The Jackson Press, Inc.

THE JACKSON PRESS, INC. 897 in charge of the service department, the secretary to the labor rela- tions'director, stenographers on loan to the Atomic Energy Commis- sion, buyers, section heads, department heads, assistant Project man- agers, the Project manager, and all 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. 5. The Employer contends that no purpose would be served by hold- ing an election among these employees because the peak stage of its work on the Dana Project has been passed, and the number of em- ployees is now declining. From a maximum total of approximately 340 employees in August 1951, the number had been reduced to about 300 at the time of the hearing. The record also shows that the num- ber of employees will be further reduced within the next 6 months- There is no indication as to how long thereafter the remaining group, will continue to work. As a substantial number of these employee.u are now on duty and will continue to work for some time, we perceive no reason for depriving them of an opportunity to select a collective bargaining representative at this time. We shall, therefore, direct an immediate election. [Text of Direction of Election omitted from publication in this volume.] THE JACKSON PRESS, INC. and FRANKLIN UNION #4 AND CHICAGO PRINTING PRESSMEN, LOCAL #3. Case No. 13-CA-468. October 18,1951 Decision and Order On April 4, 1951, Trial Examiner Herman Marx issued his Inter- mediate Report in the above-entitled case, 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 af- firmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint, and recommended that these allegations be dismissed. Thereafter, the Respondent, the General Counsel, and the charging Unions filed exceptions to the Intermediate Report and supporting briefs, and the Respondent filed a reply brief. The Board 1 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 In- 'Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [ Members Houston , Reynolds, and Murdock]. 96 NLRB No. 132. 898-- DECISIONS, OF NATIONAL LABOR RELATIONS BOARD termediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner, but only to the extent that they are consistent with the Decision and Order herein. 1. The Trial Examiner found, and we agree, that-the Respondent violated Section 8 (a) (1) of the Act by the following conduct: (1) Foreman Aiani's interrogation of employee Bahno sometime between September 18, 1949, the date of the employees'- first union meeting, and October 19, 1949, the date of the strike, as to whether the latter had "any intentions of going along with the union." (2) Aiani's similar interrogation of employee Satterfield on the day after the first union meeting as to whether the latter would "vote for the union" if "they had an election -for the union." 2 , (3) President Thornton's statement to employee Tobias on the first or second day of the strike, "You don't belong upstairs and under no circumstances will you ' ever come back to work for me upstairs." (4) Thornton's similar statement to employee Geiger about 3 weeks after the strike began, "You ain't ever going back to work for me." 3 - (5) Thornton's statement about a month after the strike started, in the presence of, and pointing at, employee Geib and another,picket, "I wouldn't hive this riff raff in- my shop. I would close the doors first." 4 • (6) Thornton's statement, about 6 weeks' after the strike began, to a group of strikers, while in a restaurant, that he would not deal with Union Officials Hetzer and Finkel. (7) Thornton's statement about 3 weeks after the start of the strike to one of the pickets, in the presence of Tobias and Lambing and other pickets, that he would not'deal with Union Officials Hetzer and Finkel.5 In addition, the record discloses, as found by the Trial Examiner, that the Respondent engaged in the following further conduct which 12 An employer's interrogation of an employee concerning any aspect of union activity is a violation of Section 8 (a) (1)._ Standard-Coosa-Thatcher Company, 85 NLRB 1358. 'In their briefs , the General Counsel and the charging Unions contend that this state- ment to Geiger , and the similar one to Tobias , constituted discriminatory discharges of these employees in violation of Section 8 (a) (3), and that Geiger and Tobias are entitled to reinstatement and back pay on that basis. In view of our findings herein that all strikers (except Lambing), including Geiger and Tobias , are entitled to reinstatement and back pay on the basis of a later discriminatory refusal by the Respondent to reinstate them, and in view of the fact that Geiger and Tobias would not be entitled to back pay from these earlier dates even if we were to find this additional violation (Happ Brothers Com- pany, Inc., 90 NLRB 1513 ), we find it unnecessary to pass on this contention. 4 As found by the Trial Examiner , this statement, and the similar statements to Tobias and Geiger, carried the meaning that Thornton would not reemploy the strikers because they were engaged in the protected concerted activity of striking , and therefore violated Section 8 ( a) (1) of the Act. - 6 As found by the Trial Examiner , the implication of such statements - was that Thornton would not deal with these representatives of the employees , 'irrespective of the existence of a right of representation , and such remarks therefore violated Section 8 (a) (1). THE JACKSON PRESS, INC. 899 the Trial Examiner did not, but which we do, find to be violative, of Section 8 (a) (1) of the Act: 6 (1) Foreman Aiani's statement to employee Satterfield at the time of the latter's job transfer shortly before the strike, "You will have a steady job now if the Union don't mess US 7 up." s (2) Aiani's statement to Satterfield on another occasion prior to -the-strike, "I didn't think a young fellow like you who wanted-.to get ahead in printing, would let anybody talk you into joining the union." 9 (3) President Thornton's additional statements, about 6 weeks after the strike started, to the group of strikers in the restaurant to the effect that if the strikers returned to work, they would receive new benefits in the form of hospitalization, accident insurance, profit sharing, and a new building to work in.lo - The record also contains the following evidence of additional acts engaged in by the Respondent : - (1) Employee Bahno testified that during the first week of the strike Foreman Aiani solicited him to return to work. (2) Employee Kreuzer testified that 4 or 5 weeks after the strike started Aiani solicited him to return to work. (3) -Employee Bachman testified that'in January 1950, the third month of the strike, Aiani solicited him to return to work, and also, promised him more money if he would do so. . Aiani denied -that he had engaged in this conduct. For the reasons hereinafter stated, the Trial Examiner found it g The Trial Examiner found that about 2 or 3 weeks before the strike Foreman Aianl stated to employee Kreuzer that if he (Alan! ) "could get Mr. Stecki out of" the plant, he would ask Thornton to limit his duties as foreman' to the pressroom and, in such circum- stahces, "we could have a union of ourselves" ; but found it unnecessary to determine whetlier Aiaiii's statement violated Section 8 (a) (1) beo8use there was no allegation in the complaint relating to that specific statement . The absence of such an allegation does not preclude such a finding since 'the issue was fully litigated ( Olin . Industries, Inc., 86 NLRB 203), but we consider the statement too ambiguous and vague to support such a 'finding. I The Trial Examiner incorrectly quotes this word as "you " instead of "us." s The Trial Examiner did not find this statement to be a violation because it "could, have" had reference to the Union 's apprenticeship program requirements , and in any event was "too obscure."; In view of Aiani's previous unlawful interrogation of Satterfield as to whether he would "vote for'the union ," and the affirmative response thereto, and also in the light of the Respondent's other unlawful conduct, we find that this , statement was intended to, and did , convey a threat of reprisal for'Satterfield 's continued adherence to the Unions, snii • vvas therefore a violation of Section 8 (a) (1). B The Trial Ekammer does not pass on this statement . , As in the case of the previous statement to Satterfield, and against the same background , we find that this statement too was an implicit threat of reprisal in violation of Section 8 (a) (1) 10 The Trial Examiner appears to credit the testimony to this effect by witnesses for .the General Counsel, but makes no finding thereon - In any event, for the reasons stated ,by 'the Trial Examiner in crediting the testimony of these witnesses with ' respect to other statements ' made by Thornton at this time , we likewise credit their testimony that these statements were also made ; and in so' doing, we find that the testimony of Bahno, Husick, and also Geib, clearly shows that Thornton proposed that the strikers return to work , and was not, as found by the Trial Examiner, "somewhat obscure" on this point. Thornton's promises of benefit in return for the strikers-' abandonment of their strike iri 'suppoit of the Unions was a patent violation of Section 8 (a) (1). 'L. A. Lab- oratories, Inc., 88 NLRB 673, Star Beef Company, 92 NLRB 1018. - - ' ' • 900 DECISIONS OFI,NATIONAL LABOR RELATIONS BOARD unnecessary to resolve this,-issue' of credibility,; but we find .it_ neces- sary to do so. Bahno and Aiani gave conflicting testimony,. with respect to. other ' incidents and, we ,have, in accord with ; the .Trial Examiner,, credited Bahno. Kreuter and Aiani also gave conflicting testimony with respect. to other incidents and, we have, in, accord with,'the Trial Examiner, also .credited Kreuter. , In addition, we have adopted. the Trial Examiner's findings, -discrediting Aiani in all material respects 11 Bachmaii's credibility Js not otherwise in issue, and the incident to which-he testified gains corroborative support from the similar.incidents testified to by, Bahno and Kreuzer. Accordingly, and-upon the entire record, we discredit Aiani in this,connection also, and credit, the testimony of Bahno`,,Kreuz6r, and Bachman,that Aiani, during the course of the strike, solicited them-individually to return to-work. The Trial Examiner found is unnecessary to resolve the issue of credibility in this connection on the ground that, under the Roanoke Public Warehouse case,12 such solicitation was a violation of the Act only if the Respondent was, under a. statutory obligation,to bargain with the Unions, and he ,h:ad found that the Respondent did not un-. lawfully refuse to bargain prior to :the _strike;. • In the Roanoke, case, however, the Board predicated its finding, that the' employer's solicita- tion of striking employees to return to work was. not unlawful, not only on its conclusion that the employer, had not unlawfully refused to bargain prior thereto, but also on'the "absence of evidence that such solicitation was itself motivated by anti-union considerations." And unlike that case, the Respondent here, as we have found;above, committed many violations of Section 8 (a) (1) in the prestrike period and during'the strike. Such a course of unlawful conduct', was obviously designed to defeat the self-organization of its employees, and we so find. Against this, background, we find further that Aiani's solicitation of Bahno, Kreuzer, and Bachman to abandon the strike was also illegally motivated, and accordingly was, violative of Sec- tion 8 (a) (1) of the Act13 II. We disagree with' the Trial Examiner's ,finding that the Re- "The Trial Examiner specifically discredited Aiani with respect to most incidents to which he testified ; with respect to other incidents, he did not pass on Aiani's credibility because he found that the General Counsel had not affirmatively sustained his burden of proof. , - 12 72 NLRB 1281. 13 Although it is found hereinafter, contrary to the Trial Examiner, that the Respondent did unlawfully refuse-to bargain with the Unions prior to this solicitation;, we need not base- our findings here on the well-established principle that solicitation of individual strikers to return to work is unlawful where there is a duly designatedcollective bar- gaining representative ' with whom the employer is under a statutory duty to bargain exclusively. See e. g:, Sam'l Bingham'a -,Son Mfg. Co., 80, NLRB 1612 .- The Cin- cinnati Steed Castings Company, 86 NLRB,592. Cf. The Texas, Company,, 93 NLRB 1358. Because Aiani's,solicitation of Bachman was, accompanied by a promise of, benefit, it was, of course, a violation of Section 8 (a) (1) without regard to whether.it was illegally motivated. See footnote 10, supra. . - i THE JACKSON PRESS, INC. 901; spondent did not unlawfully refuse to bargain with the Unions in violation of Section 8 (a) (5) of the Act. On September 20 and 22, 1949, the Respondent refused the Unions' request for recognition as the collective bargaining representative of, the Respondent's "pressroom employees" on the ground that it questioned the Unions' majority, and in effect, took the position that it would not grant such recognition unless and until the Unions were certified as such representative by the Board. The unit for which the Unions requested recognition was an appropriate unit '14 and the Unions .did in fact represent a majority of the employees therein.15 After the Respondent's refusal to recognize the Unions on September 20, the Unions on the same day filed a representation petition with the Board. On October 19, however, a majority of the Respondent's pressroom employees went on strike for reasons hereinafter discussed, and the representation petition was withdrawn. As stated by the Trial Examiner, it is well settled that an employer, when faced with a demand for recognition by a union, may in good faith insist on a Board election as proof of the union's majority, but that an employer unlawfully refuses to bargain if its insistence on such an election is motivated, not by any bona fide doubt as to the Union's majority, but rather by a rejection of the collective bargaining principle or by a desire to gain time within which to undermine the Union 16 Here, as we have found above, the Respondent engaged in a course of unlawful conduct in violation of Section 8 (a) (1), which commenced on September 19,1949 '17 and continued immediately there- after in the prestrike period prior to October 19, and thereafter dur- ing the strike until about January 1950. Specifically, the Respondent, during this over-all period, committed 13 unfair labor practices, con- sisting of interrogations of its employees concerning their union ad- herence, threats of reprisal for such adherence, unqualified refusals to deal with union officials, refusals to ever reemploy strikers because they had struck, promises of benefits to strikers in return for abandon- 14 The appropriate unit, as found by the Trial Examiner, includes only pressmen and their assistants, and does not include cutters and folders In view of the fact that the Unions asserted that they were claiming representation for the employees on a displayed list of names consisting only of press employees, and also in view of the fact that cutters and folders work in the "bindery" and not in the pressroom proper, we find, contrary to the Trial Examiner, and in disagreement with our dissenting colleague, that the Unions did clearly define the appropriate unit in their request for recognition. In any event, in the light of our findings below as to the Respondent's bad faith, we are unable to conclude that any doubt it may have entertained as to the unit which the Unions sought to represent was in any way instrumental in the Respondent' s refusal to bargain. 15 Our dissenting colleague points to the fact that the Unions did not attempt to prove their majority , or suggest any method of proving it, aside from a Board election. The Unions' failure to do so, however, was simply a logical consequence of the Respondent's position that it would recognize the Unions only if they were certified by the Board, and an avoidance of an obviously futile gesture. 1e Artcraft Hosiery Company, 78 NLRB 333, and cases cited therein. " Aiani' s unlawful interrogation of Satterfield occurred on this date, which it should be noted was the -same day that the Unions first requested recognition ; the Respondent's refusal to accord recognition came - on the following day. 874176-52-vol. 96-58 9)2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing the strike, and solicitation of. individual employees to abandon the strike. In view of the timing of the Respondent's unlawful con- duct,18 and its nature and scope,19 the only reasonable inference which, in our opinion, can be drawn from such conduct is that the Respond- ent's prior insistence on a Board election as proof of the Unions' ma- jority was not motivated by any good faith doubt of majority, but rather by a desire to gain time within which to destroy, by unlawful means, any majority that the Unions might have. The fact, as found above, that such means were later used for that purpose is certainly persuasive evidence that such was the purpose to begin with. -The Trial Examiner found, in substance, that the evidence did not establish bad faith on the part of the Respondent in refusing to recog- nize the Unions because (a) the Respondent's unlawful conduct in the prestrike period was insufficient to show such bad faith, and (b) the Respondent's unlawful conduct during the strike was not a proper measure of its motivation at the time it refused to bargain because the strike provoked this' unlawful conduct. There might be some validity to the Trial Examiner's finding if the Respondent had only engaged in the prestrike unlawful conduct 720 or had only engaged in the strike period unlawful conduct.2' But in view of the fact that the Respondent engaged in unlawful conduct in the prestrike period, and its unlawful conduct in the strike period commenced on the first or second day of the strike '22 we think it clear that the Respondent's unfair labor practices during the strike were a continuation of its prestrike unfair labor practices so as to be motivated by the same fac- tors, and that the Respondent's unlawful conduct during both periods should therefore be appraised in determining the Respondent's mo- tive at the time of its refusal to bargain. And, as we have found above, an appraisal of this entire course of conduct leads us to con- clude that the Respondent, when it refused to bargain, was motivated by a desire to gain time within which to dissipate by unlawful means the very majority that it was questioning. We find, therefore, that on September 20 and 22, 1949, and at all times thereafter, the Respondent refused. to bargain collectively with the Unions as the exclusive representative of its employees in an ap- propriate unit, in violation of Section 8 (a) (5) of the Act.23 III. On October 10, 1949, 15 of the Respondent's pressroom em- ployees went out on strike, and by November 2, 1949, they had all 1s Cf. Artcraft Hosiery Company, supra. 19 The scope of the Respondent 's unlawful conduct must, of course , be measured against the fact that the unit for which the Unions requested recognition consisted , as found by the Trial Examiner , of only 23 employees. 20 Cf Roanoke Public Warehouse, supra. 21 Cf. Artcraft Hosiery Company, supra. a On this day Thornton refused ever to reemploy Tobias, because the latter had gone out on strike. 