would not be violative of the Act if not
used by Respondent to induce employees to refrain from
union activities. There is no indication from the testimony
that the announcements at the meetings held for that
purpose were so used. This is not to say that the benefit
plans were not used in an 8(a)(1) manner on other
occasions.
11. During the second week of November, Joseph
Melancon had a conversation with his supervisor,
Mechanical Superintendent Raoul Guidry about a new
employee being placed on a particular machine. Guidry
told Melancon that the machine was beneath his skills and
would not warrant his level of wages, and that he had plans
to make Melancon his assistant one day, that he would
take care of him. Melancon asked if he was going to take
care of him the same as he had during the last 3 years with
only a nickel raise. Guidry said he would check into it.
About a week later, Guidry reminded Melancon of their
previous conversation and said he had talked to a lawyer
who advised he do nothing during the labor dispute, but as
soon as it was over, he would give Melancon a raise and
make him his assistant.
Guidry partially corroborated Melancon by testifying
that in a conversation with Melancon in early November,
he told him he planned to make him the assistant
machinist. Guidry testified he did not recall a second
conversation with Melancon regarding making him his
assistant, nor did he recall saying anything about a lawyer
or about the union situation.
With the partial corroboration of the first conversation,
the naturalness of the conversations as narrated by
Melancon, and the lack of a denial that the second
conversation took place, I credit Melancon and find and
conclude that Respondent by Guidry violated Section
8(a)(1) of the Act by promising Melancon a promotion and
DAILY ADVERTISER
raise after the union dispute was over as an inducement
for him to refrain from engaging in union activities.
12. On receipt of D'Aquin's first reply to the Union, a
meeting of the Local Union's officers was held and the
reply discussed. Following this discussion and a report
from Hebert about D'Aquin's offer to him of a better job
and the questions about the Union, the officers decided to
call a special meeting of union members.
At the November 18 union meeting, D'Aquin's reply
was read to the 21 members present. The tenor of the
ensuing discussion, according to Saltarrelli, was that
D'Aquin did not seem interested in bargaining with the
Union. Some of the members reported D'Aquin's
interrogation and warnings to them and that they believed
the questioning would be followed by discharges and they
might as well walk out. Saltarrelli warned of the
seriousness of a strike and the procedures which the
Union must follow. The minutes of the meeting disclose
that Saltarrelli told employees he had checked with the
American Press in Lake Charles concerning rumors that
American Press employees would temporarily replace The
Advertiser workers if they struck. Saltarrelli said the
rumors were false. The minutes also reflect that the
members agreed unanimously to strike.
13. On November 19, Saltarrelli and D'Aquin had a
telephone conversation. Saltarrelli advised that the Union
represented the employees and asked D'Aquin to meet
and discuss their problems. To D'Aquin's inquiry,
Saltarrelli replied he had not received D'Aqum's second
letter. D'Aquin said the Union should go through the
appropriate Board procedures before they sat to discuss
anything. Saltarrelli said he had a majority of the
mechanical department as dues-paying union members
but would not use the Board to prove his majority. D'Aquin
said he did not know much about labor law and would
consult with his attorney. Saltarrelli said he was going
home for the weekend and would return the following
week and call D'Aquin.
I do not believe as Saltarrelli testified that he told
D'Aquin the Company could petition the Labor Board and
I do not believe that D'Aquin told Saltarrelli he doubted
the Union's majority.
O. A. Schumacher, an advertising representative for
Respondent, testified that in mid-November, after letting
D'Aquin know he was a part-time clerk at a local motel,
D'Aquin asked if he knew Union Representative
Saltarrelli. Schumacher said he did not and D'Aquin asked
him to report to him when Saltarrelli checked in.
Schumacher testified he never reported on Saltarrelli to
D'Aquin.
I conclude and find that Respondent by D'Aquin
violated Section 8(a)(1) by requesting an employee to
report on the whereabouts of the union representative.
14. D'Aquin held three or four group meetings of 8 to 10
employees from the composing-press department (later
found to be the appropriate unit by the Board) on
November 20. D'Aquin testified that at each meeting he,
rather than Raoul Guidry, the supervisor of this
department, read and did not vary from a speech which
had been prepared with assistance of counsel. Most of the
witnesses agreed that he appeared to read from a piece of
paper and estimated that the meetings lasted 10 to 15
minutes with the exception that one meeting may have
lasted as long as an hour The employees were not given a
copy of the speech although one employee asked for a
copy of it
It appears that Dore, Leroy and Maxine Benoit, and
Ruth Ann Robin were together at one meeting. Essentially
411
their description of the meeting is that D'Aquin mentioned
that the Union was organizing and he had asked the Union
to petition for an election but said the Company would not
have to abide by a Board ruling. He continued that if they
wanted to get out of the Union it was not too late. If they
should go out on strike the Union did not pay a big strike
benefit and they could not collect unemployment. He
added that if they struck he would replace them.
Winston and Domec with some others were in a
different meeting. Domec recalled D'Aquin saying he
understood some of them had signed union cards, that he
had friends in the business and could permanently replace
them, and that only the Company could do something for
them. Winston added that D'Aqum said he heard rumors
of union organization and a planned strike and asked if any
of them knew of it. D'Aquin said that if they belonged to
the Union they did not have to strike but they would be
replaced if they did. D'Aquin also mentioned the new
fringe insurance plans and a wage increase scheduled for
the near future.
Bourgeois, who apparently was in a third group, testified
D'Aquin said he had heard rumors of a union and did not
know or care whether they were members or not. He said
that if they struck they could be replaced and if they were
in the Union they could drop out at any time and no harm
would come to them. D'Aquin also said that the Company
was the only one that could give them anything, not the
Union.
Lancon, Primeaux, and Wilton Guidry with others were
in still another meeting which Lancon testified lasted
nearly an hour. D'Aquin said he had heard of the union
organizing and the men did not need a union card to work
there; that the Union used illegal tactics and lies to get
them to join and if they went out on strike the Union paid
small strike benefits and they could not draw
unemployment compensation ; further that if they struck
he would permanently replace them and was within his
rights to do so. At that point Lancon twice asked D'Aquin
if that meant they would be fired. D'Aquin replied he did
not say that, he said they would be replaced. D'Aquin said
he would not have to abide by Board rulings if the Union
won an election or sign a contract . D'Aquin was asked if
the Thompson newspapers owned The Advertiser and
replied yes but that he ran it. He was also asked how many
of the Thompson newspapers were organized and
responded 4 of 11 in the United States and about half in
Canada. Other questions were asked of D'Aquin and
according to Lancon things "got hot."
In comparing the above descriptions with the written
speech, I find that there are inconsistencies such as the
repeated statements that union strike benefits were small
and strikers could not receive unemployment
compensation. I have concluded that contrary to his
testimony D'Aqum did not adhere strictly to the prepared
speech but made additions. It appears that the text was
carefully constructed to tread the narrow path between
free speech and 8(a)(1) coercion. In a game of "labor
relations brinksmanship," Respondent treads this path at
his peril and where ambiguities exist , the doubts should
not be resolved in Respondent's favor. Further this speech
should not be considered in isolation but rather in the
context of Respondent' s contemporaneous conduct,
herein found unlawful.
Viewed in this light, the gist of the November 20 speech
to the employees in the unit was that Respondent wanted
the Union to go through Board procedures and if the Union
won, that did not mean the Company would abide by its
results or that a contract would be concluded since the
412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company could say no to anything the Union wanted, and
in an ensuing strike employees would lose their jobs by
being permanently replaced, as well as suffer from low
union strike benefits and no unemployment compensation
Respondent also wanted employees to report on what the
Union was saying and to ask questions so management
could respond with its side of the issues. This speech thus
parallels and reinforces some of the statements I have held
supra, to constitute 8(a)(1) violations, such as the futility of
a strike and requests to report on union activities, and
served to demonstrate to employees that engaging in union
activities and proceedings through the Board would be
futile.
