Independent, Inc. v. NLRB

• Decision Date: 22 January 1969
• Docket Number: No. 24901.,24901.
• Citation: 406 F.2d 203
• Parties: INDEPENDENT, INC., d/b/a The Daily Advertiser, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

406 F.2d 203 (1969)

INDEPENDENT, INC., d/b/a The Daily Advertiser, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 24901.

United States Court of Appeals Fifth Circuit.

January 22, 1969.

Frederick S. Kullman, Kullman & Lang, New Orleans, La., for petitioner.

Marcel Mallet-Prevost, Asst. Gen. Counsel, Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Elliott Moore, Robert S. Hillman, Nan C. Bases, Attys., N. L. R. B., Washington, D. C., for respondent.

Before DYER and SIMPSON, Circuit Judges, and CABOT, District Judge.

SIMPSON, Circuit Judge:

This action is before the Court upon the petition of Independent, Incorporated, to review and set aside an order of the National Labor Relations Board issued against the company on June 14, 1967. The Board has cross-petitioned for enforcement of its order, 165 NLRB 53. The Board found that the company had engaged in various activities violative of Section 8(a) (1) of the National Labor Relations Act and ordered the company to cease these unfair labor practices. In addition, the Board found that the Union (International Typographical Union, AFL-CIO, Local No. 832) represented a majority of the employees in an appropriate bargaining unit and that the company's refusal to bargain with the Union was not in good faith, thus violating Section 8(a) (5) of the Act. The Board set aside the results of an election held February 10, 1965, which the Union lost and ordered the company to bargain with the Union upon request.

The company argues that there is not substantial evidence to justify the Board's finding of 8(a) (1) violations and that the Board acted improperly in setting aside the election. The company asserts that its refusal to bargain was in good faith and that in any event the Union's request to bargain was ambiguous as to unit description. Finally, the company believes that the Board selected an inappropriate bargaining unit.

We may easily dispose of the controversy over the unfair labor practices found. There is more than substantial evidence in the record to justify the Board's finding. Universal Camera v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). Without recounting all the details, it is sufficient to observe that the record shows that Richard D'Aquin, the manager of petitioner's newspaper (The Daily Advertiser of Lafayette, Louisiana), embarked upon an obvious course of anti-union conduct in October of 1964, about a month after the Union had begun an organizational drive.¹ There is testimony that D'Aquin promised several employes raises, guaranteed job security and improved fringe benefits if they would not cooperate with the Union. D'Aquin asked two employees to let him know if they heard any Union talk and generally seemed intent on discovering the identity and operations of the Union leaders. There was testimony indicating D'Aquin on several occasions demanded an NLRB election, but refused to commit the company to abide by the results. Several employees told of both direct and veiled threats to their livelihood if they continued to support the Union. D'Aquin reportedly warned several workers that he would enjoin any strike and that he had ready replacements for anyone who walked out.² There is abundant evidence in the record from which the Board could conclude that the company waged an aggressive campaign both to entice employees to side with the company and to frighten employees away from the blandishments of the Union.³ See Hendrix Mfg. Co. v. NLRB, supra; NLRB v. Dallas Concrete Co., 5 Cir. 1954, 212 F.2d 98, 100; NLRB v. Laney & Duke Storage Warehouse Co., 5 Cir. 1966, 369 F.2d 859, 864.

The company's only rebuttal to this evidence is that its witnesses were more worthy of belief than those of the Union. Aside from the fact that many of the Union's allegations were not refuted by company witnesses, it is a settled and by now a familiar principle that the decision of a trial examiner, affirmed by the Board, is not open to attack merely on grounds of allegedly erroneous credibility determinations. NLRB v. West Point Mfg. Co., 5 Cir. 1957, 245 F.2d 783; Martin Sprocket & Gear Company, Inc. v. NLRB, 5 Cir. 1964, 329 F.2d 417; Great Atlantic and Pacific Tea Company v. NLRB, 5 Cir. 1966, 354 F.2d 707. We enforce the Board's order directing petitioner to cease the unfair labor practices found.