21 See N L. R. B v. Van Kleeck f Company, Inc., 189 F. 2d 516 (C. A.. 2), enforcing 88 NLRB 785, Joy Silk Mills, Inc. v. N. L. R. B., 185 F. 2d 732 (C. A., D. C.) enforcing , as modified 85 NLRB 1263 ; The Cuff man Lumber Company, Inc., 82 NLRB 296. THE JACKSON PRESS, INC. 903 been replaced. On March 31, 1950, the strikers made an unconditional application for reinstatement but on May 1, 1950, the Respondent refused to reinstate them .24 A basic cause of the strike, as found by the Trial Examiner, was the Respondent's refusal to recognize the Unions and bargain with them. We have found that this refusal was an unfair labor practice in viola- tion of Section 8 (a) (5) of the Act. The strike was, therefore, an unfair labor practice strike, and the strikers, as unfair labor practice strikers, were entitled to reinstatement upon application without re- gard to whether they had been replaced 25 Accordingly, we find that the Respondent's refusal to reemploy the strikers when they uncon- ditionally applied for reinstatement on March 31, 1950, was a viola- tion of Section 8 (a) (3) of the Act 26 The evidence shows, however, that during the course of the strike, and prior to March 31, 1950, striker Lambing poured sugar into the gasoline tank of a truck at the Respondent's loading dock27 The Re- spondent was aware of this conduct prior to the request for reinstate- ment. We find that by engaging in this "disorderly conduct" under local law, Lambing lost the protection which would otherwise be ac- corded to his strike activity, and we shall, therefore, dismiss the com- plaint insofar as it alleges that the Respondent's refusal to reinstate Lambing was a violation of Section 8 (a) (3), and not order his rein- statement or the payment to him of back pay.28 The Remedy We have found that the Respondent has refused to bargain with the Unions as the exclusive representative of its employees in an appropriate unit. We shall therefore order the Respondent to bargain, 24 As found by the Trial Examiner , there is no evidence that there were any vacancies in the plant at any time after November 2, 1949. We therefore construe the Respond- ent's reply, that the strikers' applications would "be accepted for [such] positions as are available," as a refusal to reinstate the strikers 25 The fact that the strike was also caused by economic reasons does not deprive the striking employees of their rights as unfair labor practice strikers . N. L. R. B. v. Stack- pole Carbon Co., 105 F. 2d 167 (C. A. 3), cert denied 308 U. S. 605. 20 Happ Brothers Company, Inc., supra. 27 According to records of the municipal court of Chicago , which were received into evi- dence, Lambing was convicted on February 6, 1950, by that court of "disorderly conduct" for doing so. Lambing denied that he "actually " put sugar in the tank of the truck, but did admit that he had a bag of sugar in his hand at the time in question On the basis of the record of conviction , and this admission , we do not credit his denial , and find that Lambing did engage in this conduct . See Nashville Corporation and Avco Manufac- turting Corporation, 94 NLRB 1567. 28 See Bradley, Washfountain Co , 89 NLRB 1662. There was testimony at the hearing that strikers Geiger, Husick , and Bachman were involved in a picket line altercation during the strike , at which they allegedly "tripped" and "shoved" one nonstriker, and "attempted to trip" another one According to records of the municipal court Of Chicago , which were received into evidence , charges based on this incident were dismissed on January 10, 1951, for want of prosecution We find it unneces- sary, however, to determine whether such conduct was engaged in because even if it were, it does not appear to have been an attempt to bar ingress to the plant by force, nor to have been such extreme misconduct as to render these employees unfit for further service, and to justify their exclusion from the reinstatement order. See Horn Manufacturing Com- pany, Inc., 89 NLRB 1177. Cf. Standard Oil Company of California , 91 NLRB 1540. 904 DECISIONS OF 'NATIONAL, LABOR RELATIONS BOARD upon request, with the Unions as- such exclusive 'representative with respect to rates of pay, wages, hours, and other terms and conditions of employment.29 We have also found that the strike which commenced on October 19, '1949, was an unfair labor practice strike, and that the Respondent therefore discriminatorily refused to reemploy the strikers, except for Lambing, when they unconditionally applied for reinstatement on March 31, 1950. We shall, therefore, order the Respondent to offer the employees listed in Appendix A hereof 30 immediate and full rein- statement to their former or substantially equivalent positions,31 dis- missing, if necessary, any employees hired since October 19, 1949, to replace them. If, after such dismissal, there are insufficient positions remaining for all these employees, the available positions shall be de- stiibuted among them, without discrimination because of their union membership, activity, or participation in the strike, following such system of seniority or other nondiscriminatory practice as heretofore has been applied in the conduct of the Respondent's business. Those strikers for whom no employment is immediately available after such distribution, shall be placed upon a preferential hiring list with pri- ority determined among them by such system of seniority or other non- discriminatory practice as heretofore has been applied in the conduct of the Respondent's business, and thereafter, in accordance with such list, shall be offered reinstatement as positions become available, and before other persons are hired for such work. Reinstatement, as provided herein, shall be without prejudice to the employees' seniority or other rights and privileges. As previously indicated, no reinstate- ment shall be ordered with respect to Lambing because of his miscon- duct during the strike. We shall also order the Respondent to reimburse these employees for-any loss of pay they may have suffered by reason of the Respond- ent's discrimination against them by payment to each of them of a sum of money equal to the amount which he normally would have earned as wages during the periods (a) from March 31, 1950, the date of their application for reinstatement'32 to the date of the Intermediate Report herein, and (b) from the date of our Decision and Order herein to the date of the Respondent's offer of reinstatement '13 or placement, 'IN. L. R. B. v. Franks Brothers Co., 321 U. S. 702. 80 It was stipulated at the hearing that the employees listed in Appendix A, and Lambing, all went on strike on October 19, 1949. 81 In accordance with our consistent interpretation of the term , the expression "former or substantially equivalent position " Is intended to mean "former position wherever possi- ble, -but if such a position is no longer in existence , then to a substantially equivalent posi- tion:" See The Chase National Bank of the City of New York, San Juan, Porto Rico Branch, 65 NLRB 827. e2Happ Brothers Company, Inc, supra. sa Where, as here, the Board, contrary to the Trial Examiner , orders reinstatement of employees , back pay is normally abated from the date of the Intermediate Report to the date of the Board's Decision and Order. Gibson County Electric Membership Corporation, 74 NLRB 1414. , , THE JACKSON PRESS, INC. 905 in accordance with the discussion above, on a preferential hiring list, less his net earnings during said periods.' Further, in accordance with our new policy, 85 we shall order that loss of pay,be computed on the basis of each separate calendar quarter or portion thereof during the aforesaid periods. The quarterly pe- riods, hereinafter called quarters, shall begin with the first day of January, April, July, and October. Loss of pay shall be determined by deducting from a sum equal to that which these employees would normally have earned for each such quarter or portion thereof, their respective net earnings, if any, in other employment during that pe- riod. Earnings in one particular quarter shall have no effect upon the back-pay liability for any other quarter. We shall also order the Respondent to make available to the Board, upon request, payroll and other records to facilitate the checking of the amount of back pay due.36 We have found that the Respondent has violated Section 8 (a) (1), (3), and (5) of the Act. In our opinion, the commission of unfair labor practices generally is reasonably to be anticipated from this unlawful conduct in the past. We shall therefore order the Respond- ent to cease and desist, not only from the unfair labor practices herein found, but also from in any other manner infringing upon the rights 'guaranteed in Section-7 of the Act.37 Upon the basis of the foregoing findings of fact, and upon the entire record, the Board makes the following additional : CONCLUSIONS OF LAW I 1. By refusing on September 20 and 22, 1949, and at all times there- after, to bargain collectively with Franklin Union #4 and Chicago Printing Pressmen, Local #3, as the exclusive representative of all its employees in the appropriate unit herein found, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of the employees listed in Appendix A, thereby discouraging mem- bership in the above-named Unions, the Respondent has engaged in as By "net earnings" Is meant earnings less expenses ,, such as for transportation, room, and board , incurred by an employee in connection with obtaining work and working else- where than for the Respondent, which would not have been incurred but for the unlawful discrimination and the consequent necessity of his seeking employment elsewhere. See Cros8ett Lumber Company, 8 NLRB 440. Monies received for work performed upon Federal, State, county, municipal , or other work-relief projects, shall be considered as earnings. See Republic Steel Corporation v. N. L. R. B., 311 U. S. 7. 31 F. W. Woolworth Company, 90 NLRB 289. 'IF. W. Woolworth Company, supra. 'IN. L. R. B. v. Express Publishing Co., 312 U. S. 426; May Department Stores v. rl.. L. R. B., 326 U. S. 376. 906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and is engaging in unfair labor practices within the meaning of Sec- tion 8 (a) (3) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. Order Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, The Jackson Press, Inc., Chicago, Illinois, its officers, agents, successors, and assigns shall : 1. Cease and desist from : (a) Interrogating its employees concerning their membership in, or adherence to, Franklin Union #4 or Chicago Printing Pressmen, Local #3, or any other labor organization, or threatening reprisals for such membership or adherence. (b) Refusing to reemploy its employees because they have engaged in a strike or other concerted activity protected by the Act, or threaten- ing to close its plant before it will reemploy employees engaging in such activity. (c) Soliciting its employees individually to abandon a strike or other concerted activity protected by the Act, or promising benefits for such abandonment. (d) Refusing to deal with officials of the above-named labor organ- izations. (e) Refusing to bargain collectively with the above-named labor organizations as -the, exclusive representative of its pressmen,-appren- tice pressmen, press assistants, press helpers, and apprentice press assistants, excluding supervisors as defined in the Act. (f) Discouraging membership in the above-named or any other labor organizations, by refusing to reinstate any of its employees. because of their union membership or activity, or in any other manner discriminating in regard to their hire or tenure of employment, or any term or condition of their employment. (g) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist the above-named or any other labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities, except to the extent that such rights may be affected by an agreement requiring member- ship in a labor organization as a condition of employment, as author- ized in Section 8 (a) (3) of the Act. THE JACKSON PRESS, INC. 907 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively- with Franklin Union #4 and Chicago Printing Pressmen, Local #3, as the exclusive repre- sentative of all its employees in the above-described unit with respect to rates of pay, wages, hours, and other terms and conditions of em- ployment, and, if an understanding is reached, embody such under- standing in a signed agreement. (b) " Offer the employees listed in Appendix A immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay they may have suffered by reason of the Respondent's discrimination against them, in the man- ner set forth in "The Remedy" section above. (c) Upon request, make available to the Board, or its agents, for examination and copying, all payroll records, social security payment records, time cards, personnel records and reports, and all other records necessary for a determination of the amounts of back pay due and the right of reinstatement under the terms of this Order. (d) Post at its plant in Chicago, Illinois, copies of the notice attached hereto and marked "Appendix A.35 Copies of said notice, to be furnished by the Regional Director for the Thirteenth Region, shall, after being duly signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof, and be maintained by it for sixty (60) consecutive days thereafter in con- spicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for the Thirteenth Region in writing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint, insofar as it alleges that the Respondent violated the Act in respects other than herein found, be, and it hereby is, dismissed. MEMBER REYNOLDS, dissenting in part only : I cannot agree with my colleagues that the Trial Examiner's de- termination that the Respondent did not refuse to bargain in good faith should be reversed. My colleagues find that such a refusal oc- curred on September 20 and 22, 1949. . At that time the Unions had not, clearly defined the unit in which they sought recognition and they did so at no time thereafter. Nor did the Unions attempt to prove 'm In the event this . Order •is enforced by a decree of a United States Court of Appeals, there shall be inserted before the words "A Decision and Order " the words "A Decree of the United States Court of Appeals Enforcing." 908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD their majority, or suggest any method of proving it aside from a Board election, when the Respondent challenged it. Under these circum- stances, I am constrained to agree with the Trial Examiner that Aiani's conduct before the strike is not sufficient to show that the Respondent's challenge of the Unions ' majority and its request for a hearing in the representation case were in bad faith and for the pur- pose of gaining time in which to defeat the Unions. It is noteworthy that there were no other violations of Section 8 (a) (1) before the strike. The later conduct, relied on by the majority to prove bad faith, occurred in a different context and under circumstances which do not, in my opinion, impinge on the Respondent' s earlier good faith challenge of the majority and the appropriate unit. I would therefore affirm the Trial Examiner's finding that the Re- spondent did not refuse to bargain and that the strike was not caused by the Respondent's unfair labor practices. I otherwise concur in the findings of the majority. Appendix A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order 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 : WE WILL NOT interrogate our employees concerning their mem- bership in, or adherence to, FRANKLIN UNION #4 or CHICAGO PRINTING PRESSMEN, LoCAL #3, or any other labor organization, or threaten reprisals for such membership or adherence. WE WILL NOT refuse to reemploy our employees because they have engaged in a strike or other concerted activity protected by the Act, or threaten to close our plant before we will reemploy employees engaging in such activity. WE WILL NOT solicit our employees individually to abandon a strike or other concerted activity protected by the Act, or promise benefits for such abandonment. WE WILL NOT refuse to deal with officials of the above-named labor organizations. WE WILL NOT refuse to bargain collectively with the above- named labor organizations as the exclusive representative of our pressmen, apprentice pressmen, press assistants , press helpers, and apprentice press assistants, excluding supervisors as defined in the Act. WE WILL NOT discourage membership in the above -named or any other labor organizations, by refusing to reinstate any of our employees because of their union membership or activity, or THE JACKSON PRESS, INC. 909 in any other manner discriminate in regard to their hire or tenure of employment, or any term or condition of their em- ployment. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organiza- tion, to form labor organizations, to join or assist the above- named organizations or any other labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of col- lective bargaining or other mutual aid or protection, or to re- frain from any or all of such activities, except to the extent that such rights may be affected by an agreement requiring member- ship in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. WE WILL upon request bargain collectively with Franklin Union #4 and Chicago Printing Pressmen, Local #3, as the exclusive representative of all our employees in the above-described unit with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. WE WILL offer the employees listed below immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay they may have suffered as a result of our discrimination against them : Edward Bahno Norman Geiger William Husick Morris Mendez John Teevens Sam Giambarberee Louis Amsbaugh William Bachman Arthur Geib Frank Kreuzer John O'Toole Emil Satterfield Edward Tobias Fred Wogtech All our employees are free to become or remain, or refrain from becoming or remaining, members of any labor organization, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. We will not discriminate in regard to hire or tenure of employment, or any term or condition of employment, against any employee because of membership in or activity on behalf of any labor organization. THE JACKsoN PREss, INC., Employer. bated-------------------- By-------------------- ---------- (Representative ) (Title) 910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Intermediate Report and Recommended Order STATEMENT OF THE CASE On February 14, 1950, Franklin Union #4 and Chicago Printing Pressmen, Local #3, filed a charge with the Regional Director for the Thirteenth Region of the National Labor Relations Board 1 against the Respondent, The Jackson Press, Inc. An amendment to the charge was filed on or about September 14,1950. Based upon the charge and the amendment thereof, the General Counsel of the Board, on November 6, 1950, issued a complaint alleging that the Respondent had engaged, and was engaging, in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1), 8 (a) (3), and 8 (a) (5) of the National Labor Relations Act (49 Stat. 440-457, as amended by 61 Stat. 136-163), referred to herein as the Act. Copies of the charge, amended charge, and complaint have been duly served upon the Respondent. With respect to the alleged unlawful conduct, the complaint, in essence, charges that on September 20, 1949, the Respondent, in violation of Section 8 (a) (1), attempted to bribe officials of the Unions, and on that date and thereafter, com- mitted other specified acts variously constituting interference with, or restraint and coercion of, its employees in the exercise of their statutory guarantees ; that on September 20, 1949, "and at all times thereafter," the Respondent refused, in violation of Section 8 (a) (1) and 8 (a) (5), to bargain collectively with the Unions as the exclusive "representative" of an appropriate unit of employees em- ployed in the Respondent's plant ; that on or about October 20, 1949, certain of the said employees engaged in a strike which "has continued to the present time" ; that the strike was caused and prolonged by the Respondent's unfair labor prac- tices ; and that on or about March 31, 1950, the striking employees, 15 in number, made application to the Respondent to return to work, but that the latter has failed-and refused to reinstate them, thus violating Section 8 (a) (1) and 8 (a) (3) of the Act. The Respondent filed an answer in which it denies the commission of the specific unfair labor practices ascribed to it and, in addition, asserts, in sure, that the unit described in the complaint is not appropriate for the purposes of collective bargaining; that it has insufficient information to determine whether the Unions represented a majority