Although this series of talks to employees was not
specifically alleged as 8(a)(1), the parties litigated it
extensively and Respondent has claimed it is not violative,
including the point in its brief. In this situation I feel
compelled to rule on the question and find that these
speeches were violative of Section 8(a)(1) in that they
continue the pattern of 8(a)(1) violations I have found
supra, by threatening employees that Respondent will
thwart their organization and that strike action will be
futile since they will lose their jobs by being permanently
replaced, and asking employees to report on union ideas
and plans. I also consider this declaimer by Respondent
that it controlled the employees' destinies and was
unwilling to share any prerogatives with their bargaining
agent, a clear indication to its employees that Respondent
rejected the principle of collective bargaining.
15. In his office early on November 20, D'Aquin asked
Harold Winston if union officials or representatives had
contacted him. On being told no, D'Aquin asked what
reasons Winston would have for joining a union . Winston
said he would join since he was underpaid and worked
long hours. D'Aquin said he was going to get one of the
Tribe boys from Progress Printing (a Respondent
subsidiary from which some employees were later
transferred to Respondent), to help out and told Winston
he was making about $540 per month. Winston said he
could only make that much by working long hours
D'Aquin reminded Winston that Respondent had loaned
him money without interest. Winston acknowledged it and
said he had paid them back. D'Aquin told Winston that the
Union would not help him with family troubles but
Respondent would. Winston asked why so many
Thompson papers were unionized if the Union were as bad
as D'Aquin claimed. D'Aquin said the Thompson
newspapers were not telling him how to run the paper, that
he was running it, and if employees struck they could be
permanently replaced within an hour, that he had friends
in the business.
Later that day, D'Aquin asked Winston what kind of
union talk he was doing in the backshop. Winston said he
had told Jay Boudreaux what D'Aquin told him that
morning. D'Aquin asked what he thought about the Union
and Winston said it had its good and bad points.
D'Aquin testified he recalled a conversation in which
Winston said some of the boys were thinking of a strike
and asked if they could get the paper out and he replied he
thought he could with the help of his friends in the
business.
I credit Winston's version of these two conversations,
finding that D'Aquin did not deny that they took place but
rather sought to turn them into a single "free speech area"
conversation. I conclude and find that Respondent by
D'Aquin violated Section 8(a)(1) of the Act by interrogating
Winston as to his union sentiments and activities and
warning that strikers would immediately be permanently
replaced.
16. Around November 24, D'Aquin conducted a series
of interviews with employees from the composing-printing
department asking personal questions in completing a new
form of personnel questionnaire. D'Aquin did not
interview any employees in any other department and
though he testified that the questionnaire was to be
completed by all employees and by any new employees, it
would appear from the record and testimony of new
employees that only the employees in the unit were
required to respond to the form. D'Aquin testified that
from a review of the personnel files, it appeared that
Respondent had insufficient information about its
employees and he accepted and put into use a form
furnished him by Thompson's personnel manager, Gross.
Neither the form or the interviews were alleged as 8(a)(1)
violations and I will not determine whether they were
violative of the Act, since Respondent did not have a
chance to meet the question poised as an unfair labor
practice. I do consider that the interviews, with questions
regarding where relatives were employed, whether the
employees had bank accounts, whether and to whom they
owed money and to whom they would turn for help at the
Company, conducted in the context of Respondent's
8(a)(1) conduct and statements about striker replacement,
are part and parcel of the psychological antiunion
campaign Respondent conducted to inhibit its employees'
rights.
17. Saltarrelli called D'Aquin on Monday,
November 23, and D'Aquin put off a meeting on the basis
that he had not been able to talk to counsel. Saltarrelli was
unable to reach D'Aquin on November 24 or 25, and
complained to local union officers that he was getting a
runaround. Saltarrell► reached D'Aquin at home on
Thanksgiving Day, November 26. He told D'Aquin that
they wanted to meet and begin negotiations, that he was
sure D'Aquin knew the majority of the people were ITU
members, that the Board procedures were too time
consuming and he would not use it but would agree to an
election held by a disinterested third party such as a priest
or minister. D'Aquin replied that he had to rely on his
attorney's advice, that his attorney was on a holiday and he
could not talk to Saltarrelli until Monday. Saltarrelli said
Monday was too late, that the employees were tired of
D'Aquin harassing and questioning them about the Union
and he did not think he could hold the people until
Monday, that they might strike and shut down the paper.
There was no agreement to meet further.
D'Aquin called Gross and reported the conversation and
Gross flew to New Orleans on Friday, November 27, to
confer with Respondent's counsel on Saturday. After the
conference Gross drove to Opelousas (24 miles from
Lafayette) where he remained for several days so D'Aquin
could confer with him.
18. On Friday, November 27, D'Aquin called Saltarrelli
and arranged to meet him at a local restaurant. Saltarrelli
asked D'Aquin to recognize and begin negotiations with
the Union. D'Aquin said he did not know much about labor
law and had to be guided by his attorney who had informed
him that the Company could file a petition with the Board
for an election. Saltarrelli claimed he had told D'Aquin the
Company could file a petition and advised D'Aquin of the
benefits of having, the ITU in his shop. D'Aquin said he
would have to consult with his attorneys and would not be
able to talk to Saltarrelli further until Monday. Saltarrelli
said his people were nervous from being questioned by
DAILY ADVERTISER
D'Aquin and that he would try to hold them but did not
know how long he could do so.
The minutes of the special meeting of union members
held November 27, recite that Saltarrelli reported his
conversations with D'Aquin during that week as follows:
(1) In a phone conversation early in the week D'Aquin
told him to petition for an election and he said he would
not. (2) That in another phone conversation on
Thanksgiving Day, he told D'Aquin the members were
tired of waiting to meet with him, that they wanted
recognition and bargaining and he should stop bothering
them about the Union. D'Aquin said he wanted to wait to
meet until Monday and Saltarrelli said he did not want to
wait till then and D'Aquin had better hurry up or the Union
might do something he might not like. (3) On Friday,
D'Aqum, at Jacobs Restaurant, told Saltarrelli he still
wanted the Union to petition for an election, and Saltarrelli
declined saying the people did not want to delay that long,
but that a quicker election could be held by agreeing on a
disinterested third party conducting one in which they
both would agree to be bound by the majority's wishes.
D'Aquin said he would have to check further with his
attorney and would contact Saltarrelli on Monday.
The minutes also reflect that preliminary arrangements
were made for a strike if The Advertiser should refuse to
recognize the Union.
19. D'Aquin asked Harold Winston on Friday
afternoon, November 27, if he had been contacted by any
union official or representative. Winston said he had and
D'Aquin asked what he had decided. Winston said he was
undecided. D'Aquin said he would hate to lose a keyman
like Winston, but if he struck, he would be permanently
replaced and no law would prevent his hiring
replacements, that with his friends in the business they
could be replaced in an hour. D'Aquin asked who was
pushing the Union in the composing room. Winston said he
did not know. D'Aquin asked how many were union
members. When Winston said he did not know, D'Aquin
slammed the desk saying he would find out one way or the
other and asked how many members would walk out if
there was a strike. Winston said he did not know. D'Aquin
said he would do it the legal way and file with the Board
but if the Union won that did not mean he would have to
abide by it.
As noted in ¶15 above, D'Aquin recalled only one
conversation with Winston, which by his version would be
in the "free speech area." I conclude and find that this
conversation took place as outlined above and by it
Respondent violated Section 8(a)(1) by interrogating
Winston as to his union sentiments and desires, to the
identity of employee union protagonists, and to the
sentiments of employees regarding their union activities,
in particular, their support for a strike and again
threatening immediate permanent replacement of strikers.
20. During Gross' conference with Respondent's
counsel, as noted in ¶17 above, the instant RM petition
was prepared and later given by Gross to D'Agmn, during
Gross' conference with him on Sunday, November 29, in
Opelousas. D'Aquin testified that he signed the petition
and in box 6a asking the number of employees in the unit
crossed through the "app. 35" and inserted a question
mark. The petition was given to Respondent's local
attorneys who mailed it to the Board on November 30.
On Monday, November 30, D'Aquin called Saltarrelli
and told him they had filed a petition with the Board.
Saltarrelli called back later asking if they had filed for a
consent election and D'Aquin said he would have his
attorney send Saltarrelli a copy of what they filed.