We turn now to the more important controversy in this litigation: the propriety of the Board's action setting aside the election of February 10, 1965, and its order directing the petitioner to bargain with the Union upon request. Some history of the events leading to the current impasse in labor-management relations is necessary to put the election dispute in perspective. The Union began its organizational drive at petitioner's newspaper in September, 1964. All through October and early November, despite the anti-Union activities of D'Aquin and other supervisory personnel, the Union gained adherents. After obtaining a majority among the employees in the composing and press room departments at the Advertiser, the Union made a formal request to bargain in a letter to D'Aquin on November 10, 1964. D'Aquin responded by seeking legal advice and then agreed to meet with Union organizer Saltarelli at a Lafayette restaurant in late November. The Union representative again informed D'Aquin that a majority of the employees wished to be represented by the Union. D'Aquin asked for more time.

The employees became increasingly restless and voted to strike if D'Aquin again refused to bargain with them. On December 2, 1964, a contingent of employees approached D'Aquin a final time about recognition for the Union. They told D'Aquin that if he doubted their majority, they would submit to an election on the spot to be conducted by a neutral party, a priest. D'Aquin refused saying that he had petitioned the Board for an election and that was the only "legal" way. He expressed doubts that the Union represented a majority of the employees. In response, Saltarelli observed that only "five or six" regular employees were at work and that the rest were prepared to strike. Even presented with this graphic proof of Union strength, D'Aquin refused to accede to the Union's bargaining request. After this confrontation, twenty-three employees struck and the picket lines remained through the Board-conducted election on February 10, 1965.

The Board upheld the decision of its trial examiner to set aside the election. Before examining the Board's determination, it is appropriate to note that judicial review of Board election decisions is narrowly restricted. The Board has wide discretion, in keeping with its administrative expertise, in the conduct and supervision of representation elections. Neuhoff Bros. Packers, Inc. v. NLRB, 5 Cir. 1966, 362 F.2d 611; Pepperell Mfg. Co. v. NLRB, 403 F.2d 520, 5 Cir. 1968 November 13, 1968. Our review is necessarily limited to a determination of whether the Board reasonably exercised that discretion. Pepperell Mfg. Co. v. NLRB, supra. The Board is clearly in a better position than this Court to "decide whether the conduct charged reasonably tends to interfere with the voter's free choice."⁴ NLRB v. Laney & Duke Storage Warehouse Co., supra, 369 F.2d at 864; NLRB v. Dallas City Packing Co., 5 Cir. 1958, 251 F.2d 663.

Bearing the above principles in mind, we now examine the basis of the Board's conclusion. At the outset, it should be noted that sixty-three ballots were cast in this election, yet only six escaped challenge by either the Union or the company.⁵ While this is perhaps a good indication of the indecisiveness of the election, a large number of challenged ballots in itself does not invalidate an otherwise properly conducted election. The Board relies primarily on five incidents to justify its order setting the election aside. Only two (Union Objection No. 4) were specifically included by the Union in its formal objections to the election. Petitioner thus asserts that the Board is limited to an examination of formal objections alone in reviewing the conduct of the election. Clearly, such a rule would strip the Board and its regional representatives of all investigative power and would greatly hamper the Board in employing the expertise so often relied on by the parties and the courts. No restrictions of this nature can be found either in the Act or the Board's regulations, and the courts have agreed that the Board is not precluded from a consideration of matters other than those brought to its attention by the parties. NLRB v. Dal-Tex Optical Company, 5 Cir. 1962, 310 F.2d 58; NLRB v. Realist, Inc., 7 Cir. 1964, 328 F.2d 840, cert. den. 377 U.S. 994, 84 S.Ct. 1921, 12 L.Ed.2d 1046.

The five matters relied upon by the Board all occurred on or after December 1, 1964, the date Independent filed a petition for election. This comports with the rule formulated by the Board that it will consider only conduct occurring on or after the date of filing an election petition in determining whether an election should be set aside. Ideal Electric and Mfg. Co., 134 NLRB 1275 (1961).⁶ The evidence shows that on December 1, 1964, D'Aquin had a conversation with Gilbert Lancon, a leading employee in the Union's organization drive. He informed Lancon in effect that the Union campaign was largely responsible for a delay in wage increases and improved fringe benefits that the company had planned. On December 2, D'Aquin spoke with Joseph Melancon, another employee favoring the Union. Melancon testified that D'Aquin offered him a raise and a promotion as soon as the Union troubles were over. The last confrontation between the Union negotiating committee and D'Aquin also occurred on December 2, immediately prior to the strike. Although the negotiators pointed out to D'Aquin how few of the men had come to work and offered to submit to an immediate election conducted by a nonpartisan, D'Aquin refused to negotiate or agree to an...