of the employees in the said unit and, there- fore, "was unable to grant recognition" to the Unions "without certification through the procedures established under the Act" ; that the strike was not caused or prolonged by unfair labor practices, but "was an attempt by the Unions to substitute economic coercion and duress" for the statutory procedures estab- lished "for the purpose of determining the question of representation" ; that the Respondent has not refused to reinstate the employees ; and that "many" of the strikers engaged in "unlawful, illegal, violent and disorderly conduct while picketing" the Respondent's premises. Pursuant to notice duly served upon the Respondent and the Unions, a hearing was held at Chicago, Illinois, on various dates between November 28 and Decem- 1 The National Labor Relations Board will be referred to herein as the Board ; and Franklin Union #4 and Chicago Printing Pressmen , Local #3, either as the Unions or, respectively, as Local 4 and Local 3, as appropriate occasions may require. References to the General Counsel include the attorney who appeared in his behalf at the hearing in this proceeding. THE JACKSON PRESS, INC. 911 her 13, 1950, before the undersigned, Herman Marx, duly designated as Trial Examiner by the Chief Trial Examiner. All parties were represented by counsel at the hearing, participated therein, and were afforded full opportunity to be heard, examine and cross-examine witnesses, adduce evidence, submit oral argu- ment, and file briefs. All parties waived oral argument but have filed briefs.' At the hearing, counsel for the Unions moved to strike paragraph 18 of the answer on the ground that it does not conform to the Board's Rules and Regula- tions. The paragraph alleges that the "Respondent . . . has other and varied defenses not ... specifically set forth" in the answer, "which will be shown at the trial of the cause herein." The motion was granted. On February 26, 1951, counsel for the Unions filed a motion dated February 22, 1951, applying for an order reopening the record for the purpose of offering in evidence certified copies of records of the Municipal Court of Chicago estab- lishing the dismissals of criminal informations previously filed in that court against four individuals formerly employed by the Respondent. An opportunity was afforded the General Counsel and the Respondent to oppose the motion and enter objections to the proffered exhibits. The Respondent filed written ob- jections to the motion and the admission of the exhibits. An order was entered on March 12, 1951, granting the motion, overruling the objections to the exhibits, and receiving them in evidence.' Upon the entire record and from my observation of the witnesses, I make the following ; FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The Jackson Press, Inc., an Illinois corporation, is engaged at 633 South Plymouth Court, Chicago, Illinois, in the business of commercial printing, includ- ing the production of catalogues, periodicals, and letterheads. The firm normally employed between 50 and 60 persons at its establishment. In the regular course of its business, the Respondent annually purchases goods at a value in excess of ,$100,000, of which more than 50 percent is shipped to the Company's plant from points outside the State of Illinois. During the regular course of its business, the firm annually sells goods at a value in excess of $500,000, of which more than 10 percent represents products shipped from the plant to points outside the State ,of Illinois. The evidence is undisputed, and I find, that the Respondent is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATIONS INVOLVED It was stipulated at the hearing, and I find, that Franklin Union #4 and -Chicago Printing Pressmen, Local #3, are labor organizations which admit to membership persons employed by the Respondent. 2 The Respondent has also submitted proposed findings. Many of the proposed findings are incorporated in substance , although differently phrased, in this Report. To the extent to which the substance of such proposed findings is set out below , the proposed findings are to be deemed adopted ; in all other respects , they are rejected. The municipal court records relate to Arthur Gelb , William Husick, William Bachman, and Norman Geiger. The Respondent contended at the hearing that they misconducted themselves during the strike and are therefore not entitled to reinstatement . Although the reinstatement question is disposed of below on other ,grounds, the proffered exhibits have some relevancy in the light of the evidence adduced by the Respondent. r 912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE ALLEGED UNFAIR LABOR PRACTICES A. Prefatory statement' The Respondent's establishment includes press, bindery, shipping, and com- posing sections . The active head of the firm is its president , John R. Thornton. Thornton owns a majority of the Company's stock and thus ultimately controls its affairs. His time is devoted primarily to securing orders for the concern. The Respondent's vice president and general manager is Bernard I. Stecki. He exercises supervision over the firm's production activities and has the function of hiring and discharging personnel. Approximately 25 percent of his time is spent in the production departments of the plant. The Respondent employs a super- visor named Bart Aiani. Although employed at an hourly rate and styled as pressroom foreman, subject to Stecki's supervision, he directs and supervises the day shift employees in all the production activities of the plant, exercising imme- diate supervision over pressmen and their assistants and issuing instructions to the foremen in charge of the other sections. The Unions involved in this proceeding are sister locals of the International Printing Pressmen and Assistants' Union of North America. In the Chicago area, Local 3 asserts jurisdiction over pressmen and apprentice pressmen, and Local 4 over press assistants and apprentice press assistants.' Both organiza- tions conduct their organizing campaigns jointly and, in most cases, engage jointly in bargaining negotiations with employers, particularly in negotiations leading to initial agreements (with newly organized plants). Peter Finkel is an organizer employed by Local 3. Charles Hetzer is a rep- resentative of the parent International and is employed as an organizer by Local 4. Both Finkel and Hetzer work jointly in organizing campaigns under- taken by the Unions. The president of Local 4 is James F. Doyle. B. The appropriate unit and the Unions' majority The Respondent's office and plant are located on the eleventh floor of a loft building.' The press, bindery, and shipping sections are situated in one large room, approximately 100 feet by 100 feet. The printing presses constituting the press department occupy roughly 60 to 70 percent of the space in the large room. The rest is devoted to the bindery and shipping operations. The Re- spondent has two cutting and three folding machines. These are located in the bindery. The press and bindery departments are segregated in the sense that both are located in different portions of the room and the presses and cutting and folding machines are not intermingled, but there are no walls or partitions separating the two departments, and they are immediately adjacent to each other.' 4 The findings in the prefatory statement are based respectively on relevant portions of the testimony of witnesses Thornton , Stecki, Aiani, Hetzer, and Finkel. 5 In union practice a press assistant is one who is serving the first half of a 4-year ap- prenticeship, and apprentice pressman is the title given to a person serving the second half. Upon completion of their term , press assistants leave Local 4 and, as apprentice pressman, become members of Local 3 (see testimony of James F. Doyle). 9 The description of the Respondent's premises set out in the findings is based upon an inspection I made pursuant to a stipulation of the parties . The results of the inspection are set out in the record. 4 One or two presses and some locker space located in the southeasterly corner of the loft are separated from a portion of the bindery by a wall which runs for a distance of 15 to 20 feet along one edge of the bindery. The wall extends for so short a distance and separates so little of the press department operations from the bindery that I do not regard it as an effective or substantial physical barrier between the press and bindery departments. THE JACKSON PRESS,' INC. 913,, The Respondent's production process may briefly be described as follows: Sometimes, depending on the nature of the job involved, the paper used is cut on one of the cutting machines before it is run off on a printing press. After the printing operation is completed, the paper is cut to appropriate size on a cutting machine. Then the paper is put through such folding, stitching, and wrapping operations as the nature of the job requires. Sometimes after folding or stitching processes are completed, the paper may be trimmed again on a cut- ting machine! The printing is done on a variety of presses by pressmen and their helpers ° . The General Counsel contends that these employees should constitute a separate unit at the plant for the purposes of collective bargaining, and thus proposes as an appropriate unit one consisting of "all journeymen and apprentice press- men and all press. assistants." The Respondent urges that the cutters and fold- ers should be added to the foregoing unit. - In addition, the Respondent em- ployed one Frank Podalski whom it terms a "press maintenance man and helper," and it asserts that Podalski's occupation should be included in the unit. The Board has held on a number of occasions "that printing pressmen and their assistants constitute a well defined group which follows established craft lines in the printing industry" (Gillette Safety Razor Co., 65 NLRB 1286), and it has accordingly held that such employees constitute an appropriate unit 10 The Respondent does not appear to dispute the general propriety, of such units, but it asserts that the larger unit it proposes is appropriate because of (1) the inter- relation of the printing, cutting, and folding operations, f2) the conduct of such processes in the same room and in areas adjacent to each other, and (3) an organizational and collective bargaining history indicating that Local 4 has both claimed jurisdiction over and bargained for cutters and folders as well as press assistants, where cutters and folders work in the room where the presses are located and the Bookbinders' and Paper Cutters' Union has not asserted jurisdiction over such employees. Elaborate discussion of the voluminous evidence bearing on the unit question would serve no useful purpose. It is enough to point out that, although Local 4 has asserted jurisdiction over and bargained for cutters and folders in some plants in the Chicago areal and has done so in cases where such employees performed their work in the same room with pressmen and helpers,12 such cir- cumstances are not decisive. More significantly, the crafts of 'pressmen and 8 See Thornton's testimony for a description of the Respondent's operations, 8In referring to assistants the Respondent uses the terms "press assistants" and "press helpers" synonymously. The terms are similarly used in the record. to Among other cases, see Rapsnwaiv Paper Company, 56 NLRB 1774; John Dickinson Schneider, 59 NLRB 1133; Rudolph Orthwine Corporation, 60 NLRB 447; W. F. Hall Printing Company, 63 NLRB 532. " These establishments appear, in the main, to be covered by a multiple-employer con- tract between Franklin Association, a trade organization, and Local 4. According to Doyle, approximately - 150 employers are affected by the contract, of ' which number about, 6 employ cutters and folders covered by the agreement. Another witness, Martin J. Marquis, president of one of the Chicago locals of the Bookbinders" and Paper Cutters' Union, estimated that soinething less than 10 of the Association's members employ cutters and folders covered by -the agreement. He asserted that Local 4 bargains for such employees for historical reasons which date back to the initial organization by Local 4 of plants which included a single cutter or folder in the pressroom ' However, Doyle's testimony indicates that one Chicago shop'(Carl Gorr) substantially similar to the Re- spondent's in the type of business and number of employees, including cutters and"folders, employs cutting and folding operators subject to the Franklin Association agreement. 'i See Doyle's testimony. The sense of Doyle's evidence is that in all but a few 'of the plants covered by the Franklin Association contract, cutters and folders do not per- form their work "immediately adjacent" to the press employees. 914 DECISIONS- OF, NATIONAL LABOR RELATIONS BOARD assistants, on the one hand, and. those of cutters and folders; on the other, are different and well defined ; the respective machines used, and, the training programs necessary to learn to operate them, are different ; printing pressmen are not equipped to perform ,the work of cutters and folders, nor are cutters and, folders equipped to operate, presses';' and there is no substantial evidence of any interchange in the Respondent's plant of duties among press, employees and those employed on the cutting and folding machines." Moreover, although not asserted at the Respondent's plant, the Bookbinders' and Paper Cutters,' Union claim a well-defi,ied jurisdiction over cutters and folders in the Chicago area (see testimony by Doyle and Marquis). Finally, the, Board has excluded cutters, from a unit of pressmen and-assistants, although the cutters worked in the same room with the press employees." Turning to Podalski, the weight of the credible evidence is that his duties were almost entirely those of a general repairman throughout the plant, performing such' work as building crates and maintaining. or repairing presses, floors, and ventilation and office equipment. On rare occa- sions, he substituted for an absent press helper" In short, Podalski was not a press assistant in any substantial sense,"and I do'not believe, upon the evidence presented, that it would be desirable to include the occupation of "press main tenance men and helper" in a unit of. press employees at the plant. Based upon the foregoing, I find and conclude that at all relevant times in the Respondent's plant all pressmen, apprentice pressmen, press assistants, press helpers, and apprentice press assistants, excluding supervisory employees as defined in the Act, constituted a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act." Twenty-three pressmen and helpers- were on the Respondent's payroll on September 20 and 22, 1949 (the dates on which the Respondent, as outlined below, refused to bargain with the Unions). - On those dates,, the Unions in combination represented. 16 " of the individuals in the unit found above to be appropriate. Accordingly I find that on September 20, 1949, the Unions were the duly designated agents of the unit for the purposes of collective bargaining." is See testimony 9f Doyle and Marquis with respect , to the different, characteristics of press and cutting and folding occupations. , 14 Johnson City Publishing Company, 81 NLRB 1341. But see H. L. Ruggles & Company, 58 NLRB 308 , where a cutter who worked not in the bindery but in the pressroom wag included in a unit with press employees upon petition of the Unions involved herein: See, also, Wilson Jones Company, 75 NLRB 706, and De Mays, Inc., 81 NLRB 1374, where the Board directed an election among press employees ,; to determine their wishes before establishing a separate unit for them. is Findings relating to Podalski's work are based on testimony" by press employees, including Bahno, Satterfield , and Bachman . Alani indicated that Podalski would sub- stitute for a helper "maybe three times a month." However, he could remember only one occasion (one afternoon ) during the fall of 1949 when Podalski worked as a helper, and he could recall none during the preceding summer. , 16 The Respondent contends that one Henry Piercy was employed as an apprentice pressman. The General Counsel contends that he worked as an errand boy and performed related duties. Piercy's status cannot affect the question whether the Unions had a majority of the unit found above. Hence, no findings need be made on the subject of Piercy's work. 17 See Hetzer's testimony and G C Exhibits 10-24 , inclusive, and G. C. Exhibit 28. 18 During the' course of the hearing, the Respondent's counsel intimated that he enter- tained some question about the right of 2 labor organizations to act as exclusive bar- gaining agents for a single unit. The Respondent's brief does not challenge the-right of, the Unions to act as such agents, nor does it question the fact that the organizations represent the 16 pressmen and helpers. , Under the circumstances , I do not, deem it neces- sary to outline the evidence and the authorities bearing on the Unions' right to represent the unit. THE JACKSON PRESS, INC. C. The Unions' request for recognition and the alleged bribe attempt 915 ' On September 18, 1949, substantially all of the Unions' members employed in the Respondent's plant attended a meeting with Finkel, Hetzer, and Doyle.. According to Hetzer, the meeting "authorized the union officials . . . to re- quest recognition (by the Respondent) as the collective bargaining represen- tative for all pressmen, press assistants and apprentice pressmen and apprentice press assistants." ,The next day the three union officials called on Thornton at his office. The Unions' representatives introduced themselves, and Finkel, who acted as spokes-, man, told Thornton that "the employees of the Jackson Press pressroom have designated us as their bargaining agent " 10 Thornton stated that he was busy at the moment because he had recently been out of the city, requested an opportunity to consult an attorney, and suggested that they meet with his counsel. The Unions' representatives agreed and left the plant Later, that day, after conferring with John H. Doesbuig, a Chicago at- torney (who represents the Respondent in this proceeding), 'Thornton called Doyle on the telephone, and it was agreed that the Respondent's representa- tives, including Doesburg, would meet with the Unions' officials for lunch on the following day. Doyle and Thornton agreed upon the lobby of the Trans- portation Building, which has a restaurant, as a convenient meeting place. At noon on September 20, Doesburg, Thornton, Stecki, Hetzer, Finkel, and Doyle met at the designated place Thornton was the last to arrive. _ The parties agreed that it would be inconvenient to lunch in the building restaurant be- cause it was too crowded, and Thornton stated that he had just come from a meeting with a customer and that his car was parked near the building in a prohibited zone, and he inquired where the others would like to have lunch. Doyle stated that he did not think it was necessary to take the time for lunch because the business at hand would not take long to discuss.20 Thornton said that it was necessary, that he move his car, and he proposed that he either put it in 4 parking lot or that,the group get into the car and "go somewhere." The six men entered the car and Thornton drove away. Hetzer sat next to Thornton, and Finkel sat at Hetzer's right. In the rear of the car, Doesburg sat behind Thornton, Stecki behind Finkel, and Doyle between Doesburg and Steeki. Thornton drove for about 5 minutes and parked the car in the vicinity of the Outer Drive. In the main, the conversation en route'was general in nature and substantially unrelated to the Unions' claim of representation. The General Counsel adduced evidence to the effect that shortly after the car was parked, Hetzer informed Thornton that the Unions had organized a majority of the pressroom employees and inquired whether the Respondent "was going to recognize us as the collective bargaining agent for those pressroom employees" (Hetzer's testimony) ; that Thornton asked Hetzer what proof he had of repre- 0 10 The respective versions of the union officials and Thornton of the initial meeting with the latter differ in details, but not significantly so. Thornton testified that his callers stated that they represented "a majority of our employees ," thus indicating that the types of employees represented were not mentioned In view of later events, it is unim- portant whether the Unions' representatives specified the types of employees they pur- ported to represent. In any event , I have adopted Finkel's version as reflecting the ,best recollection of the meeting with Thornton. 