413
21. On the afternoon of November 30, D'Aquin spoke to
all composing-press department employees in a meeting
held in the "Board Room." D'Aquin contended he read
from a prepared speech making only one extemporaneous
comment about Saltarrelli and that one of the employees,
Howard Judice, followed him on a copy of the speech and
signed it. However, Judice was not offered to testify
concerning the speech or what he did. One section of the
speech consisted of a series of questions and answers,
copies of which were posted in the plant.
While accounts of this speech varied somewhat, some of
the employees who testified concerning it agreed that
D'Aquin said he had filed a petition for an election, but
even, if the Union won the election, he did not have to
abide by it and that striking employees would be
permanently replaced. They also agreed that he read some
questions and answers and said they could take copies.
Practically all the employees recalled his comment about
Saltarrelli being so sweet he did not have to put sugar in
his coffee.
This speech was not alleged as violative of the Act, and I
feel that it was not specifically violative. I further feel that
those who testified that D'Aquin said the Company would
not have to abide by a Board resolution of the matter were
mistaken as to when this was said. I have found that such a
statement was made during the November 20 meetings.
While I find that this speech is not independently violative
of the Act, it is a reaffirmance of what was illegally stated
before, only this time in general "free speech" terms and
was a further attempt to convince the affected employees
that their union allegiance would avail them nothing but
turmoil and loss of jobs. This conclusion is based in part on
the carefully worded questions and answers posted in the
plant and used as a part of this speech.
22. Following the meeting, D'Aquin went by Dore and
Benoit's working place and asked if he had done the right
thing in going to the Board. They replied that he was the
boss. D'Aquin said he wanted their opinion and, finally,
they replied yes. He said he had something in store for the
boys but he could not give them a raise now because the
Union would throw an injunction at him , but they would
have a raise coming in January as soon as the matter was
over.
D'Aquin's version of the conversation was that as he
walked back into the plant before closing time, he saw
Dore and Benoit and asked if they did not feel going to the
Board and having an election was the best way to handle
the matter and they both said yes.
Dore's and Benoit's version of the incident contains the
details which make them more credible while D'Aquin
briefly reports the highlights which appear favorable to
him. I credit Dore and Benoit and conclude and find that
Respondent by D'Aquin violated Section 8(a)(1) by seeking
to induce them to abandon their union activity and
prounion sentiments by holding out to them the promise of
a future wage increase and blaming the Union for their not
getting a wage increase immediately.
It is undisputed that the above actions and incidents
including those I have found violative of the Act, took
place on or before November 30, and occurred prior to the
filing date of the RM petition in this matter.
C. Alleged Violations and Actions on and after
December 1, 1964
23. Gilbert Lancon, the union president, testified that
while at work in the composing room before noontime on
December 1, D'Aquin told him they would do it the legal
414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
way through the Board. Lancon replied that a legal
election could be held by a disinterested third party such
as a priest, teacher, or principal. D'Aquin said they would
go through the Board. Lancon and D'Aquin then engaged
in a colloquy concerning the distinctions between a
petition and a consent election with D'Aquin finally
observing he would leave it up to his lawyer and adding
that they were installing fringe benefit insurance plans and
a raise was coming the first of the year. Lancon asked if
the Union was the reason D'Aquin was making these
promises and said that if it had not been for government
minimum wages going into effect, the majority would not
have gotten other raises. D'Aquin said he could not give
raises then, that it would be an unfair labor practice and
his lawyer would not allow it. With D'Aqum showing no
interest in a third party election, Lancon asked why they
should have a Board election since D'Aquin had said he
did not have to abide by it if the Union won.
Lancon placed this conversation as being before noon
on December 1, after the November 30 speech, adding
that Joseph Primeaux who worked near him was out to
lunch and on hearing about the conversation told Lancon
he was sorry he missed it.
D'Aquin states he had a short conversation with Lancon
but says it occurred after his November 30 speech and
before he spoke to Dore and Benoit that day. D'Aquin
testified he told Lancon that the proper legal way to handle
the thing was through the Board. He states Lancon asked
why not have a disinterested third party election and he
replied that a third party could not do it since they did not
know the size of the unit or who would be eligible to vote
and walked away.'[
D'Aquin stated that this conversation did not take place
on December 1, because he went to Opelousas in
midmorning to confer with Gross. Gross testified that on
December 1, he and D'Aquin ate lunch and spent the
afternoon together. D'Aquin said he assumed at the time
of this conversation that Lancon was a union member
since he had heard he was and thought him to be the most
vociferous of the union adherents.
I credit Lancon that this conversation took place on
December 1. Gross' testimony does not corroborate
D'Aquin's midmorning departure for Opelousas but leaves
time for the prenoon conversation. Lancon's testimony
here, seems to be in a natural context with the details
provided, while D'Aquin's testimony does not appear
natural or complete and impressed me as an attempt to
embellish a defense rather than provide his best
recollection of an incident. Although I have stated that I
think Lancon sought at times to embellish his testimony, I
believe his account of this incident is the most factual and
I credit it.
I therefore conclude and find that on December 1,
Respondent by D'Aquin violated Section 8(a)(1) of the Act
by promising employees raises after the first of the year
and blaming the Union's campaign as the reason why
employees would not receive raises before then, thereby
seeking to induce employees to refrain from supporting
the Union.
24. The Union held an evening meeting on December 1.
Saltarrelli read Respondent's petition and interpreted the
filing as a stalling tactic to get Respondent through its
heaviest work period. Other employees expressed
themselves concerning the petition and D'Aquin's hostility
and unwillingness to deal with the Union, concluding that
he would probably begin firing employees and they might
as well strike if he continued to refuse to meet with them.
Winston reported that D'Aquin said a strike by the
mechanical department would be illegal and he would get
an injunction against them. It was agreed that the
negotiating committee accompanied by Saltarrelli would
speak to D'Aquin at the beginning of worktime on
December 2, while the rest of the unit employees would
wait in a building across the street, and if D'Aquin refused
to recognize and bargain with the Union, they would strike.
Apparently with little hope that D'Aquin would recognize
the union plans for a strike were made.
25. Raoul Guidry, the mechanical superintendent,
received a phone call around 5:30 a.m. on December 2,
from employee Peter Boutin who reported that employee
Quention Fontenot told him the Union was going to strike
that morning and the boys were not coming to work.
Guidry called D'Aquin between 5:30 and 6 a.m. and
reported the call.
Melancon, whose shift started at 6 a.m., said that
Guidry, who came in a few minutes later, asked if they
were planning to walk out. When Melancon said he did not
know, Guidry said if they were planning to walk out that
Melancon would know would he not Melancon said he
guessed so. Guidry said, "You don't know nothing about it
huh?" and walked off when Melancon made no comment.
Guidry's version of the conversation is abbreviated but
he admits he asked the initial question about whether the
employees were going to strike that day.
I conclude and find that Respondent through Foreman
Raoul Guidry interrogated employee Melancon as to the
intentions of his fellow employees about engaging in a
strike in violation of Section 8(a)(1).
26. Melancon testified that around 6:20 a.m. D'Aquin
arrived and went to where Melancon was running his
machine. D'Aquin asked why they wanted to walk out, that
it was not legal and made other statements while
Melancon worked. D'Aquin told Melancon to leave the
machine alone and talk to him. D'Aquin again asked why
they wanted to walk out, that he had a good job with a good
future and why should they walk out. D'Aquin said, "You
stay with us and I'll make you an assistant to Raoul and I'll
give you a raise," and turning his head said, "Huh,
Raoul?" Guidry said yes. Melancon said he had been
doing Guidry's job for about 10 years and had never seen
any pay increase or promotion and did not see why he was
getting a promotion now. They continued to talk about the
job, about gripes Melancon had and that what he owned
came partly from sources other than his salary from The
Advertiser, until the union negotiating committee walked
in around 6:45 a.m.
D'Aquin testified he arrived at work around 6:40 and
spoke with Melancon just a few seconds saying he heard
some of the boys were not coming to work and the only
way to handle the matter was with a Board election.
D'Aquin said he recalled nothing further of the
conversation and denied he had offered a promotion and
raise to Melancon.
