The Daily Advertiser

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.