20 Doyle testified that he could not recall the remark attributed ' to him. Finkel agreed that Doyle "could have" made that statement and Hetzer asserted that it was "possible" that Doyle,made , the statement . Doesburg, Thornton , and Stecki testified that Doyle suggested that the parties dispense with lunch. I have concluded that the weight of the evidence supports . the assertion that Doyle made the suggestion that is attributed to him. S 916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sentation ; that Hetzer handed Thornton a list of names, inquiring of the latter if the individuals listed were the Respondent's pressroom employees; that Thorn- ton said he recognized. only a few of the names and handed the list to Stecki, who agreed that all -the employees on the list were employed in the pressroom ; and that Doesburg, after glancing at the list, in effect stated that the Unions would. have to establish their representative status by resorting to the Board's proce-, dures.21 According, to Hetzer and Doyle,'the latter then, asked Doesburg whether, the Respondent would consent to an election, and the attorney responded that it would do so. Finkel's testimony makes no reference to Doyle's alleged inquiry about a consent election. The Respondent's version 22 of the phases of the meeting ,described above- is, in substance, that after the car was parked, Doyle inquired whether the Respond- ent would "recognize" the Unions ; that Doesburg responded that "we don't' believe you represent a majority of the employees";_ that Doyle then stated, "I, guess that you mean that you want (us) to go to the Board and have an elec- tion"; that Doesburg's reply was that "that would be an orderly procedure" ; and that Doyle remarked that the Unions won and lost elections and that they would "go to the Board and let the chips fall where they may." All three of the Respondent's witnesses described the production of the list of employees in sub- stantially the same fashion as the General Counsel's witnesses, but asserted that the incident occurred after Doyle expressed an intention to-invoke the Board's machinery. - ' Some differences emerge from the respective versions of the request for recogni- tion. First, there is the question whether Doesburg acquiesced in Doyle's pro- posal for a consent election. Resolution of the problem is unnecessary at this point. Reference to the matter will be made below. Second, the question is presented whether the Unions stated thaVthey represented a majority of the Respondent's employees as distinguished from a majority of the pressroom em- ployees. Evidence which will be discussed below provides some warrant for a belief by the Respondent that a reference to the pressroom employees would- include others besides those who worked on the presses. For reasons Wyhich will- be discussed elsewhere, the production of the list of names 22, does not inevitably' lead to the conclusion that the Unions clearly conveyed to the Respondent the' scope of the unit they claimed to represent. But at this point whether the Unions stated that they represented the "pressroom employees" is of little moment, for on the same day the Unions wrote a letter to the Respondent stating that they, represented "a substantial majority of the employees in the pressroom," request ing recognition as "the sole and exclusive bargaining agency for the above named unit," and asking for a meeting "for the opening of negotiations for a collective bargaining agreement." The Respondent replied by letter. dated September 22,, 1949, in which it confirms "our conversation (apparently' in the automobile) of September 20" and expresses the belief "that a majority of our employees have (not) designated your organization as their bargaining agents." The weight of 21 The recital of the Unions' request for recognition, the exhibition of the, list of em- ployees' names, the conversation with Thornton and Stecki, and Doesburg's response'to the request, is based on testimony given by' Hetzer and Finkel. Doyle's version 'of these phases of the discussion was to the same general effect, but his testimony was somewhat` vague and gave evidence of a faulty recollection. 22 The account of the Respondent's version is based on testimony by Doesburg, Thorn-' ton, and Stecki. ' 28 The list ( G. C. Exhibit 4) which is erroneously captioned "DDay Shift" '(it includes' some night shift employees ) contains the names of all the pressmen and'assistants em_' ployed by the Respondent on September 20. It also includes ' Aiani's name;' although he' supervises the other production departments as well as'the'work of press ' employees. ' THE JACKSON PRESS, INC. 917 the evidence supports the conclusion that the Unions, during the automobile conference, asserted that they represented a majority of the pressroom employees, but whether or not they did on that occasion, their letter of September 20 makes express reference to "pressroom" employees, although the question still remains open whether the Respondent attached the same meaning to "pressroom" as the Unions. I find that on September 20 and 22, 1949, the Respondent refused to bargain with the Unions in response to requests by them that the Company recognize and bargain with them as the representative of the employees employed in the Respondent's pressroom. The discussion in the parked car lasted only a few minutes, and at its close Thornton began to drive back toward the Respondent's plant which is located near the Transportation Building. The evidence bearing on the events of the return journey contains marked conflicts. The three union officials testified that at a point near the plant, as the car drew to a stop or shortly thereafter, Thornton asked Hetzer how much money the International has, and Hetzer responded that it is worth about $13,000,000; that then Thornton, still talking to Hetzer, proposed that "you fellows take a couple of grand and forget about it." (Hetzer's testimony; Finkel and Doyle phrase the proposal in slightly different terms) ; and that Finkel, in substance, re- sponded that apparently Thornton had not dealt with "people like us before" (Finkel and Hetzer) and that the Unions wanted to deal with the matter in issue on a business basis. According to Finkel, the atmosphere in the car became less "friendly" than it previously had been, and Doyle testified that "the subject was dropped, more or less hastily." Hetzer stated at the hearing that he was "stunned" by the proposal, but Doyle asserted that, although he was surprised, he was not indignant because he did not "take it too seriously at the time." Doyle also stated that at the time Thornton made his suggestion to Hetzer, there was no conversation in progress in the rear of the car; Finkel expressed the belief that Thornton's tone of voice was such that "everybody in the car should have heard it"; and Hetzer asserted that at the time in question he did not hear any conversation in the rear and that his colloquy with Thornton "probably" was heard by everybody in the car. Finkel and Doyle agreed, under cross- examination, that the latter continued for some moments to talk to Doesburg on the sidewalk after they got out of the car. According to Doyle, the subject matter of the conversation was his appearance in an arbitration proceeding, and Doesburg complimented him for the manner in which-he handled his part in it. Doyle agreed that he shook hands with Doesburg before departure and asserted that they parted on "very friendly terms." Finkel also agreed, under cross- examination, that the parties shook hands and that they were "very friendly" in leaving. Hetzer could not recall any handshakes, and he stated that "there was no animosity shown in the conversation" upon departure. The Respondent's witnesses, in substance, denied that the Hetzer-Thornton- Finkel conversation occurred as described by the- union officials. They agreed that Hetzer and Thornton had some conversation about the size of the Inter- national, but asserted that this occurred during the return journey and substantially before the car reached the place where the occupants left the automobile. Thornton's version of that conversation follows : Mr. Hetzer was seated beside me and I said, "What is your official ca- pacity" to him. He replied that he was the organizer of the International. I said, "You mean, you go all over the country organizing things like this?" and he said, "Well, I travel around a lot." and I said, "Well, that must be a pretty big outfit," and he said, "Well, it is substantial." and I said, "What kind of money do you people have in your treasury?" and he said, "Thirteen 974176-52-vol. 96-59 918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD million dollars." and I said, "Boy, what chance has a small guy got against that?" and he says, "Well, you will find out maybe." That was the end of that. Doesburg and Stecki testified to substantially the same effect as Thornton. Like Finkel and Doyle, the Respondent's witnesses testified to handshaking among members of the group and to the cordiality of the atmosphere upon departure. It is elementary that the General Counsel must establish his contention by a preponderance of the evidence. A conclusion whether he has done so is not, of course, to be dictated by the mere number of witnesses each side may summon to support its version of the disputed issue. Upon an appraisal of all relevant factors, I am not convinced that the General Counsel has sustained his burden. It is true that Thornton's testimony with respect to other matters suggests some reasons to doubt his reliability as a witness and that Stecki gave some contra- dictory testimony related to his version of the Hetzer-Thornton conversation 24 But it is also true that Doyle's testimony reflected a faulty recollection of other phases of the discussion in the car and that there are some significantly vague and evasive elements in other testimony given by Hetzer and Finkel, thus reflect- ing upon their reliability as witnesses. Doesburg, a member of the Illinois Bar for many years, gave.a detailed version of the discussions in support of Thornton's denial.25 It cannot be assumed that the fact that Doesburg and Stecki were seated in the rear necessarily weakens their testimony. According to the General Counsel's witnesses, the car was not in motion at the time in question and the relevant conversation was loud enough to be heard in the rear. Moreover, Doesburg's opportunity to hear what went on was no worse than that of Doyle who supports his colleagues' version, al- though his testimony indicates a faulty recollection with respect to other details of the meeting ' Aside from the quality of the testimony concerning Thornton's alleged proposal, the evidence contains factors which militate against the General Counsel's con- tention. The admitted atmosphere of cordiality which prevailed when the parties separated is not quite consistent with the offer of a bribe?' Moreover, although many occasions arose during a period of almost 5 itionths, thereafter, when the matter might naturally have been referred to, no official of the Unions mentioned the alleged proposal to any representative of the Respondent. Thus, several weeks later, on October,12, Hetzer, Finkel, and Doesburg met at the Board's 24 On direct examination Stecki asserted that while Hetzer and Thornton were talking, Doesburg and Doyle were engaged in conversation. During his cross-examination he asserted that according to his recollection this was not the case. "We were more or less listening to the conversation in the front seat " 25 In appraising the evidence I have given consideration to the fact that Doesburg gave testimony in this proceeding, although a prominent participant in it as Respondent's counsel I have accorded no significance to the fact that he both testified as a witness and acted as counsel because before the commencement of the hearing, Goddess, Doesburg's associate, inquired of the attorney who appeared for the General Counsel whether he would have any objection to Doesburg's appearance in the role of a witness The General Counsel's representative stated that he had no objection to Doesburg's appearance as counsel and as a witness with respect to the alleged bribe offer Although the Unions' counsel was not, consulted, it is apparent that Doesburg appeared both as counsel and witness in reliance on the General Counsel's "acquiescence" In that procedure. 20 There is nothing in the evidence to support a conclusion that the passengers in the rear seat could not hear conversations in front at the time of the alleged bribe proposal. On the contrary, the testimony of Hetzer, Finkel, and Doyle indicates that discussions in the front could readily be heard in the rear. Moreover, although the street temperature at the time in question was 69 degrees, the evidence is to the effect that the car windows were closed (except perhaps for one or more ventilators). 27 Cf Pioneer Electric Company, 70 NLRB 771, 796. THE JACKSON PRESS, INC. 919 Chicago Regional Office to discuss the question of representation with a field examiner on the Board's staff. Although there was a heated exchange between the Unions' representatives and Doesburg, in which the former accused the Re- spondent of bad faith, neither Hetzer nor Finkel made any reference to the alleged bribe offer. Similarly, during the course of a strike (to be discussed later) which ensued at the Respondent's plant, neither Hetzer nor Finkel, who both spent much time near the picket line, made any reference to Thornton's alleged proposal, although the latter, according to the General, Counsel's evi- dence, engaged in provocative conduct by calling both officials and the strikers vituperative names. In fact, no mention of the alleged bribe offer was made to any representative of the Respondent until February 1950 (shortly before the charge in this proceeding was filed). On that occasion, Russell Packard, counsel for the Unions, called on Doesburg at the latter's office and in the pres- ence of Thornton and Stecki "read the statement of the charge that we had offered a bribe to the union representatives." Doesburg responded that the charge was "a contemptible lie," and Packard thereupon left with the remark that he would take the matter up again with his clients 28 True, there is evidence that Hetzer and Finkel related the alleged bribe offer, almost a month later, at a meeting attended by 14 of the Respondent's pressmen and assistants. The meeting (which will be discussed in greater detail below) came soon after a conference at the Board's Regional Office where the Respond- ent requested a hearing on the Unions' claim of representation., According to Finkel, it was the Unions' contention, as expressed at the employees' meeting, "to do something" about the Respondent's attitude toward the Unions' claims of representation, and the meeting resulted in a resolution to strike. Without dwelling on the details of the meeting here, it is enough to point out that I do not regard the somewhat belated report to the employees as giving the General Counsel's claim as much support as the factors discussed above tend to support the Respondent's contention that the bribe attempt was not made. Giving consideration to all the surrounding circumstances, I have reached the conclusion that the evidence fails to establish preponderantly that Thornton attempted to bribe the Unions' representatives." D. The strike and its underlying causes On October 19, 1949, a month after the conference in Thornton's car, a majority of the Respondent's pressroom employees went on strike. The General Counsel contends that the alleged bribe offer and a course of unlawful conduct by the Respondent were the causes of the strike. It has been concluded above that the evidence does not preponderantly establish that the bribe offer was made. An analysis of the other evidence bearing on the causes of the strike follows. 1. The conference to discuss the Unions' petition for representation After the meeting in Thornton's car, and on the same afternoon, the Unions filed with the Board a petition for representation, describing the appropriate unit claimed as "all journeymen and apprentice pressmen, and all press assist- ants and apprentice press assistants." Thereafter, on October 12, Hetzer, Finkel, Steeki, and Doesburg attended a conference at the Board's Chicago Regional Office with S. F Fagan, a field examiner attached to the staff of the General 28 Thornton, Stecki, and Doesburg testified to Packard' s visit. Their testimony is uncoutradicted. 29 In passing, it may be observed that I attach no sinister significance to the fact that Thornton parked the, car for the discussions instead of driving to a restaurant. As found above, it was Doyle who suggested that the parties dispense with lunch. 920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Counsel. The purpose of the meeting was to discuss the Unions ' claim of repre- sentation. The evidence bearing on the conference is confused ( particularly the testi- mony of Hetzer) and conflicting. Hetzer, Finkel, Stecki, and Doesburg testified to the events of the meeting. Without attempting to set out a detailed analysis of each participant's testimony, I find that the following events occurred at the conference.30 Hetzer stated that the question before the meeting was the setting of a date for an election. Doesburg responded that the Respondent wanted a hearing on the petition, asserting that there were a number of issues and specify- ing that the Company wished to be heard on the propriety of the Unions' joint representation of the proposed unit and the question of which of the employees would be entitled to vote.31 At that point the conference became somewhat heated, with an accusation by the Unions that the Respondent was "stalling." Fagan asked Doesburg if the Respondent was "making a formal request" for a hearing, and the'attorney responded that that was the case. Hetzer and Finkel thereupon stated that they had been told by another field examiner, Raymond A. Jacobson , that Doesburg's partner , J. Norman Goddess, had in- formed Jacobson that the Respondent would consent to an election 32 The Unions' representatives asserted that Doesburg's insistence upon a hearing was therefore 30 My findings respecting the events of the meeting are based , in the main, on Doesburg's testimony. Doesburg appeared to be the most forthright of the witnesses and to have the best recollection. Hetzer's version was somewhat confused and at points self-contradic- tory (particularly under cross-examination ). Finkel's testimony contains elements of vagueness . The sense of Hetzer's and Finkel's direct evidence was that Doesburg expressed willingness to consent to an election if held the latter part- of December or early in January and that they insisted on an earlier election "because of certain things that were occurring in the plant" (Hetzer ) and because the Unions assumed , according to Finkel, that busi- ness would become slack during the latter period (the evidence does not support this assumption ) and union members would'be laid off, thus eliminating 'the Unions' majority. However, it appears even from Hetzer's and Finkel's testimony that Doesburg raised certain issues relating to the unit claimed and the propriety of the Unions' joint representa- tion of the unit, and that Doesburg requested a hearing on the petition The union offigials' testimony respecting Doesburg's claims is somewhat vague, appeared to be given reluctantly, and was drawn from them primarily under cross-examination . Where the findings with respect to the conference conflict with the testimony of any of the witnesses, it is because I have not credited such evidence and have based the findings on other testimony. 