I do not believe D'Aquin's version of this conversation
but credit Melancon's testimony. I believe from the
circumstances and from my observation that D'Aquin
would have reacted to the situation as Melancon
described. A strike in the middle of the busiest work
season would have evoked more than the mild
dispassionate statement D'Aquin said he made
" On rebuttal, Lancon denied that D'Aquin ever said anything
about not knowing who was in the unit or eligible to vote
DAILY ADVERTISER
particularly where he found this one man working. I
believe D'Aquin's testimony concerning this conversation
is a reasoned afterthought as to what he should have said,
and considering himself to be an intelligent man, what he
feels he said.
I therefore conclude and find that Respondent by
D'Aquin violated Section 8(a)(1) by offering and promising
employee Melancon a promotion and raise if he would not
join his fellow employees in a strike and by interrogating
him about his and other employees' union sentiments.
27. On the morning of December 2, 22 of the 23 union
members gathered at the hall across the street from The
Advertiser. The 23d member, Melancon, was at work. As
noted in ¶24 above, they had agreed that the negotiating
committee with Saltarrelli should meet with D'Aqum at
shift starting time, 6:30 a.m. Saltarrelli was late, so around
6:45, the union committee entered The Advertiser, looked
for D'Aquin in his office, and finally located him in the
composing room. The committee consisted of Lancon,
Primeaux, Hebert, and Bourgeois and midway through the
meeting they were joined by Saltarrelli. Melancon and
Guidry witnessed the meeting with D'Aquin.
Lancon began by saying that he was the president of
Local 832 and wanted D'Aquin to sit down and negotiate
and settle the matter. D'Aquin replied he would not
negotiate with them because he had to consider the
welfare of all the workers. Lancon said that the majority
were tired of waiting for him to talk and they did not want
to wait any longer. D'Aquin said they should wait, that he
had petitioned the Board and they should wait for the
election. Lancon said that if he wanted an election, they
would give him an election right then in the shop with a
priest or other disinterested third person. D'Aquin said no,
he wanted to do it the government way, that he had
petitioned the Board and wanted a government election.
Lancon said the Union wanted him to recognize it.
D'Aquin said he could not talk to Lancon or Primeaux but
could talk to Hebert and Bourgeois, that he had played ball
with them. Turning to them he told them not to let them do
this to you, think of your family and yourself, the paper
was going to be published whether they walked out or not,
that the Union would just drag them down, they were
making a big mistake. He said that if they walked out it
would be an illegal strike since they did not give any notice
and he would have his lawyer get an injunction against
them. Bourgeois told D'Aquin he did not want to walk out
and did not think the others wanted to either, but D'Aquin
would have to sit down and discuss the issues with the
committee. D'Aquin refused saying this was Communist
tactics. Primeaux tapped him on the shoulder asking if
D'Aquin was calling him a Communist. D'Aquin brushed
his hand away saying they would not have any rough stuff.
About this time Saltarrelli arrived introducing himself.
D'Aquin said he knew him. Saltarrelh said this was the last
warning, that the men did not want to walk out but would
be forced to if D'Aquin did not begin negotiating. D'Aquin
said he did not want to do it that way, he did not think they
had a majority. Saltarrelli told him to look around, he only
had four or five people left inside, that it would be better
for him to see they had a majority then, rather than count
them on the picket line. D'Aquin said he had petitioned
the Board for an election. Saltarrelli said they could have
an election that day with D'Aquin's parish priest or a
disinterested third person to hold it. D'Aquin said he did
not think it would be legal. Saltarrelli told D'Aquin that
having a union would be good for the Company, and if they
needed time before beginning negotiations since it was
their busy season they would give them time but needed
415
recognition first. D'Aquin said the Union would not be
good for the Company, that they had a bunch of "winos."
He told Saltarrelli that a strike would be illegal and he
would get an injunction against them in 15 minutes.
D'Aquin said he wanted to call his lawyer and Saltarrelli
agreed. D'Aquin asked if Saltarrelli could look him in the
eye and tell him that he was doing the right thing in forcing
these people out. Saltarrelli looked at D'Aquin and said he
could look him in the eye and say he was doing the right
thing in begging and pleading with him to recognize the
local. D'Aquin said he meant about forcing them out.
Saltarrelli said he was not forcing them out, but that they
were tired of D'Aquin's constant questioning and coercion
and D'Aquin was the one who was forcing them out.
In a few minutes D'Aquin returned saying he had been
advised that they should wait for the Board election.
Either Saltarrelli or Lancon said they were tired of waiting
and D'Aquin would have to set a date for negotiations. One
of the group asked D'Aquin if he had doubts to check with
his lawyer as to whether a third party election using a
priest or principal would be legal. D'Aquin left and in a few
minutes returned and said he had been advised that the
only legal way was the Board election.
Saltarrelli said that if this was his last reply, there was
nothing further for them to do but walk out and that the
pickets would be up shortly. He told D'Aquin that if he
changed his mind he could have them back in 15 minutes.
D'Aquin gave Respondent's version of this meeting,
since Guidry who was present was not questioned about
it. In D'Aquin's shorter version he replied to Lancon's
request for recognition of the Union by saying they should
wait for the Board election which could be held in a matter
of weeks. When Lancon repeatedly requested recognition,
D'Aquin turned to Hebert and Bourgeois saying he could
talk to them and that the proper way to handle it was with
a Board election. Saltarrelli came in and said D'Aquin
would have to recognize the Union or he would not get his
paper out since the boys would not come to work. D'Aquin
told Saltarrelli they should wait for the Board election
which would take 2 or 3 weeks Saltarrelli replied it would
take from months to a year, and he did not want to use the
Board. D'Aquin said they should do it the American way
and have an election, that he did not go for these
Communist tactics. He stated that Primeaux tapped him
on the shoulder and he told Primeaux he did not want any
rough stuff. D'Aquin says there was mention made that he
should look around and count his people, to which he
replied that he did not know under what circumstances
they were kept from coming in. To the suggestion of a third
party election, he states he replied that they did not know
who should vote, that the mailroom and other people were
not there and he wanted a Board sanctioned and certified
election. When Saltarrelli said he would not have anything
to do with a Board election, he asked to leave to contact
his attorney. He testified the meeting broke up when he
told the Union they were going to do it "the legal way" and
pursue the petition.
I do not believe D'Aquin's abbreviated version, but have
set forth above what I believe took place considering the
testimony of all who were present. Again I feel that
D'Aquin was attempting to shortcut the meeting and
testify only to what he felt was favorable and has again
rationalized some of his testimony. On cross-examination
he retreated from the statement about the "mailroom
employees." After several questions he said he used the
phrase "all of our people are not here" and did not recall
using the phrase "mailroom." During further cross-
examination, D'Aquin said that to Saltarrelh's statement
416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
there were only six people in the plant , he replied that he
did not know under what circumstances his people did not
report for work ; Saltarrelli said he was keeping them out;
D'Aquin told Saltarrelli he did not believe he represented
a majority but did not ask how many he did represent.
When pressed further D'Aquin testified he told Saltarrelli
that he did not think he represented an uncoerced9
majority of his employees.
These examples illustrate my prior observations
concerning D'Aquin 's testimony and why I do not credit it.
In this meeting, although confronted with the obvious
fact that the Union did represent a majority of the
backshop employees , D'Aquin continued to refuse to
recognize this fact , vetoed the suggestion of a quick
election by a disinterested third party, and clung to the
"legality" of a Board election while simultaneously
attempting to split the negotiating committee and
undermine the Union by appealing to some of its members
not to strike , derogating the Union and its members,
terming their demand and strike action "communist
tactics" and threatening to have them enjoined for
engaging in an illegal strike. D'Aquin 's statements in this
meeting were not alleged as independently violative of
Section 8 (a)(1), but were fully litigated by all parties,
particularly as part of the refusal-to-bargain allegation. I
will consider this meeting and D'Aquin's conduct further
under the section entitled "Respondent 's Defenses," but
conclude and find here that D'Agwn violated Section
(a)(1) in this meeting by, among other things, seeking to
divide the negotiating committee and undermine the
Union by specially appealing to two members of the
negotiating committee to refrain from engaging in the
strike, since they would be "pulled down " castigating
union members as "winos" and as using "communist
tactics" in striking , and threatening to enjoin the strike as
illegal.
28. While other picket lines were established in front of
The Advertiser , Dore and Benoit started picketing in a
criss-cross pattern behind the plant around 8 a.m. During
their 1-hour tour of picket duty, D'Aquin came out of the
plant and walked beside Benoit saying that he should quit
this kid stuff and go back to work or he would hire women
to take his job. Benoit said he would not quit picketing,
that he was in the Union with the boys and would stick
with them . D'Aquin said he had talked to him yesterday
about petitioning the Board and he said it was all right.
Benoit answered yes but the boys this morning offered you
an election with the priest of your choice. D'Aquin agreed
but said he wanted to do it the legal way and the
conversation concluded.
D'Aquin went over to Dore and asked why he did not
come to work , that they had a responsibility to the
community to print a paper. Dore did not answer and
D'Aquin returned to the plant.
D'Aquin denied that he talked to Dore and Benoit on the
picket line on December 2.
I credit the testimony of Dore and Benoit and do not
believe D'Aquin 's denial, having determined that they are
the more credible witnesses who sought to disclose what
happened to them . Their testimony is natural , and in view
of D'Aquin 's previous conversation with them (¶ 22 above)
and his actions that morning with Melancon (¶26 above),
and in the context of the threats to permanently replace
strikers , I conclude and find that Respondent by D'Aquin
' Italics is supplied for this word which was used in cross-
examination for the first time in discussing this incident The use
of this and other legal phrases D'Agmn testified he used,
on December 2 violated Section 8(a)(1) by urging Dore and
Benoit to abandon the strike.
29. Harold Winston testified that while on strike one of
the newspaper employees told him that all the strikers
were permanently replaced . He stated he wanted to know
if he could go back to work and called Supervisor Jay
Boudreaux . During the conversation the possibility of the
Union fining him if he returned to work was mentioned,
but Winston denied saying he was concerned for his
family. Boudreaux said he thought Winston could return to
work if he wanted.
He testified that D 'Aquin called him later and asked if
he wanted to return to work and he answered no.
According to Winston these conversations occurred about
2 weeks after the strike started.
D'Aquin and Boudreaux testified that Winston called
Boudreaux the day after the strike started saying he
wanted to return to work . On hearing this report D'Aquin
told Boudreaux to have Winston call him . Winston called
but D 'Aquin was busy and later returned the call . Winston
asked for his job and when D 'Aquin said he could return,
Winston said he would come back the following day, but
was fearful for his family. D'Aquin asked if he wanted
transportation and Winston said he would have his wife
drop him the next day and that concluded the
conversation . Winston never returned to work and is still
on strike.
In this incident I believe that Winston was trying to
determine whether he had been permanently replaced and
I feel that D 'Aquin 's telephone call was a result of Winston
calling D'Aquin at Boudreaux ' s direction , to see if
Winston wanted to return to work. In this context I would
not find D 'Aquin's statements to Winston to constitute a
violation of the Act.
30. Hebert testified that in the afternoon of
December 2, he saw four men go into The Advertiser
office and seeing Lennox through the window asked who
the men were. Lennox wrote on a piece of paper which he
placed against the window the following: "American Press
I told you he wasn't kidding." This of course relates back
to Lennox 's prior conversations with Hebert described in
¶8 above.
On December 3, Respondent , by D'Aquin , sent a one-
page letter addressed to all the strikers and their wives or
husbands, which reviewed the Company 's position as to
how the strike initiated , notified strikers that if they did
not return to their jobs by Saturday , December 5, at
7 a.m., that D 'Aquin would have no alternative but to hire
replacements for their jobs.
Aside from the testimony that replacement employees
were hired as permanent employees throughout the week
commencing on the day of the strike, and the minimal time
of the notice, and whether these factors indicate the letters
were not in good faith, the letters were addressed to the
strikers and their husbands or wives and is a direct appeal
to the strikers and their families to abandon the strike.
Respondent did not attempt to contact the Union or its
officers or negotiating committee regarding the strike but
rather sought to undermine the majority representative by
making a direct appeal to the employees who had been
continuously threatened by D'Aquin with immediate and
permanent replacement . I find and conclude that this
psychological warfare tactic of Respondent violated
Section 8( a)(1).
emphasize my conclusion that he testified to his conclusion and
rationalizations
DAILY ADVERTISER
31. A hearing was held on the instant RM petition and
on January 11, 1965, the Regional Director issued his
Decision and Direction of Election.
The payroll for November 9 through December 1, in the
unit found appropriate by the Regional Director as
modified by the Board, showed 34 unit employees of whom
23 were union members as I have determined previously.
On February 10, 1965, the election was held with both the
strikers and replacement employees voting. According to
the Regional Director's Supplemental Decision,
approximately 63 employees were eligible to vote and of
this number, 6 cast ballots against the Union and 57 ballots
were challenged, some by Respondent on the basis that
the strikers had been permanently replaced, and some by
the Union on the basis that the replacements were
temporary or not in the unit . Following the election, both
parties filed objections to the conduct of the election and
on February 18, 1965, the Union filed the first charge in
this case, alleging violations of Section 8(a)(1), (3), and (5);
the 8( a)(3) allegation was later administratively dismissed.
D. Respondent's Defenses to the 8(a)(5) Allegation
The complaint alleges that the Union requested
Respondent to bargain on November 10, 19, 26, 27, and
December 2, 1964, and that Respondent on November 10,
and thereafter, refused to recognize and bargain with the
Union for the Board-approved unit described in footnote 2
above. The General Counsel's case is based mainly on the
Joy Silk doctrine,10 that Respondent engaged in unlawful
conduct to a degree which demonstrates that its refusal to
bargain was not made in good faith . From the sequence of
events described above and my conclusions as to the
violative course of conduct followed by Respondent, it
seems there are ample grounds for doubting Respondent's
claim of a good-faith refusal to bargain.
Respondent asserts its claim on four grounds: (1) the
Union' s recognition request was ambiguous in its
description of the unit sought ; (2) "The Union never
requested recognition in a unit appropriate for purposes of
collective bargaining";" (3) the refusal to bargain was
based on both a genuine doubt of the appropriateness of
the unit and a genuine doubt of the Union ' s majority; and
(4) that in any case a bargaining order may not issue
because a valid election was held in the instant
representation case.
1. First defense
It may first be noted that Respondent's initial defense
seems to do violence to its second and third defenses, in
that if the request was ambiguous enough to encompass
Respondent 's putative unit , which included mailroom
employees , then Respondent 's second defense is untrue,
and there could not have been a genuine doubt of the
appropriateness of the unit as alleged in the third defense.
However, taking this first defense as a single entity, I have
determined that it is invalid for the following reasons:
a. The Union's request letter spells out the specific
categories encompassed immediately following the
general description of the mechanical department ,' L and is
not patently ambiguous.
10 Joy Silk Mills, Inc , 85 NLRB 1263
' 1 This quotation is a heading from Respondent's brief
i It should be noted that Respondent 's supervisor for the
Board - approved unit is "Mechanical Superintendent" Raoul
417
b. Through the many conversations D'Aquin had with
Saltarrelh and with employees in the unit , D'Aquin did not
attempt to clear up any ambiguity he may have felt existed
as to what unit the Union sought.
c. D'Aquin's actions belie that there was any ambiguity,
since all of his questioning and threats as described above
were directed specifically at the unit employees. D'Aquin
never spoke to any of the mailroom employees about the
Union prior to the strike, did not give them personal
interviews or include them in the November 20 and 30
speeches. On this latter point, his testimony was that he
met with "all the men" in 1 day, speaking of the
November 20 speeches, and that he spoke to the "whole
group," referring to the November 30 speech. Further the
RM petition which was prepared in New Orleans by
Thompson's personnel manager, Gross, and Respondent's
counsel, gives the unit employees as 35 which D'Aquin
said was misinserted for 55 and corrected by his
scratching out 35 and inserting a question mark. This
strikes me as an afterthought since if 55 should have been
inserted, it would have been much simpler to strike
through the 3 and insert a 5.