31Fagan , who has since died, prepared a memorandum bearing the same date as the con- ference. After establishing a foundation for the admission of the memorandum as a record made in the "regular course" of business ( see testimony of Corinne G. Goggin), the General Counsel offered it, and it was received subject to Respondent's motion to strike, upon which decision was reserved for disposition in this Report. The motion is hereby denied upon the authority of 28 U. S. C. 1732. Contrary to the sense of Doesburg's testi- mony, the memorandum states that the Respondent "does not dispute" the appropriate- ness of the proposed unit. Fagan's record also states that the Respondent "does not desire to have an election at this time but would perhaps consent to one later," and quotes Doesburg as stating that he wished to be available "when the election is held" and that he expected to be in California all of November. The memorandum , it may be noted, does not support Finkel's and Hetzer's claim that Doesburg stated he would agree to a consent election if it were held the latter part of December or early in January. Be that as it may, although admissible as evidence , I cannot regard the memorandum as a full and reliable account of the conference. Unlike the testimony of all four witnesses, it makes no reference to Doesburg 's request for a hearing, nor does it refer to the issues relating to the composition of the unit and the propriety of the Unions' joint representation, matters which Doesburg concededly raised at the meeting. 32 There is no probative evidence that Goddess made such a commitment to Jacobson, for testimony by Hetzer and Finkel on that score is hearsay . Jacobson was not called as a witness, nor was his absence explained , although the General Counsel produced Fagan's memorandum and called another employee (Goggin ) on the General Counsel's staff. Jacob- son's absence may give rise to an inference that his testimony would not support Hetzer and Finkel (N. L. R. B . v. Ohio Calcium Co., 133 F. 2d 721 (C. A. 6) ). r .. THE JACKSON PRESS, INC. 921 contrary to Goddess' promise.88 Fagan then called Jacobson into the meeting. Hetzer pointed out to Jacobson that the latter had quoted Goddess as promising to consent to an election, but that Doesburg was requesting a hearing. Jacob- son inquired of Doesburg on what issues the Respondent wished to have a hearing. Doesburg replied, "There is the duplicity of the unions (their right to represent the unit jointly) ; there is who can vote; there is the description of the unit." The discussion then turned to a hearing date, and Jacobson, asserting that he had no control over such matters, estimated that a hearing could be held in 5 or 6 weeks. Jacobson left the meeting and Hetzer and Finkel went with him, returning after a short while. The union officials' purpose in leaving the meet- ing was to criticize Jacobson for having granted Doesburg a previous postpone- ment of the meeting and for telling them "that Goddess had led (Jacobson) to believe that there would be a consent election" (Hetzer). When Hetzer and Finkel returned they told Fagan to take the necessary steps to arrange a hearing. Before the meeting broke up, Finkel inquired of Doesburg whether it was possible to come to some agreement concerning the matters in issue . Doesburg expressed willingness to consult his client about a "stipulated election," but that it would be necessary to agree on a number of questions, including the composition of the unit. Doesburg pointed out that he would be away all of November and expressed the view that an election could be held "in the early part of December." 84 Hetzer remarked that Doesburg was "pushing us around" and was "trying to delay the proceeding," 85 and that "we will have a sidewalk fight" (apparently meaning a strike) 88 2. The events in the Respondent's plant The General Counsel presented evidence that between the employees' organi- zational meeting on September 18 and the date of the strike, the Respondent committed significant and substantial violations of Section 8 (a) (1). With a few exceptions to be hereafter noted, such evidence revolves about the alleged conduct of Bart Aiani, the shop foreman, as described by 7 of the Respondent'ss 23 press employees."' The General Counsel relies upon such evidence not only to establish violations of Section 8 (a) (1), but to support his thesis that the ,refusal to recognize the Unions upon their claim of a majority and the Respond- 13 In his direct testimony , Hetzer stated that at the meeting he informed the conferees that Doesburg had agreed during the automobile ride to consent to an election. How- ever, under cross-examination , he agreed that it was Goddess' alleged statement to Jacob- son, and not the automobile conference , which led him to expect a consent election, although at another point the witness testified that he based his expectation on the statements he attributed to both attorneys. Finkel's version of the automobile ride makes no reference to Doesburg's alleged commitment on that occasion, nor does his account of the conference with Fagan refer to any statement by Hetzer quoting Doesburg as having made such a promise. The sense of Finkel 's account of the meeting at the Board's office is that the Unions based their expectation of a consent election on Goddess' alleged state- ment to Jacobson . Based upon the record as a whole, I am unpersuaded that Doesburg promised , during the automobile discussions , to consent to an election. "The record contains an inadvertent transposition of pronouns at this point in Does- burg's testimony and erroneously attributes to Finkel Doesburg 's comment about his absence during November and the possibility of having an election in December. - 15 The record is in error at this point also . In Doesburg's testimony, it attributes the comment about= "trying to delay the proceeding" to Doesburg, instead of to _Hetzer. 18 Under cross-examination, Hetzer stated he could not recall whether lie had made any reference to a "sidewalk fight," but he agreed that he might "have made it." " The Respondent on September 22 and 29, 1949, wrote letters to its employees The Unions' brief suggests that the letters violate Section 8 (a) '(1). It is unnecessary to analyze the contents of the letters, for they clearly constitute comment protected by the provisions of Section 8 (c). .. _ , _ 922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ent's request for a hearing were but devices to gain time to enable the Company to dissipate the Unions' organizational strength in the plant, and that the Respondent's unfair labor practices were the root causes of the strike. An analysis of the relevant evidence follows. Edward A. Bahno was employed by the Respondent as a press assistant to William Hawes, a pressman. Hawes was in charge of two presses, spaced about 12 to 15 feet apart. While they were in. operation, Hawes watched one and Bahno the other ; when only one was running, Bahno assisted Hawes. Hawes received his instructions from Aiani ; Bahno received his from Hawes. Bahno joined one of the Unions and participated in the strike ; Hawes was not a member of either organization and did not go out on strike. Bahno testified that between the date of the employees' meeting on September 18 and the strike, Aiani frequently came, to his press and spoke to him about unionization. On the first occasion, according to Bahno, Alain! "more or less asked me whether I had any intentions of going along with the union," and Bahno made a response (not stated in terms by the witness), from which the foreman was unable to determine Bahho's sympathies. Bahno also asserted that "a day or so later," Aiani told him that it would be "wise" for him to work in "an open shop" ; that he could "get ahead faster and learn more things," with a better opportunity to learn the trade in "an open shop" ; and "that the union does nothing but take your dues and assessments." According to'Bahno, Aiani would frequently talk to him in similar vein, but no other official of the Respondent ever spoke to him about union matters. Aiani denied having any of the foregoing conversations. However, factors emerged from his testimony which reflect upon his reliability as a witness. Ac- cording to Aiani (as well as Thornton), soon after the Unions demanded recog- nition, Thornton instructed him to maintain a policy of strict neutrality "and not to ask any questions (of employees) or to say anything," and he promised Thornton that he would abide by the instructions, and would not "even talk to the fellows" except on matters of business. The sense of much of his testimony. is that he adhered rigidly to his promise. Yet, he admitted at other points that he initiated conversations with employees about the election, for example, telling Frank Kreuzer, a young helper, to make up his own mind about the elec- tion, for if Kreuzer "listened to anyone else and he made a wrong decision, he would be sorry for it later on." Such conduct is not wholly consistent with •Aiani's alleged promise to Thornton" and suggests that he was somewhat less inhibited in his discussions with employees about unionization of the plant than would appear from his testimony. Moreover, although denying at one point ,that he knew that there was going to be a strike until' it actually occurred at 4: 30 p. m. on October 19, it is apparent from other testimony that he gave that this is untrue. Thus, according to Aiani, shortly before noon on the day before the strike, Bahno (who had been given permission by Alani to take the after- noon off) asked the foreman for his pay check a day before it was due. Aiani testified that he explained why it would be difficult to get a check for Bahno, and that he then expressed some criticism of Bahno for not waiting an addi- tional day, telling the helper, "you can't go one day without a check, and you are thinking about getting into something you might have to go weeks without a check" (emphasis supplied). This remark not only reflects elements of self- 39 Aiani's explanation for approaching Kreuzer is that the latter was young and making excellent progress in his work , and the foreman "didn't want him to listen to a lot of talk on either side " However, asserting that he himself knew "very little" about the Unions, Aiani admitted that there was no evidence that Kreuzer was not making up his own mind. I do not regard Alani's explanation as a credible justification for his departure from his alleged promise to Thornton. THE JACKSON PRESS, INC. 923 contradiction in Aiani's testimony, but indicates that he had a substantially greater awareness of concerted activity among the men than he would admit in other portions of his evidence. For the reasons indicated, I do not regard as reliable Aiani's denial of the remarks attributed to him by Bahno. Hawes denied that he had ever observed Aiani talking to anyone about union- ization or the election, and, more particularly, that the foreman had spoken to Bahno about such matters.30 The implication of Hawes' testimony is that in- structions to Bahno came from him and that Aiani would have no occasion to speak directly to Bahno. However, Aiani admittedly spoke to other employees, including helpers, about the election. Moreover, Hawes' testimony had a quality of advocacy rather than of objectivity, and, in the face of my appraisal of Bahno, I am unable to accord significant weight to Hawes' testimony. Bahno's testimony impressed me as objective (he testified to other matters in addition to the Aiani conversations), and I credit his account of his con- versations with Aiani. Accordingly, I find that Aiani, sometime after the meeting of September 18, interrogated Bahno about his "intentions of going along with the union," and that the Respondent thereby violated Section 8 (a) (1) of the Act.90 Frank Kreuzer, a press helper employed on the night shift, was a union mem- her and joined in the strike. He testified that on one occasion after the meeting of September 18, Aiani approached him at his press and told him that it would take him between 10 and 15 years to become a pressman in a union shop, but that he could achieve such a position in the Respondent's plan in less time and earn as much as a union pressman . According to Kreuzer, Aiani told him 2 days later that he is "a good boy" and promised him an increase. Kreuzer subsequently (during the second week in October) was given an increase of 10 cents an hour. The General Counsel's brief asserts that Aiani's comparison of Kreuzer's opportunities in the Respondent's plan with those available to him in a union shop is violative of Section 8 (a) (1) because, it is claimed, the foreman's, rem arks contained "promises of benefit." " I credit Kreuzer's account of his conversation with Aiani. However, I do not agree that Aiani' s remarks were unlawful. They are privileged comment within the meaning of Section 8 (c). ` 33 In putting the relevant question to Hawes, Respondent's counsel quoted Bahno as testifying that Aiani spoke to him in Hawes' presence and "in your hearing." Bahno did not so testify. Bahno worked within sight of Hawes, but because of the distance between the presses and because of their noise, it is readily conceivable that Hawes would not be able to hear conversations between Aiani and Bahno. '° Aiani's other conversations with Bahno concerning the advantages of "an open shop" and the disadvantages of unionization, while reflecting antiunion animus, constituted protected comment within the meaning of Section 8 (c). 'i The complaint alleges that the Respondent offered and granted wage increases in order to induce employees to abandon union activity. There seemed to be some intimation by the General Counsel at the hearing that Kreuzer's increase was bottomed on an unlawful motive. The brief does not take that position. In any event, I am satisfied that Kreuzer's increase was given to him on a merit basis. There was credible evidence that the Re- spondent followed a policy of reviewing the wages of helpers every 6 months and, where warranted in its judgment, the Company granted increases to its helpers, although on occasion, as in Kreuzer's case, a helper's wages would be raised during the period between reviews. Doesburg also testified credibly that Thornton consulted him concerning the propriety of gi anting an increase to Kreuzer and others. Doesburg advised Thornton that increases in conformity with the Respondent's review policy would be proper. Husick's wages were also increased at about the same time Both Kreuzer and Husick had previously requested that their wages be raised. No reason appears why the Re- spondent should concentrate on Husick and Kreuzer and ignore the other employees if the purpose of-the two wage increases was to dilute the employees' interest in unionization (see testimony of Thornton, Stecki, Aiani, and Doesburg with respect to the review policy and the circumstances surrounding the increases). 924 DECISIONS OF NATIONAL.LABOR RELATIONS BOARD According to Kreuzer, about 2 or 3 weeks before the strike, Aiani stated that if he (Aiani) "could get Mr. Stecki out of" the plant, he would ask Thornton to limit his duties as foreman to the pressroom, and that, in such circumstances, "we would have a union of ourselves." Aiani denied that he ever suggested the formation of a "company union" or that lie-visualized such a contingency if he could force Stecki out of the plant. Kreuzer's testimony was given in restrained and objective fashion. On the other hand, I do not regard Aiani's denial as reliable. !According to his own testimony, as well as Kreuzer's, Aiani, who held the helper in high regard, appears to have taken a paternalistic interest both in Kreuzer's work and in the assistant's ap- proach to unionization. Aiani had been employed for many years by a firm whose interests the Respondent had purchased (his service with both concerns totaled approximately 25 years), whereas Stecki had been affiliated with the Respond- ent for about a year. Against such a background, and in the light of Aiani's paternalistic interest in Kreuzer, I do not consider Kreuzer's testimony im- plausible, and I credit it. However, it is unnecessary to determine whether Aiani's statement concerning "a union of ourselves" violated Section 8 (a) (1). The complaint, which outlines in detail the violation of that section with which the Respondent is charged, contains no appropriate allegation to support a sepa- rate finding that Aiani violated the Act by proposing the formation of a com- pany union. In any event, I have resolved the issue of credibility for such bearing as it may have upon an evaluation of the Respondent's course of conduct42 , Emil Satterfield, a press helper and union member who joined in the strike, testified that on the day after the employees' meeting of September 18, Aiani approached him at his press and asked him whether he would "vote for the union" if "they had an election for the union." According to Satterfield, he responded, "I think I would," and Aiani marked something on a piece of paper he held and walked away. Under cross-examination, Satterfield, who worked on the day shift, could not remember during what part of the day the incident occurred. On a later occasion, Aiani transferred Satterfield from a Vertical press on which he worked as "the extra man" to a Kelly press. He had been trying for some time to persuade Aiani to make the transfer. According to Satter- -field, Aiani, in making the transfer, told him, "You will have a steady job now if the union don't mess you up."" Satterfield also testified Alani remarked to him, "I didn't think a young " fellow like you who wanted to get ahead in printing, would let anybody talk you into joining the union." Aiani denied speaking to Satterfield about the latter's election preferences or making any reference to a union. The foreman asserted that when he transferred the helper to another press, he told the latter that he would have "a steady job" 42 The Respondent makes a point of the fact that Kreuzer worked on the night shift and Alani on the day shift, and the Respondent therefore suggests that Kreuzer ( as well as other night shift employees) did not have the conversations claimed. However, the night shift began at 4: 30 p. in., and Aiani usually was in the plant later than that hour and often did not leave before 5 p. in. Moreover, Aiani admits that he spoke to Kreuzer on a number of occasions. Presumably this was after Kreuzer's shift began. 41 The General Counsel asserts in his brief that the remarks attributed to Aiani at the time of the transfer were a threat of reprisal and violative of the Act I do not think that conclusion inevitably follows Conceivably, Alani's statement could have had refer- ence to the requirements of the Unions' apprenticeship program. In any event, I regard the context of Aiani's alleged statement as too obscure to warrant a conclusion that it violated the Act. " The record attributes the phrase "union fellow" instead of "young fellow" on Satter- field's direct examination. The record is in error as Satterfield actually used "young fellow" (see his cross-examination for the correct phrase). THE JACKSON PRESS, INC. 925 provided Norman Geiger, another employee, "made good" on the Vertical press (Geiger was transferred at the same time). The Respondent points out that Satterfield fixed September 19 as the date on which he claims that Aiani interrogated him about his' election preferences, that that was the date (toward noon, according to Hetzer) on which the Unions' representatives first approached Thornton, that they and Thornton spoke briefly and did not discuss an election, and that the foregoing circumstances render it improbable that Aiani would talk to Satterfield about an election that same day. However, Thornton testified to the effect that after his conversation with the Unions' representatives, he conferred with Doesburg at the latter's office, that the attorney explained the Board's election procedure to him, and that he then "went back to work." Stecki testified in similar vein. Thornton's testimony reveals that the possibility of an election at the plant became a focal point in his thinking immediately after his conference with Doesburg. It is true that the foreman testi- fied that he first heard of any union activity at the plant on September 20, after the meeting in the automobile, but such testimony was given in relation to Aiani's claim that he promised Thornton not to talk to the men about union matters, and I do not consider Aiani's testimony in that regard as reliable. The fact is that Aiani was day foreman of the entire shop and next to Stecki in the chain of managerial command, and it is not an implausible conclusion that he had some awareness on September 19, after Thornton and Stecki returned from Doesburg's office, of a subject which was focal in Thornton's thinking. The remarks attributed to Aiani by Satterfield follofv somewhat the paternal- istic approach he took in speaking to Balno and Kreuzer concerning union matters. In the light of the record as a whole, I do not consider it implausible that he interrogated Satterfield about his election preferences as early as Sep- tember 19, particularly as Satterfield impressed me as a credible witness. I credit Satterfield's version of his conversation with Aiani. Aiani's interrogation of Satterfield concerning the latter's voting intentions violated Section 8 (a) (1): William C. Husick was employed by the Respondent as a pressman 4' He was a union member and participated in the strike. Husick testified that Thornton approached him at his press "a few times" "concerning the union." The witness stated that the first approach occurred during the week following the employees' meeting of September 18, and that on that occasion Thornton asked him if,he "was going, to -join the union" and what he "thought of the union," to which Husick asserts he replied that he thought unionization "was a good thing." According to Husick, "there was another time he (Thornton) asked me if I belonged to the union," and "I told him he would see when we had the election." At, another point, Husick expressed the thought that Thornton approached him "just twice." He fixed the period of the second conversation as occurring "'just before the election was due.", Husick also testified to conversations relating to union membership with Aiani. Expressing the belief that the first occasion was on September 20, the day after the Unions' officials' visit to Thornton, Husick stated that while he was at a soda machine in the plant, Aiani inquired, "Why do you fellows want the union in here"; that he (Husick) replied, "I think it is a good thing. We will get better working conditions than we have now" ; and that the foreman asked, "why didn't we get our own shop union, get a bunch of fellows together and have a shop union and run it the way we wanted to and get Stecki out of the office." Q8 According to Husick, Hawes was present during Husick is described as a press helper in a stipulation into which the parties entered ( Trial Examiner 's Exhibit No. 1). The testimony establishes that he was a pressman. 4' The text of Husick's testimony suggests the possibility that Aiani's alleged remarks about the "shop union" occurred on some other occasion , but it is my impression that it was Husick's intendment that such remarks were part of the conversation at the soda machine. 926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the conversation. Husick also testified that on another occasion Aiani "asked me, like he always did,47 the time before, . . . why we wanted the union. . . . if I was a member" ; and that he (Husick) then showed the foreman his union card. Under cross-examination, Husick asserted that this last incident occurred at the side of Hawes' press, that Hawes at that point was in front of the press and saw what occurred. Husick stated that he- later discussed the incident with Hawes when the latter asked him "what it was all about." Husick expressed the belief that Norman Geiger, a helper, was also present when he showed Aiani the card. - Thornton denied that he had ever interrogated any employee concerning his union affiliation or interest. Aiani entered a similar denial, and also specifically denied engaging in the conversations described by Husick. Aiani agreed that Husick produced a card in his presence, but the foreman's version was that on one occasion he encountered Husick and Hawes engaged in conversation near a press ; that he (Aiani) stopped to ask Hawes "about the job he was running" ; that as Aiani came up to the two' pressmen, Husick pulled out a card to show Hawes, stating that it was a union card; that Husick also showed it to Aiani, but that the latter did not know what the card represented, aside from Husick's reference to it ; and that, because of Thornton's instructions to him, Aiani did not speak to Husick about the card or any union activity. Geiger's testimony was silent with respect to the card incident. Similarly, Hawes' testimony made no reference to that occasion, although he stated that he "never heard" Aiani "ever ask anyone any questions regarding union activity." Hawes also termed "a lie" Husick's statement that Aiani proposed the formation of "a shop union." Although I do not believe that various. significant facets of the testimony of Thornton, Hawes, and Aiani are reliable, I do not regard Husick as a credible witness. It may be noted that of the - numerous ) employees who testified, whether in support of contentions made by the General Counsel or those ad- vanced by the Respondent, Husick is the only one who claims that Thornton discussed union activity with him prior to the strike. The record suggests no reason why Thornton should have singled out Husick. I gathered the im- pression from Husick's demeanor, as well as the content of phases of his testi-. mony, that it was his purpose to point up the relationship between the Re- spondent's unfair labor practices and the strike rather than to give an objective version of what he had to say. In that regard, various phases of his testimony were touched with conclusional assumptions as to the management's attitude toward its employees, their union activities, and the status of the anticipated election. Another phase of his testimony which reflects upon his reliability as a wit- ness may be found in Husick's version of the precipitating circumstances of the strike. According to Husick (under cross-examination), all of the day shift union members were present while they were eating lunch in the plant on the day the strike began, and some discussion ensued among them about Thornton's alleged refusal to hold an election. Those present decided, Husick testified, that if Thornton "refused one election at the Labor Board, he'd refuse another one, and "there was quite a bit of discussion" of that subject. According to Husick, those present delegated Geiger "to tell Hetzer and Finkel we were going on strike that day." Husick's description of the manner in which Geiger was del- egated is not substantiated by other witnesses. According to Geiger, a "ma- jority" of the union members delegated him to talk to Hetzer and Finkel, but 47 Husick's intimation that Aiani "always" interrogated him about his union preferences does not accord with the rest of Husick's testimony, as the witness described only two such conversations with Aiani. As noted below, there is a conclusional pattern in Husick's, testimony which reflects upon his reliability as a witness. THE JACKSON PRESS, INC. 927 this was done individually by various employees during a 2-day period pre- ceding the strike. Geiger stated that his contact with Husick about the matter came about on the 'day before the visit to the Unions' representatives, when Husick told Geiger "he was getting disgusted " Geiger asserted that he spoke only to Sam Giambarberee and Morris Mendez during the lunch period in question. Giambarberee, after initially stating that 15 or 17 union members (that many would have to include a number who worked on the night shift) were present at the discussion during lunch, later changed his testimony and asserted that about 5, including Husick, were present when Geiger was delegated. Findings with respect to Husick's testimony cannot rest alone on my appraisal of Thornton, Aiani, and Hawes. The burden rests with the General Counsel to establish the facts supporting his position by a preponderance of credible testi- mony. I do not regard Husick as a reliable witness and therefore conclude that the credible evidence does not preponderantly support his version of his con- versations with Thornton and Aiani.48 Sam Giambarberee was employed by the Respondent as a pressman on the day shift for about a year preceding the strike. He was a union member and participated in the strike. Of the seven witnesses called by the General Counsel on the subject, Giambarberee gave the most extensive account of coercive and inhibiting statements attributed to Aiani. Giambarberee's testimony is difficult to summarize ; much of it has a conclusional trend ; incidents are telescoped so that it is difficult to determine if they occurred once or on different occasions ; and statements imputed to Alani in one context are altered in another, so that on occasion a statement attributed to Aiani, if credited, is violative of Section 8 (a) (1), and, where paraphrased by the witness elsewhere, may not be a viola- tion of the Act's The following summary of relevant phases of- his testimony is a synthesis of evidence given by the witness : A few days after the employees' meeting of September 18, Aiani, pointing out that Giambarberee had a "very nice" and "steady" job, asked the pressman why he wanted to join the Union.80 Giambarberee avoided giving Aiani a "direct answer." Aiani interrogated Giambarberee "repeatedly" about "what my in- tentions were, whether I was going to join the union or go along with the union or go along with the company." Such questioning would occur three or four times a day, "and he (Aiani) would keep me in a huddle" at his desk and at Giambarberee's press "for quite a long'time." Such conversations would some- times last 10 to 20 minutes and would occur when other employees were in the vicinity, as when they would come to Aiani's desk in connection with their work. On one occasion, Aiani told Giambarberee, "Nov look, Sam you are a Catholic and I am a Catholic. We should stick together ... We can't afford a union 48I have previously credited Kreuzer 's testimony attributing to Aiani a suggestion that an inside union be formed if the foreman could get Stecki out of the plant Husick quotes Aiani in similar language . Upon careful appraisal of Kreuzer , I concluded that he is an honest witness, but in the light of my appraisal of the quality of Husick's testi- mony , I , am not prepared to hold that Kreuzer's credited testimony corroborates Husick's, claim , particularly as, according to the sense of Husick's testimony, the relevant statement attributed by him to Aiani occurred on a different occasion from the one described by Kreuzer. 99 For example, in describing Alani's initial approach to him about unionization , Glam-• barberee quoted the foreman "You don't want to join the union. Why do you want to join the union fort You have a very nice job, steady." A few moments later in describ- ing the same statement, Giambarberee attributed the following to Aiani: "You don't want to join the union You have a very nice job here, it is steady. Why should you give your hard-earned wages and pay dues?" e° As pointed out in the preceding footnote , the interrogation as to why Giambarberee wanted to join the Union was omitted when the witness gave another version of the conversation 928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD just now because Mr. Thornton, had bought some new machinery and we really can't afford a union right now." 61 On another occasion, Thornton, Stecki, and Aiani walked through the pressroom. Aiani held a piece of paper in his hand. The three men "were in a little huddle and they were talking and looking at the different fellows in the shop." Thornton and Stecki left, and then Aiani went to each man in the pressroom in turn and spoke to him." As the foreman spoke to a man, he marked something on the paper (because of this circumstance, Giambarberee in his testimony intimated the conclusional assumption that Aiani was talking to the others about union matters). Giambarberee did not hear what was said by Aiani to the others. When Aiani came to Giambarberee, the foreman said, "Well, Sam, it looks like the union doesn't have a chance. . . . What do you think of the union." . . . "What do you think? Should you go with the union or stick with the company?" Giambarberee gave no "satis- factory answer to that question." The men were told by Aiani "continually, the minute we joined the union the doors would be locked on us and we would be out of a job." ' At some point after the Unions' demand for recognition, Aiani proposed (presumably to Giambarberee) that "we . . . have a company union, . . . we wouldn't have to pay our hard-earned money to the union." During a period shortly before the strike, Aiani "repeatedly" stated that he had an "idea" who the "instigators" (of organization) were and that such individuals would "soon be out of a job." 64 About 3 o'clock on the afternoon of the strike, Aiani offered Giambarberee an increase of 15 cents and then 25 cents per hour, provided the latter "would stay with the company," stating, "Okay, that is my last time. If you decide to go with the union when you leave here the doors will be locked on you," ",and "if you fellows go out on strike the doors will be locked on you." - , Aiani, in substance, denied having made any. of the remarks attributed to him by Giambarberee. The foreman gave an account of several conversations with the pressman which, in view of the findings set out below, it is unnecessary to recite. bi At another point Giambarberee, presumably referring to the same remarks, quotes Aiani : "You are a Catholic and I am a Catholic and we should stick together and not join the union " The General Counsel intimates in his brief ( but not clearly ) that such appeals to religious identification in' 'the manner ascribed to Aiani constitute "interference with the right of self-organization. If the General Counsel's intendment is that such remarks are unlawful , I do not agree . They are privileged comment within the meaning of Section 8 (c). 62 Under cross-examination, Giambarberee in substance , if not literally , retracted his statement that he saw Aiani interview every man in the pressroom. 68 The quoted statement is taken from Giambarberee 's cross-examination. During his direct examination , the witness said nothing about Aiani 's "continually" making such threats. In fact, in his main'recital, on direct examination, of Aiani's alleged statements,' Giambarberee made no reference to a threat that "the doors would be locked" on the employees It was only after the subject turned to what was said by various employees at a meeting held on October 15 (when a strike vote was taken ) that Giambarberee, in recount- ing what he told the meeting, for the first time recalled that Alani had said that "if you fellows decide to go with the union, . . . the doors would be locked" and that employees "would be out of a job." The context of Giambarberee's testimony at this point suggests that Aiani made this remark once and not "continually." 6* In this instance, too, Giambarberee attributed no such statements to Aiani during his direct examination . His first concrete quotation of Alani to the effect indicated occurred on redirect examination , and he ( Giambarberee ) did not state, until recross-examination, that the foreman "repeatedly" made such statements, and even then, almost immediately, the witness indicated that Aianl made the remark on only one occasion. 66 The testimony concerning the proffered increase is taken from Giambarberee's cross- examination. In this instance, too, Giambarberee did not, on direct examination , impute such a statement to Alani. The relevant incident was described by the witness , on direct examination, as occurring a few days before the strike, and in such testimony no reference was made to a threat that "the doors will be locked on you." THE JACKSON PRESS, INC. 929 • The foregoing outline of significant phases of Giambarberee's testimony would leave the impression that he gave an intelligible account of statements he ascribed to Aiani. Actually, his testimony was characterized by conclusional assump- tions, self-contradiction, and manifest exaggeration. First, it is incredible that Aiani spent so much time with Giambarberee "ham- mering" at him not to engage in union activity and interrogating him about his intention. No other witness testified to so extensive a course of conduct by Aiani. Giambarberee was not a moving spirit in the organizational movement on foot in the plant (the only employee really active in that regard appears to have been Geiger). The record suggests no reason why Giambarberee should have been singled out for such intensive treatment. His reference to the numerous occasions on which Aiani spoke to him about the relevant subject, and the length of time spent in such discussions, is manifestly exaggerated if, indeed, the fore= man ever discussed unionization with him. If the discussions were carried on on such a scale, it would appear that some other employee would have overheard some portion of the many conversations ; yet no other witness gave credible cor- roboration to Giambarberee.66 Second, exaggeration was present in other aspects of his testimony as well. Thus the witness testified that Aiani "repeatedly" engaged in certain acts of misconduct, although in other contexts it was apparent that Giambarberee' intended to describe one specific incident of the type involved. Another example may be found in the witness' statement that 15 or 17 union members were present at the lunch discussions (described above in connection with Husick's testimony) which led to Geiger's meeting with Hetzer and Finkel. That many members at lunch would have had to include employees on the .night shift, a manifest improbability (Giambarberee at later points in his testimony reduced the number present to 5). Third, although the matter was: apparently of importance to employees such as Geiger, there is no evidence that Giambar- beree ever quoted Aiani as "repeatedly" threatening discharge of "the instiga- tors." If anything, there is evidence to the contrary. Apparently basing his testimony on conversations with Giambarberee, Geiger testified that the former's understanding about Aiani's alleged threat did not come "from anybody direct" but from "the usual grapevine talk in the pressroom." Fourth, Giambarberee testified to much of Aiani's alleged misconduct during cross-examination, redi- rect, and recross-examination rather than on direct examination. In the light of Giambarberee's demeanor and the other infirmities in his testimony, I regard such a belated recollection as unreliable. Fifth, and perhaps most significantly, a basic contradiction emerged from the witness' testimony. Like others, Giam- barberee described a meeting of union members held on October 15.. The employ- ees present voted to strike. At least one important purpose of the testimony 56 The only witness who testified that he overheard any conversation between Aiani and Giambarberee was Geiger. Geiger, who worked on a press next to Giambarberee, testified that on the day before the strike he heard the foreman tell Giambarberee that "Jackson Press would close their doors before they would let the union in." Aiani denied making such a statement Giambarberee's testimony made no specific reference to the quoted remarks, but, as outlined above, he did testify to a conversation, occurring about an hour and a half before the strike, in which the foreman allegedly offered him an increase if he "would stay with the company," and accompanied the offer with a threat that "the doors will be locked on you" if the pressman decided "to go with the union." According to Giambarberee, his helper, Morris Mendez (who did not testify), was nearby and Geiger was at the next press. Yet Geiger did not testify that he heard this conversation, but testified to a threat of reprisal, allegedly occurring the day before, which Giambarberee did not specifically mention in his testimony. Aside from the difficulty of reconciling the testimony of Geiger and Giambarberee, it may be noted that I made an inspection of the Respondent's ;plant, pursuant to stipulation of the parties , and I entertain substantial doubt that, amid the noise of the pressroom in operation, a statement made in a normal tone of voice'at a press such as Giambarberee operated can be beard at the next press. Be that as, It may, I do not credit Geiger's relevant testimony. 