In sum, if there was any ambiguity concerning the unit
the Union sought, Respondent did not labor under it, nor
ever seek to clear it up . I conclude and find, that the
Union's request for recognition was sufficiently clear to
enable Respondent to understand it, and that certainly it
understood it on December 2, when the unit was spelled
out for D'Aquin, and the majority of the unit employees
struck, leaving only five or six people working.
2. Second defense
Respondent's second defense goes to its claim that the
unit found by the Regional Director and as approved by
the Board is inappropriate since it does not include
mailroom employees. Respondent recognizes that I am
bound by the Board' s ruling in the representation
proceeding, since this was the principal issue in that case
and Respondent had no new evidence to present.
I must therefore conclude and find that this second
defense is without merit.
3. Third defense
Respondent's third defense must be separated into two
parts; the doubt concerning the unit and the doubt
concerning majority.
As to unit , we have seen that Respondent understood
what group of employees the Union desired to represent
and that it was to this group that Respondent, principally
D'Aquin, pitched its violative antiunion campaign.
Respondent claims that it genuinely doubted that such a
unit was appropriate for bargaining purposes and this is a
reason why it refused to bargain.
I doubt that Respondent had such a good-faith belief,
since in each of the Thompson newspapers where the ITU
is organized, and at that time it was somewhere in the
neighborhood of eight or more, the units were basically the
same as that here sought by the Union. Secondly, the
Board has held in several cases, and most recently in H.
and W. Construction Company, Inc., 161 NLRB 852, that a
good-faith doubt as to the appropriateness of a unit is not a
Guidry who has nothing to do with the mailroom or its employees.
One would presume that a "Mechanical Superintendent" would
be in charge of a mechanical department
418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
defense to a charge of refusal to bargain in an appropriate
unit. Therefore as to this part of the third defense, I
conclude and find that it is without merit.
Concerning majority, the H. and W. Construction case,
cited above, sets forth the Board' s reasoning in the Aaron
Brothers'; and Serpa'4 cases and holds that the rule is that
the General Counsel in such 8 (a)(1) situations must
establish that Respondent in bad faith refused to recognize
and bargain with a union If an employer in good faith
withholds recognition because of a doubt of majority, even
though that doubt is based on nothing more than his
distrust of union authorization cards, he is entitled to an
election to resolve that doubt and the Board will not find
an 8(a)(5) violation.
In this case , Respondent did not unequivocally claim a
doubt of majority until D'Aquin's second letter to the
Union ($9 above ). Here, there is no claim concerning
authorization cards, except that D'Aquin asserts and
Saltarrelli denies that Saltarrelli referred to them and
refused to show them to D'Aquin. By the time the Union's
demand and request was made to Respondent , it was an
autonomous body with elected officers and a charter
granted to and signed by a majority of the unit employees,
who were dues - paying members. I cannot conceive that a
group of employees who were ready to strike, and in fact
absented themselves from work on the morning of the
strike to demonstrate their strength, would have hesitated
to show management their authorization cards or dues
books if that would have brought management to the
bargaining table. Moreover they offered several times to
demonstrate their majority by holding a quick election
under the auspices of a disinterested third party of
Respondent's choice, if that would convince Respondent
of the Union's majority. But Respondent clung to its
demand for a Board election.
In the obvious face of a demonstrated majority,
Respondent raises the spectre that this majority may not
have been an uncoerced and free majority and offered the
testimony of Marie Broussard and D'Aquin on this point.
Mrs. Broussard, a nonstriking unit employee did not
testify that any of the striking employees were coerced,
but testified that she was told during the union campaign
that if she was not for the Union, she was against it and
might be "squeezed out" and that she would earn more
money with a union in the plant. Mrs. Broussard testified
that she really did not think they were serious about the
Union until the strike and it was after the strike that she
reported her "coercion" to management . Thus, Mrs.
Broussard's "coercion" could not have led Respondent to
its question about an "uncoerced majority," since it did
not learn of her conversations until after the strike.
D'Aquin testified that he heard rumors from nonunit
employees about unit employees receiving threats of being
"squeezed out" but that he never attempted to check out
such stories . He claimed he heard rumors about Harold
Winston being hounded by the Union, but in the several
conversations he had with Winston he never mentioned
the topic. D'Aquin testified that on the strength of these
rumors which he did not try to verify, he had a "good-faith
doubt" that the Union had a majority or as he later phrased
it "an uncoerced majority."
In the face of a dues-paying membership constituting
the majority of the appropriate unit, such a claim borders
on the ridiculous but perhaps it helps to set the
perspective from which D'Aquin viewed things. Here we
have an individual who has been the primary protagonist
of the antiunion campaign , who has poured scorn on the
Union, questioned and threatened his employees and in
the face of a majority strike of dues-paying union
members, still cannot believe that they would voluntarily
pitch their tents in the Union 's camp . D'Aquin's pleas to
Melancon (¶26 above ), Herbert , and Bourgeois on the
morning of December 2 (1127 above), demonstrates this
again. D'Aquin simply could not accept that a majority of
his employees would choose to cast their lot with the
Union, and so sets out to show they must have been
coerced. However he has no proof that the union members
were coerced into joining . In fact most of them joined the
Union before he heard that a union was organizing and
before he started his violative campaign. Unverified rumor
will not substitute for proof. D'Aquin's disbelief of the
Union's majority is therefore based not on good faith but
on his refusal to meet and accept facts.
I conclude and find from the 8 (a)(1) violations found
above, and from the clear and demonstrated union
majority that Respondent used its claim of wanting a
Board election as a stalling tactic to gain further time in
which to undermine , if it could , the union majority and
divide the employees and the several refusals to recognize
the Union were in bad faith.
4. Fourth defense
The fourth defense is that a bargaining order may not
issue because a valid election was held. In determining
this issue , the Board's rulings state that coercion or
interference which occurred prior to the petition filing
date should not be considered, which in this case would
mean that I could not consider the pre-December 1, 8(a)(1)
violations.
This case differs from most cases, in that here,
Respondent filed the petition and not the Union, and it is
unknown whether the Union was aware that it could have
blocked the election by filing a charge. In any event
charges were not filed until after the election. Since the
Board has not established exceptions to this rule, I will
consider in determining the validity of the election only
those actions which took place on and after December 1.
a. Union Objections 4 and 7
Union Objection 4 is as follows:
The employer promised and advised employees in
the plant prior to the strike of December 2nd, to
employees and replacement employees or strike
breakers raises effective around the 1st of the year
and blamed the ITU for not putting such raises into
effect
The testimony of Joseph Melancon, which I have
credited (¶26 above) established that on December 2, he
was offered a raise as well as a promotion by D'Aquin after
the union troubles were over. Gilbert Lancon testified that
in his conversation with D'Aquin on December 1, D'Aquin
mentioned they would get raises around the end of the
year and after being asked why raises were not given now,
replied that his lawyer would not allow it, that it would be
an unfair labor practice. I have credited Lancon's version
of this conversation (¶23 above) which took place within
the hearing of others whom Lancon could not identify.
Other testimony concerning promises of pay raises
occurred prior to December 1, and will not be considered.
"Aaron Brothers CompanyofCaltfornia, 158 NLRB 1077 14 John N Serpa, 155 NLRB 99.
DAILY ADVERTISER
Union Objection 7 is as follows:
The employer conducted group meetings and
individually requested employees in other
departments of the plant, not eligible to vote in the
election, to use their influence with the strikers to
return to work, and to use their influence with the
strikers and other employees including replacement
employees to vote against the Union.
No testimony was presented concerning any such group
meetings at which such requests were allegedly made.
Union counsel urged that the pamphlets and literature
which were sent to all employees on its payroll by
Respondent, and which were a part of the appendix to the
Regional Director's Decision on Objections and
Challenges, could be construed as an appeal to these
employees to use their influence with the strikers to get
them to return. I have reviewed these pamphlets
designated as attachments 0 through DD of General
Counsel's Exhibit 2, and I cannot construe these as
management requests to employees to use their influence
with the strikers to return to work. They appear to me to
be campaign literature of the ordinary stripe that would
come within the free speech provisions and I will not
construe these pamphlets and leaflets in the manner
which union counsel urged.
Bearing on the objections in addition to the two
instances noted above are the following 8(a)(1) violations:
(1) The requests by D'Aquin of Dore and Benoit to
abandon the strike and return to work (¶28 above);
(2) Respondent's letter of December 3 to the employees in
derogation of the Union's majority bargaining status (¶30
above); and (3) the meeting of D'Aquin with the
negotiating committee and Saltarrelli on December 2. This
meeting (¶27 above) reaffirmed Respondent's prior
violative antiunion campaign and set the tone for all that
followed. Here D'Aquin faced with a clear demonstration
of the Union's majority in an appropriate unit, preaches
"legalism" and refused to accept what was before his
eyes. Even when the Union offered a quick election if it
would prove the point for him, he refused. Such a
demonstration coupled with his epithets about union
"winos" and Communist tactics, and his threat to enjoin
the strike, clearly convinced the committee and the
employees they reported to that Respondent would not
bargain in good faith and was attempting to stall
recognition and negotiations using the Board as a shield.
This demonstration in the light of the prior 8(a)(1) actions
by D'Aquin served to forcibly convince the union
adherents that Respondent, by D'Aquin, had utterly
rejected the principle of collective bargaining and sought
to evade its obligations under the Act.
The refusal to bargain by D'Aquin on December 2 is, I
conclude and find, a violation of Section 8(a)(5) and a
violation of Section 8(a)(1) which of itself is probably
sufficient to invalidate the later held election.
As to the fourth defense, I conclude and find that the
objections and the 8(a)(1) violations enumerated and in
particular D'Aquin's December 2 conduct and refusal to
recognize the Union created an atmosphere in which it
was impossible to hold a free and fair election and that no
valid election could be or was held. Therefore an
appropriate bargaining order may be entered.
In summary, I feel that Respondent had no intentions of
bargaining collectively with the Union, as shown by
Respondent's immediate commencement of 8(a)(1)
violations upon hearing rumors of union activity, and its
strong violative campaign. Since Respondent's initial
419
refusal was not based on a doubt of majority and its second
letter of refusal on November 19, and D'Aquin's oral
refusals on November 26 and 27 and December 2 were
moves dictated by its game of "labor relations
brinksmanship," not based on any true doubt of the
Union's majority, I conclude and find that Respondent
refused in bad faith to bargain with the Union on
November 13, 19, 26, and 27 and December 2, 1964, and
still persists in such refusal in violation of Section 8(a)(5)
and (1) of the Act.
I also conclude and find that the ensuing strike of
December 2, 1964, was then, and still is, an unfair labor
practice strike, caused and prolonged by Respondent's
unfair labor practices, and in particular by its refusal to
bargain on December 2, 1964. If D'Aquin had not refused
to recognize the Union and bargain at that time, the strike
would not have occurred as it did. There has been no
essential change in the character of the strike. Respondent
has not remedied its unfair labor practices and as far as I
can determine, the strike remains in its original status.
This finding I shall recommend means, with the
consequent remedy, that the unfair labor practice strikers
are entitled to their former positions upon their application
for reinstatement, at the expense of any employees
presently holding such positions. This raises serious
questions as to the status of presently working employees,
who were hired by management as "permanent
employees." Their "permanency" depends on whether the
strikers seek to return to work.
E. The Challenged Ballots
Since the Board has ordered findings in this area, and
recognizing the possibility that my resolutions as to the
validity of this election may not be accepted, I will give my
findings and conclusions on these remaining issues.
The parties stipulated that 22 strikers were challenged
by the Employer as either being not qualified or not
entitled to vote. No testimony was offered by Respondent
to support its challenges to the strikers, and I find these
challenges of no merit.
It was further stipulated that the Union challenged 34
employees on various grounds, the most frequent of which
was that the persons were hired as temporary employees,
and that others were part-time employees and/or students.
The Union called and questioned 17 of the 34 challenged
employees concerning the basis of their employment. One
of these witnesses, Hilda DuBois, was challenged on the
basis that she was a part-time employee. Her testimony
established that she was a regular part-time employee who
put in 15 hours or more each week. Since the unit
description does not exclude regular part-time employees
and she is a regular part-time employee, the challenge on
this basis is without merit The remaining 16 witnesses
were challenged basically on the premise that they were
temporary employees. Each of them testified they were
offered and accepted permanent employment and in most
instances were still employed in the same position. In this
sense of the challenges, none of these employees could be
considered as temporary. Therefore the challenges to
these individuals on this basis is without foundation. This
is not to ignore the point of permanency mentioned above.
An 18th individual, Patsy Menard, was called but since the
challenge to her ballot was based on her work category, to
which no exception had been taken earlier, and since the
language of the Board's direction was explicit as to the
categories to be considered, I did not allow the Union to
pursue its challenge. The Union did not offer testimony as
420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to any of the other challenged voters and thereby
abandoned such challenges.
In view of my decision that the election was invalid, and
the fact that there has been no resolution of the election
results due to the pendency of the challenges, I will not
recommend that the ballots be opened and counted.
Speculation as to whether the Union would win or lose the
election in this instance is idle, since I have determined
that a free and fair election could not have been held under
the circumstances. Therefore I recommend that the RM
petition be dismissed.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent, as set forth in section II,
above, and therein found to constitute unfair labor
practices in violation of Section 8(a)(1) and (5) of the Act,
occurring in connection with Respondent's business
operations as set forth in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
IV. THE REMEDY
Having found that Respondent engaged in the unfair
labor practices set forth above, it is recommended that it
cease and desist therefrom and take affirmative action
designed to effectuate the policies of the Act as follows:
Since Respondent on and after November 13, 1964, and
at all times since then, has refused and still refuses to
bargain with the Union as the representative of its
employees in an appropriate unit, it is recommended that
Respondent upon request bargain collectively with the
Union and in the event that an understanding is reached,
embody such understanding in a signed agreement.
I have also found that at the time of the hearing
Respondent's employees were still engaged in a strike
caused and prolonged by Respondent's unlawful refusal to
bargain, which strike began on December 2, 1964. The
striking employees were and are entitled to reinstatement
upon application, whether or not the positions which they
held have since been filled by replacements. Accordingly,
in order to effectuate the policies of the Act, it is
recommended that Respondent shall upon application of
these employees, offer them reinstatement to their former
or substantially equivalent positions, without prejudice to
their seniority or other rights or privileges, dismissing, if
necessary, any persons hired for or transferred to such
positions on or after December 2, 1964. It is further
recommended that Respondent make whole the
employees who went on strike on December 2, 1964, or
thereafter, for any loss of pay they may have suffered by
reason of Respondent's refusal, if any, to reinstate them,
by payment to each of them a sum equal to that which he
normally would earn as wages commencing immediately
after the date on which the employee applies for
reinstatement, to the date when Respondent offers such
employee reinstatement, less his net earnings, to which
shall be added interest at the rate of 6 percent in
accordance with the formula set forth in F. W. Woolworth
Company, 90 NLRB 289, and Ists Plumbing & Heating
Co., 138 NLRB 716.
Having found that Respondent has broadly infringed on
its employees' rights by its refusal to bargain and by its
other discriminatory practices, I am of the opinion that
there is a probability Respondent may commit other unfair
labor practices unless it is broadly enjoined from doing so.
Since a part of the purpose of the Act is to prevent the
commission of further unfair labor practices, it is
recommended that Respondent be placed under a broad
order to cease and desist from in any manner infringing
upon the rights guaranteed its employees by the Act.
On the basis of the foregoing findings and the entire
record in this matter, I make the following:
CONCLUSIONS OF LAW
1. Independent, Inc., d/b/a The Daily Advertiser, is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. All composing-press department employees,
including news, classified, and advertising proofreaders
employed at Respondent's Lafayette, Louisiana, plant,
excluding all other employees, mailroom employees, mail
inserters, maintenance men, truckdrivers, guards, and
supervisors as defined in the Act, constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. At all times since November 10, 1964, the Union has
been, and now is, the exclusive representative of the
employees in the said unit for the purposes of collective
bargaining within the meaning of Section 9(a) of the Act.