930 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD describing the meeting was to establish that the Respondent's unfair labor prac- tices, caused the strike. In his description of the meeting, Giambarberee asserted that he informed those present of Aiani's offer of an increase as an inducement to refrain from union activity. However, during his cross-examination, Giambar- beree testified that this incident occurred about an hour and a half before the strike began on October 19. Finally, a revealing light is cast on Giambarberee's reliability by his testimony at one' point that he reported to the meeting of Sep- tember 18 that Aiani had asked him not to participate in union activity because both the foreman and he were Catholics. Other portions of Giambarberee's testimony would indicate that this incident, if it took place at all, occurred well after the meeting of September 18. . It is impossible to disentangle- that which may be true from that which is pal- pably unreliable in Giambarberee's version of his conversations with Alani, and I therefore cannot regard any significant portion of his evidence as worthy of credence. Anton Lambing was employed as a pressman on the night shift. He was a union member and participated in the strike. Lambing testified to several conversa- tions with Aiani concerning unionization and related matters at the plant. Lambing's version (on direct examination) of the initial conversation fol- lows : A day or two after the Unions' first approached Thornton, Aiani, at Lambing's press shortly after the latter began his shift, put his arm about the pressman's shoulder and asked him how he felt "about this union." Lambing hesitated to respond, and the foreman assured him that he did not "have to be afraid" and that he could speak freely. Lambing thereupon replied that he thought he would conform to. "what the majority of the fellows" would do. Aiani replied that "the majority are going to vote against the union," to which Lambing responded that he did not think that that. would be the case. Aiani, who was holding a pencil and paper, then "mentioned a number of names . . of fellows . . . not with the union," asserting that the paper contained "a list of the majority of the members" . . . that were against the union." Lambing stated that he "had reason to believe otherwise," whereupon Aiani asked "who the fellows we're that I thought were going to join the union," and Lambing asked whether "it was necessary .. : . to answer the question." Aiani "dropped the question" and proceeded to criticize unionization, relating - the unsatisfactory experience of members of his family who "had been in the union." Aiani also stated that Thornton's wife had been ill, that because of such illness Thornton did not "care whether he operated the shop or not," and that "if we would win the election he (Thornton) would certainly close down and we would all be out of jobs." 67 Several days later, according to Lambing, Aiani again spoke to him at the press, and the foreman stated "that he knew who the ringleaders were and that he would get rid of them and I ,had nothing to fear from them." Lambing also testified on direct examination to the gist of other conversations as follows : " Aiani told him that "we wouldn't be able to get away with . . . "During his cross-examination, Lambing "incidentally" recalled that in the course of this conversation, Aiani asked "us" which employees had been .at the first meeting 58Lambing was uncertain when these discussions occurred and it is difficult to deter- mine whether the remarks imputed to Aiani occurred on one or more occasions. In one context the testimony suggests that they took place on a single occasion, while from other contexts, it would appear that various statements attributed to Aiani were not made during one conversation The witness at first indicated 'that Aiani made the relevant remarks during the week following the employees' meeting of September 18 At other points in his testimony, Lambing expressed the view that at least some portion of Aiani's statements was made during a later period , some part of it after the employees ' meeting of October 15. . . THE JACKSON PRESS, INC. 931 bringing the union. organization into the shop" because Thornton "would close down the place if we should succeed in an election." Lambing asked Aiani what made the latter think an election would be held, and the foreman replied that he was. powerless to "prevent" it, inasmuch as the Union's representatives had "been to the Labor Board." "Besides," Aiani said, "There is no need for you fellows to get anxious. . . . Now I wouldn't be in a position to fire you if I wanted to." Lambing told Aiani (whether in the foregoing or in a different con- versation is not clear) "that the election has been delayed several times and, as I understand it now, the next time for the election to come up is late in Novem- ber, and I have heard . . . a slow season comes in about this time . . . if you should succeed in laying us off . . . you could replace us with men you know would vote against the union." Aiani entered a denial that be had had any conversations with Lambing during the period in question, also specifically denying that he had stated that he knew who the "ringleaders" were and would dispose of them ; and that be had told ,Lambing not to fear them. As in its challenge of Kreuzer's testimony, the Respondent adduced evidence showing that Aiani spent little time in the plant after the close of the day shift and, therefore, had little opportunity to talk to night shift employees. - As in the case of Husick -and Giambarberee, I am unable to credit any sig- nificant portion of Lambing's testimony. Aside from his demeanor which did not impress me as forthright, there are factors in his testimony which 'militate against its acceptance. His evidence reflects a conclusional pattern, as, for example, his ready assumption that an election would coincide with a:'slack season " which would afford the Respondent an opportunity, to get rid of runion adherents and'thus (according to Lambing), effectively preventthein from voting, D f" and his erroneous conclusion that an election had "been delayed severattimes i• and that the "next time for the election to come up is late in November." The line between statements forbidden to an employer by the Act and permissible comment is often shadow-thin and a conclusion must necessarily hinge upon reliable phrasing of what was said. Appropriate caution must thus-be used in appraising the testimony of a witn6s given to ready assumptions of what lies in another's mind or of translating rumor into fact. Significantly, in that regard, it may be noted that no other witness quoted Lambing as ascribing to Aiani statements that the foreman would discharge "ringleaders." In fact, as noted earlier, Geiger, who performed the function of shop steward and was a focus for union activity in the plant, did not attribute such information to Lambing but asserted that he based his knowledge about the subject on what Giambarberee had told him and that Giambarberee's information in turn had come from "the usual grapevine talk in the pressroom." Moreover, Lambing indicated that at the employees' meeting of October 1l he told the other union members of his conversation with Aiani. Yet, although much evidence was adduced as to grievances voiced by employees at the meeting, no witness who gave an account of the meeting quoted Lambing as recounting discussions with Aiani in which the latter threatened to discharge employees or that the plant would close." 59 According to Lambing, he had been told by other employees that in previous years a slow season'had begun about the end of November and men had been laid off. There is no evidence that such has been the case. so Hetzer quoted Lambing only as reporting that Mani had asked him how he would vote in the election. The union official also testified that "the men" reported that "some of them were told if the union came in . . . they were not going to be there . . . that some of them were going to be dismissed ." Hetzer did not testify that "the men" were "told" by Aiani that such `would be the case. Although Hetzer recounted what various employees, including Lambing, said , he did not quote anybody as imputing such threats directly to Aiani, and Hetzer's testimony is susceptible to the inference that what the 932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The record reflects other infirmities in Lambing's testimony, but it is necessary to refer to only one additional circumstance which reflects upon his reliability. The Respondent has a loading dock in an alley at the rear of the building housing its plant. Truck deliveries to the Respondent are made at the dock. Lambing was convicted in the Municipal Court of Chicago of pouring sugar into the gasoline tank of a truck (sugared gasoline may seriously damage an engine). Lambing denied that he "actually" put the sugar in the truck, asserting (with reluctant and evasive demeanor), "I did have a bag of sugar in my hand and P. police officer insisted I was attempting to put it into a gas tank." The General Counsel produced no evidence to explain what Lambing was doing with a bag of sugar at the time and place in question. Be that as it may, it must be assumed that Lambing was fairly tried and convicted. The information in the Municipal Court labels Lambing's offense "disorderly conduct," and he was fined only $25 and costs, but technical terminology and the size of the fine cannot'obscure the underlying character of Lambing's conduct. The incident in question was not the mere product of picket line exuberance, but connotes stealth and a deliberately formed purpose to damage or destroy the property of another. The conduct in question reflects on Lambing's character, particularly when measured by the evasive manner in which he testified about the incident. I cannot regard Lambing as a credible witness. Accordingly, I hold that the General Counsel has not established by preponderant evidence that Aiani made the statements attributed to him by Lambing 01 3. The strike meeting and the events immediately preceding the strike Several days after their unsuccessful conference at the Board's office, Hetzer and Finkel convened a meeting of the pressroom union members. They met on Saturday, October 15, with all members, except one, in attendance. According to Hetzer, the purpose of the meeting was to report to the membership,the re- sults of the Unions' efforts to secure recognition "as bargaining agent," and Finkel, who acted as chairman, stated that he informed those present "that things (at the conference at the Board's office) didn't go to our liking . . . and therefore we would have to do something about it," and that he asked for dis- cussion by the membership. According to the evidence, Hetzer also addressed the group, at least some of the employees expressed themselves, and a resolu- tion was passed that a strike be called at the plant. No date was fixed for the commencement of the strike, witnesses testified, because Hetzer and Finkel stated to the membership that they_would endeavor to adjust their differences with the Respondent, and that the setting of a strike date should therefore be left in their hands. members reported was "grapevine" information. Bahno indicated that employees at the meeting voiced "fear of our, jobs because there were rumors going around that there were going to be layoffs." Although Bahno's testimony relating to such "rumors" was stricken, it is appropriate to point out that he did not identify either Lambing or Giambarberee as ascribing threats of reprisals to Aiani. 61 The General Counsel's brief asserts that another employee , Joseph Drnek, was unlaw- fully interrogated by Aiani . There is no probative evidence that such was the case., Upon Drnek's testimony for the Respondent that Aiani had never discussed union matters with him, the General Counsel produced a signed statement given to one of his investigators by Drnek. Drnek asserts in the statement that Aland had asked him-how he would vote in an election and that upon being told that, Drnek would vote against unionization, the foreman had promised Drnek an increase . It is elementary that the prior self-contra- dictory statement, although it serves to impeach Drnek, is not probative evidence that Aiani had , in fact, interrogated him and promised him an increase. In passing, it may be noted that phases of Drnek's testimony are wholly unintelligible , and I am unable to accord any weight to Drnek's statement or his testimony. THE JACKSON PRESS, INC. 933 The General Counsel and the Unions place emphasis on the events of the meeting as support for their thesis that the Respondent's alleged unfair labor practices were at least partially responsible for the resolution to strike and for the strike itself. Necessarily no opposing interest was present at the meet- ing and, particularly as I do not regard some of those who described the events of the meeting as reliable witnesses, appropriate caution must be exercised in evaluating self-serving statements of motive for the strike. Much of the testimony dealing with the meeting was confused. Some wit- nesses did not touch upon events mentioned by others; some, such as Giambar- beree and Lambing, ascribed to themselves recitals of threats by Aiani, but were unsupported by other witnesses such as Hetzer, Finkel, and Bahno ; some testified to conclusional opinions voiced by others as to the reasons for given actions by the management; °R and some based erroneous inferences upon what was said. According to witnesses who attended the meeting, Finkel made some reference to the conference at the Board's office a few days earlier, but no definite conclu- sion can be drawn as to what Finkel actually told the employees about the mat- ter. Neither his testimony nor that of any other witness contains a substantially full description of what he told the men on the sutject, although Finkel asserted (and Hetzer intimated) that the events of the conference were fully reported to the men. Finkel denied under cross-examination that he told the membership that the Respondent refused to "participate" in an election. Yet of the five employees who referred in their testimony to the officials' report, one testified that the membership was told that "there was no more chance .. . about get- ting an election," and Thornton had "cancelled" one election and had "refused to allow" or "postponed" an election on a second occasion (Giambarberee) ; another asserted that he had learned from either Finkel or Hetzer at a meeting (evidently the one held on October 15) that an election had "been delayed a couple of times" and that a date had been set for "late in November" (Lambing) ; and Geiger, who was the most active of the employees in calling the strike, asserted that "we were told that Bart (Aiani) wanted to hold an election at the end of the year, or at the beginning of the following year," and that, among "the main things that were discussed that made the men disgusted" was "the stalling we were getting from the Board and the firm." ° According to Hetzer, the em- ployees were told "that the company did not consent to an election, and we didn't know when an election was going to be held, if ever." Hetzer denied that any explanation was made "that an election would be held at which time (the em- ployees) would have an opportunity to vote," asserting "we couldn't tell them there was going to be an election held" because "we didn't know." However, Finkel testified, "We explained to them that it (an election) would be held either . . . the latter part of December or the first part of January." The record con- tains no evidence that the employees were told that the Respondent had raised certain questions at the Regional Office upon which the Company had requested a hearing and that the Unions' representatives had in effect requested Fagan to set the hearing machinery in motion. 62 Thus, for example, Finkel quoted Geiger as stating his transfer from one press to an- other was a demotion because Aiani "knew that he (Geiger) was the instigator . ..and therefore . . . was 'doing everything he (Aiani) could to make it miserable for him." There is no substantial evidence that the transter was a demotion, nor is there any credible evidence that Aiani knew that Geiger "was the instigator" Finkel (stating his memory was hazy) also quoted another employee (Tobias) as voicing the feeling that he had been "framed" by Alani into doing some poor work (there is no evidence that the incident had In fact occurred). 