5. Respondent, by refusing to bargain with the Union on
March 13, 19, 26, 27 and December 2, 1964, and
thereafter, as the exclusive representative of its employees
in the appropriate unit, has engaged and is engaging in
unfair labor practices within the meaning of Sections
8(a)(5) and (1) and 2(6) and (7) of the Act.
6. Respondent has engaged in and is engaging in unfair
labor practices affecting commerce within the meaning of
Sections 8(a)(1) and 2(6) and (7) of the Act by:
(a) Interrogating its employees concerning their union
activities, desires, and feelings and the union activities,
desires, and feelings of other Respondent's employees.
(b) Soliciting employees to report on union activities.
(c) Promising employees wage increases and other
fringe benefit plans to encourage employees to refrain
from engaging in union activities.
(d) Informing employees that Respondent would not go
union under any circumstances.
(e) Threatening to discharge employees because of the
Union.
(f) Promising employees a raise and promotion to
induce them to refrain from union activities.
(g) Granting employees time off to induce them to
refrain from union activities.
(h) Interrogating employees as to the identity of union
leaders.
(i) Creating the impression it engaged in surveillance of
union activity by informing employees it had a good idea as
to who the union leaders were.
(j) Requesting an employee to report on the
whereabouts and activity of a union representative.
(k) Interrogating an employee as to the number of union
members and how many employees would support a
strike.
(1) Soliciting and urging employees to abandon their
strike in derogation of the Union's majority status.
(m) Soliciting and urging employees to desert the Union
and urge and persuade other employees to desert the
Union.
DAILY ADVERTISER
RECOMMENDED ORDER
On the basis of the foregoing findings of fact and
conclusions of law and upon the entire record in this case
considered as a whole, it is recommended that
Independent, Inc., d/b/a The Daily Advertiser of
Lafayette, Louisiana, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Interrogating employees about their union activities,
desires, and feelings and the union activities, desires, and
feelings of other Respondent's employees.
(b) Soliciting employees to report on union activities.
(c) Promising employees wage increases and other
fringe benefit plans to encourage employees to refrain
from engaging in union activities.
(d) Informing employees that Respondent would not go
union under any circumstances.
(e) Threatening to discharge employees because of the
Union.
(f) Promising employees raises and promotions to
induce them to refrain from union activities.
(g) Promising employees better working conditions to
induce them to refrain from union activities.
(h) Interrogating employees as to the identity of union
leaders.
(i) Creating the impression it engaged in surveillance of
union activity by informing employees it had a good idea
who the union leaders were.
0) Requesting an employee to report on the
whereabouts and activity of a union representative.
(k) Interrogating an employee as to the number of union
members and how many employees would support a
strike.
(1) Soliciting and urging employees to abandon their
strike in derogation of the Union's majority status.
(m) Soliciting and urging employees to desert the Union
and urge and persuade other employees to desert the
Union.
(n) Refusing to bargain collectively in good faith,
concerning rates of pay, hours of employment, and other
terms and conditions of employment, with Lafayette
Typographical Union, Local No. 832, International
Typographical Union, AFL-CIO, as the exclusive
representative of the employees in the appropriate unit
described in paragraph 3 of the section entitled
Conclusions of Law, above.
(o) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights to
self-organization, to form labor organizations, to join or
assist Lafayette Typographical Union, Local No. 832,
International Typographical Union, AFL-CIO, to bargain
collectively through representatives of their own choosing
and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Upon request, bargain collectively with the above-
named union as the exclusive representative of all
employees in the appropriate unit , and embody in a signed
agreement any understanding reached.
(b) Upon application, offer immediate and full
reinstatement to their former or substantially equivalent
positions, without prejudice to their seniority or other
rights and privileges, to all employees who went on strike
on December 2, 1964, or thereafter, dismissing if
necessary any persons hired for or transferred to any such
positions on and after December 2, 1964.
421
(c) Make whole all the employees referred to in
paragraph (b) above, in the manner set forth in the section
of this Decision entitled, "The Remedy."
(d) Notify the above employees if presently serving in
the Armed Forces of the United States of their right to full
reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training
and Service Act, as amended, after discharge from the
Armed Forces.
(e) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records relevant and necessary to determine compliance
with paragraphs (b), (c), and (d) above.
(f) Post in conspicuous places at its Lafayette,
Louisiana, place of business, including all places where
notices to employees are customarily posted, copies of the
attached notice marked "Appendix."15 Said notice shall
be signed by Richard D'Aquin, the general manager of
Respondent, since as has been found above, D'Aquin is
the primary person responsible for the actions of
Respondent in this matter. 16 Signed copies of such notice
shall also be mailed by Respondent to the last known
address of each of the employees on strike. Copies of said
notice will be furnished to Respondent by the Regional
Director for Region 15. The copies of the notice to be
posted shall be posted by Respondent upon receipt
thereof, and maintained by it for at least 60 consecutive
days. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
(g) Notify said Regional Director, in writing, within 20
days from the receipt of this Decision, what steps have
been taken to comply herewith.17
IT IS FURTHER RECOMMENDED that any alleged
violations not expressly found herein and representation
Case 15-RM-187 be dismissed.
15 In the event that this Recommended Order is adopted by the
Board, the words "a Decision and Order" shall be substituted for
the words "the Recommended Order of a Trial Examiner" in the
notice In the further event that the Board 's Order is enforced by
a decree of a United States Court of Appeals, the words "a Decree
of the United States Court of Appeals Enforcing an Order" shall
be substituted for the words "a Decision and Order."
18 See General Trackdrwers, Warehousemen and Helpers of
America, Local No. 5,161 NLRB 493
" In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read - "Notify the
Regional Director for Region 15, in writing, within 10 days from
the date of this Order, what steps Respondent has taken to
comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, " as amended, we hereby notify our
employees that:
Following a trial in which all parties had an opportunity
to present their evidence, a Trial Examiner of the National
Labor Relations Board has found that we violated the law
and has ordered us to post this notice and to abide by what
we say in this notice.
299-352 0-70-28
422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT ask you what you think about the
Union, whether you want the Union, which employees
belong to the Union, or who the union leaders are.
WE WILL NOT try to get you to abandon the Union
by offering you better jobs or more money.
WE WILL NOT threaten you that we will never go
union or bargain with the Union.
WE WILL NOT threaten to discharge any of our
employees because of the Union.
WE WILL NOT ask you what you or others intend to
do about union activities or about strikes.
WE WILL NOT try to make you think that we know
who the union leaders are.
WE WILL NOT attempt to discover the identity of
any union representative or have anyone report on
such representative's activities.
WE WILL NOT try to undermine the Union' s status
as majority representative by asking or urging you to
abandon the Union or the strike or try to get others to
desert the Union.
WE WILL NOT try to discourage you from joining
Lafayette Typographical Union Local No. 832,
International Typographical Union, AFL-CIO.
WE WILL bargain collectively, upon request, with
Lafayette Typographical Union Local No. 832,
International Typographical Union, AFL-CIO, as the
exclusive representative of all the employees in the
bargaining unit described below with respect to rates
of pay, wages, hours of employment, and other terms
and conditions of employment, and if an
understanding is reached, we will sign a contract
containing such understanding. The bargaining unit
is:
All composing-press department employees,
including news, classified, and advertising
proofreaders employed in our Lafayette,
Louisiana, plant, excluding all other employees,
mailroom employees, mail inserters, maintenance
men, truckdrivers, guards and supervisors as
defined in the Act.
WE WILL, upon application, offer all our employees
who went out on strike on and after December 2,
1964, immediate and full reinstatement to their
former jobs, with all of the seniority and other rights
and privileges they may have, and if necessary to give
them their jobs, we will dismiss any persons hired for
or transferred to such jobs on or after December 2,
1964.
WE WILL pay the strikers any pay they might lose if
we do not give them their jobs when they apply.
WE WILL respect your rights to join this Union or
any other union and to bargain collectively and to do
so without any interference, restraint, or coercion on
our part in anyway.
INDEPENDENT, INC., D/B/A
THE DAILY ADVERTISER
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, T6024 Federal
Building (Loyola), 701 Loyola Avenue, New Orleans,
Louisiana 70113, Telephone 527-6391.