83 Husick, who testified he arrived at the meeting late, could not remember whether any reference was made to the conference at the Board's office or to an election. Balino ex- pressed the belief that Finkel spoke about such matters, but testified that he could not recall what Finkel had said. 974176-52-vol. 96-60 934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD According to some descriptions of the meeting, various employees reported that they had been interrogated by Aiani concerning their union activity or their election preferences (see testimony by Hetzer, Husick, Giambarberee, Finkel, -Lambing, and Bahno). Bahno also testified that those present reported that Aiani "was going to each one individually and talking to him," but the witness did not state what the employees quoted Aiani as talking to them about, and it cannot be determined from Bahno's testimony whether such employees attributed -to Aiani conduct violative of the Act. Much of the evidence bearing on reports -by those present has a conclusional cast, and some of it I am unable to credit. -Thus, Giambarberee asserted that he informed the meeting of Aiani's offer to increase his wages if he refrained from union activity, although in another con- text he testified that the offer was made to him some 4 days after the meeting and about an hour and a half before the strike began. According to Giam,bar- beree, he also told the meeting that Aiani had made threats of a lockout, "if you fellows decide to go with the union." No other witness quoted Giamhar- beree as reporting anything at the meeting with respect to Aiaiii's alleged offer of an increase or threat of a lockout. Others (Hetzer and Husick) quoted Giambarberee as reporting Aiani's suggestion that Giambarberee refrain from union activity because of their common religious affiliation. Hetzer also tes- tified that Giambarberee reported that he "was asked" how he would vote in an :election. Similarly, although Lambing testified to extensive conversations with Aiani, including threats by the foreman of discharge for union activity and that he would "get rid of" the "ringleaders," and indicated (but not clearly) that he (Lambing) reported such conversations at the meeting, the only specific state- ment ascribed to him by another witness (Hetzer) is that Lambing reported "that he was approached and was asked how he was going to vote." According to Hetzer, also, Geiger was among these who stated at the meeting that Aiani was "going around and asking all of the boys how they would vote," although at no point in his testimony did Geiger impute such a statement to himself, nor (lid Geiger in his extensive testimony about plant conditions he considered un- satisfactory express any personal knowledge of unlawful interrogation by 'Aiani. Although Hetzer broadly asserted that employees reported at the meeting that they "were told" (Hetzer did not specify by whom) that they would be dis- missed or their advancement would be retarded "if the union came in," he cited only Geiger as making such a statement (about threatened dismissals), but there is no credible evidence that any representative of the Respondent made such threats (Geiger himself based his conclusions concerning the possibility of dis- missals on "grapevine talk"). Finkel and Geiger, particularly the latter, testified that those at the meeting voiced numerous complaints about unsatisfactory working conditions in the plant. Finkel asserted that employees complained that Aiani would unjustly criticize them for production delays for which the foreman was responsible. Geiger testified that employees expressed dissatisfaction with respect to such matters as unsatisfactory responses to requests for increases ; Aiani's practice of belittling employees; and the failure by the Respondent to give employees adequate advance notice of overtime work. ' Geiger also testified that he told the group that he had been transferred some weeks earlier from a Kelly to a Vertical press. The sense of Geiger's testimony is that such a transfer was a demotion and gave him less secure employment because only three (out of five) Vertical si Geiger's testimony about conditions with which the men "were disgusted" is inter- larded with testimony about other matters,; and it is sometimes difficult to determine whether the employees actually made reference at the meeting to all such conditions, but the sense of his testimony appears to be that such was the case. THE JACKSON PRESS, INC. 935 presses were in actual operation at that time , with two pressmen and a helper (in addition to Geiger ) operating the three presses ( a helper usually operates a press under supervision of a pressman), as a result of which Geiger became an "odd _man" on the Verticals. According to Finkel, Geiger "felt" at the meeting "as :though Bart Aiani had (made the transfer) purposely to get back" at Geiger for the latter's "actions regarding the union." °6 The witnesses who described the meeting were in general accord that , during its course, Finkel told them that Thornton had almost a month earlier pro- posed to him and Hetzer that they "take a couple of grand and forget about it." According tb Finkel, "eventually we got around to that, and I myself told the men the story of the automobile ride." Finkel, as well as other witnesses, ,testified that the men became aroused upon hearing his account. According to Finkel, his version of the automobile conference was followed "immediately" .by the strike resolution described above. Within a few days after the meeting , Geiger became the catalytic agent for ,the transformation of the strike sentiment into action. According to Geiger, he called on Hetzer and Finkel on Tuesday, October 18, at the Unions' office and informed them "that the boys were getting disgusted and we wanted to go out, -we were ready," and the officials told him to return to work and that the strike would be called and become effective at the close of the day shift on the follow- ing day . Geiger did not tell Hetzer and Finkel what the men were "disgusted" about because, he testified, "they already knew." Initially, Geiger testified that all 15 union members delegated him to call on Hetzer and Finkel, but subsequent details of his testimony indicate that such was not the case. He asserted that a "majority" of the members authorized him to make the visit and that he "figured the rest should feel the same way the majority did " However, other phases of his testimony disclosed that he had no such authority, at least in terms, from a inajolrity. Asked who "specifically" delegated him on Tuesday to call on Hetzer and Finkel, Geiger replied, "I talked to Morris Mendez and Sam Giambarberee ," and, during Monday and Tuesday, "If I walked past the guy and he told me he was getting disgusted, well that was enough for me." The only persons whom Geiger specifically quoted as requesting him to see Hetzer and Finkel were Husick and Giambar- beree who, according to Geiger, told him for the first time at noon on Tuesday about Aiani's proposal that "we ought to stick together" because "you are a Catholic and I am a Catholic " On that occasion, Geiger testified, Giambarberee stated, "Most of the boys are getting pretty disgusted" and "Maybe you better go over ( to see Hetzer and Finkel ) and find what we can do." The only other employee whom Geiger specifically named as stating to him that he was "getting disgusted" was Husick who, according to Geiger, told the latter on Tuesday that he was "disgusted" with "the general conditions in the plant" without specifying with what he was "disgusted ." Geiger testified that he transmitted to ^ The complaint does not allege Geiger 's transfer as an unfair labor practice Such a transfer of itself is not regarded as a demotion (Doyle's testimony). Moreover, Geiger had admittedly asked for a transfer from Kellys to Verticals soon after he began his -employment (Aiani maintained that Geiger had continued to request it) According to Aiani, the transfer conformed to Geiger 's wishes (Geiger's complaint boils down to the fact that his transfer made firm , "odd man" on the three presses then in operation But the evidence does not establish that he was any more an "odd man" than Mendez, the other helper, who was also a union member, or Satterfield, who was transferred to Geiger 's place at a Kelly, press, and whose transfer, according to the credited testimony, was made atter lie had indicated to Aiani that he favored unionization If Geiger was demoted, then Satterfield was promoted , and, as it is not contended that Satterfield 's transfer was effected to dilute his interest in unionization , it makes little sense to assert, on the one hand, that Satterfield was promoted after lie made his prounion views known to Aiani and that, on the other, Geiger was correspondingly demoted because of union activity. 936 DECISIONS OF NATIONAL LABOR RELATION'S BOARD the pressroom employees the instructions he received from Hetzer and Finkel The strike began at the close of the day shift on Wednesday afternoon , October 19.E - Geiger was perhaps the most articulate of the witnesses on the subject of the causes of the strike . As it was he who took the necessary steps to fuse the employees' strike sentiment into concrete action , his relevant testimony assumes some significance. It may first be noted that Geiger's testimony , as well as his demeanor, re- flected his substantial discontent with his transfer from one press to another, and there is latent in his evidence a disposition to regard the transfer as a ,vehicle of reprisal against him as an "instigator ," a conclusion by Geiger which finds no support in probative or credited evidence. He appears to have based 'much of his assumption in that regard on "talk going around the shop that there was one too many guys in that one department" ( Vertical presses). His -testimony (both in text and demeanor ) also reflected animus against the Re- spondent , which was rooted in economic considerations . He agreed that about 2 weeks before the strike, he asked Afani for an increase and described the ,surrounding circumstances as follows : "Well, I kept after Bart for about two months and he says, `Well , you have to put your nose to the grindstone,' and -the old stuff, and then he says, well , after a couple of weeks of pretty near 'begging the guy he says , "Well, I did all I could for you. I finally squeezed a. nickel out of Stecki.' I says, `You can have the nickel, I don't want it.' " Under cross-examination , Geiger was interrogated concerning the "conditions" with which the men were "disgusted" and which prompted him to call on Hetzer and Finkel. He asserted that the men were "disgusted" with "general condi- tions in the shop," and proceeded to recount Aiani's proposal to Giambarberee "to stick together" because of their common religious affiliation , and his (Geig- er's) own dissatisfaction with his transfer ; "sweat shop" conditions ( work on Saturday and excessive overtime , according to Geiger ) ; and the Respondent's (alleged ) practices of giving employees a "run-around" when they requested ,increases , and of affording them inadequate advance notice of overtime work. Questioned concerning the nature of Husick 's complaint, Geiger responded, "Everybody in the shop had their own complaints. I had enough of my own to worry about. I can't remember everybody 's." On redirect examination , Geiger asserted that he took steps to have the Unions call the strike because "some of the boys were afraid of their jobs, and so was I . I was being pushed around. I was made the odd man, . . . and I heard of talk that they were going to have to get rid of a couple of guys, and the employer wouldn't agree to any election until the last of the.year or the first part of the next year, and we figured that we would be laid off or fired one by one, and it would break the union backbone." At later points, Geiger indicated that the economic factors ,he described were minor elements in the dissatisfaction of the men (as voiced at the meeting ) and that the "main things" the employees were "disgusted" with at the meeting were "the stalling we were getting from the Board and the firm, and also the bribery attempt." If one accepts Geiger 's statement of the strike's causes as a substantial re- flection of the employees' sentiments, one must conclude that misconception 661n detailing the circumstances surrounding Geiger's visit to Hetzer and Finkel, par- ticularly the evidence bearing on Geiger's authority to call on them, I do not intend to intimate that there was anything unlawful in Geiger's activities or that the strike which followed was not a protected concerted activity. It is elementary that the men had a right to strike, irrespective of the nature and scope of Geiger's authority. Geiger's activi- ties are recounted merely as part of the chain of events which led to the strike and as background material for an appraisal of the underlying causes of the strike. THE JACKSON PRESS, INC. 937 and conclusional surmise played a potent role in the decision to strike. Conclu- sions that the Board was "stalling" an election, that "there was no more chance" of one, that Thornton had "cancelled" an election and "had refused to allow" or "postponed" a second election date, and that an election had "been delayed a couple of times" with a date finally set for "late in November," are contrary to the facts. Such erroneous assumptions suggest either that Hetzer and Finkel did not give the employees a correct account of the conference at the Regional Office or that, if they did, employees nevertheless fed their understanding with their imagination. Whatever the case, I am unable to accord legally operative significance to such conclusional misconceptions. Similarly, it would be im- proper to give legal weight to the surmises of employees that the Respondent contemplated reprisals against them for union activity or was endeavoring tc maneuver an election into a slack period which it could use as -a cover to "get rid of" union adherents. The record is barren of any evidence which I can credit that the Respondent either threatened or contemplated reprisals against employees or that it was seeking to project the election into a period of seasonal layoffs. With regard to such anticipated layoffs, it may be noted that the Gen- eral Counsel did not adduce any evidence, although such is undoubtedly avail- able in the Respondent's records, showing that the Company experienced a business decline in the winter of 1949-50 or, for that matter, in any similar periods in previous years To accord legal significance to the employees' sus- picions would be to substitute "grapevine talk" for credible evidence as a guide to decision. Turning to the alleged bribe offer, it may be asserted that a finding that Thorn- ton in fact made the proposal is a necessary precondition to a conclusion that it was a contributory cause of the strike. Since the preponderant weight of the evidence does not establish that the offer was made, I must conclude that the alleged offer was not a contributory cause of the strike. In a legal sense, therefore, I must hold that the employees based their action upon Hetzer's and Finkel's version of what occurred during the automobile conference, and not upon the actual existence of a bribe offer to Hetzer and Finkel. If unlawful conduct by the Respondent was a contributing cause of the strike, support for such a conclusion must be found in the few inhibiting statements made by Aiani to Bahno, Satterfield, and Kreuzer and the evidence bearing on the Respondent's motivation in refusing to bargain and thus, in effect, requiring the Unions to establish their. elaimi of representation through' -use of the Board's' procedures. I am unable to regard the few credited instances of'unlawful statements by Alan!, standing alone, as a cause of the strike. Aside from the fact that such remarks violate Section 8 (a) (1) of the Act, their significance derives from the extent to which they may throw 'light on the Respondent's motivation in rejecting the Unions' claim of a majority, a matter to be discussed below. From what has been said, it is apparent that a basic cause of the strike was the Respondent's refusal to recognize the Unions' claim of representation and to bargain with them .87 If that was unlawful , then the strike was caused by an unfair labor practice, with all the legal consequences that may follow from such conduct. In the final analysis, then, the nature of the strike turns upon the question of the Respondent's good faith in refusing to accede to the Unions' requests of September 20. It is elementary that an employer, who asserts doubt of an uncertified union's representative status, may refuse to bargain with the union until it establishes wSee, also , Husick's testimony that the purpose of the strike was to "get recognition of the union." 938 DECISIONS OF 'NATIONAL LABOR RELATIONS BOARD its' representation claim through the Board's election machinery, provided the- employer asserts his doubt in good faith and is not motivated by a design to. gain time in which to dissipate the union's majority. The Respondent became aware of union activity in its, plant only the day before the meeting in Thornton's car. When the Unions made their bargaining demand, the Respondent thus had nothing but their naked assertion that they had a sufficient representative status. The discussion pertaining to recognition, was very brief, and the evidence suggests that it was of a perfunctory character. The Unions proposed no method short of use of the Board's procedure to assure• the Respondent of the validity of their claim, and the Respondent requested no such assurance, at least by implication adopting the position that the burden- of establishing their claim rested with the Unions-a burden the latter did. nothing to disavow. At least by tacit understanding, the parties agreed that the recognition question would be deferred until the Unions established their claim of representation by use of the Board's procedures. I am not persuaded that Doesburg committed himself during the conference in: the car to consent to an election. He denied in effect that he had done so,' and there are factors which weigh preponderantly against a conclusion that he com-, mitted himself to a consent election. Significantly, the evidence indicates that the Unions based their anticipation that the Respondent would consent to an election upon something Doesburg's law partner is supposed to have told Jacobson rather, than upon Doesburg's statement in the car.' Under the circumstances, I am- unable to credit the claim that Doesburg committed himself in the car to a consent election. But whatever the fact may be, too much can be read into the brief and apparently perfunctory discussion concerning recognition which occurred there. A consent election presupposes an agreement on the unit. The Unions did not clearly define the unit they wanted, nor did they state the nature and scope of their majority, nor upon what groups of employees they relied to support their claim. A mere statement by the Unions that they represented the pressroom employees could convey different meanings to different people. The cutting and folding machines are in the same room with the presses which are far more- extensive in number and occupy much more space than the other machines. The cutting and folding operations are plainly relatively small and ancillary features- of , the basic business conducted by the Respondent in the room, namely the production of printing. True, Hetzer produced a list of names of the press employees, but all he did with it was to display it and inquire whether all those- named were the Respondent's "employees in the pressroom." The evidence indi- cates that Thornton recognized few of the names and that Stecki confirmed that the men on the list (which-is inaccurately labeled "Day shift" and contains no job titles) "were all working in the pressroom." One cannot conclude that the mere production of the list and the attendant query about the employment status of those listed would inevitably convey the meaning to the Respondent that the unit the Unions had in mind was confined only to press employees. The casual nature of the inquiry and the response thereto is underscored by the fact that Aiani's name is on the list, although, as a supervisor, he is ineligible for inclusion, in the appropriate unit, and he supervised the work of the other production departments as well as that of the press employees. For all that appears, the O Doesburg's denial was not stated in specific terms, but after, he had concluded a detailed statement of his version of what had occurred in the car, he testified : "I have related every bit of the conversation that took place in that car in substance and in language." . - - ' 69 As noted earlier, Hetzer gave some contradictory testimony as to the basis for big expectation, but Finkel clearly- stated, and Hetzer at one point agreed, that they based their anticipation upon a statement Goddess allegedly had made to Field Examiner Jacobson., THE JACKSON PRESS, INC. 939, inquiry could-be taken as a hint that a substantial majority of the employees listed supported the Unions, rather than as a definitive assertion that the unit claimed consisted solely of press employees. The evidence does not reveal what meaning iletzer's somewhat obscure inquiry conveyed, but it may not be assumed, in the light of other evidence, that the mere omission by the Respondent, during a perfunctory discussion, to take the initiative at that point in outlining its unit concepts places the stamp of bad faith upon its later emphasis upon the scope of an appropriate unit. If the Unions had clearly outlined their position on the unit, if the Respondent had then acceded to a proposal for a consent election, and if the Company had later changed its position, a different conclusion might be warranted. As it is, the first concrete definition by the Unions of the unit they desired appeared in the petition for representation, and the Respondent used the first meeting with the Unions thereafter as the occasion to dissent from their proposal. Although the Respondent's unit concepts have not been adopted here, it may not be assumed that they were specious in the setting in which they were ad- vanced. The conceded fact is that, whatever the reason, Local 4 had in some cases claimed jurisdiction over, and bargained for, cutters and folders where such employees performed their work in the same room with or adjacent to the press- 'men The Franklin Association and Local 4 had had in force for a number of Years contractual provisions establishing rates for cutters and folders, and applying to a small number of plants, including at least one having substantially the same type of business, presses, and number of employees as the Respondent. Indeed, the Board itself, where particular circumstances warranted, has in some cases " involving printing establishments asserted that before it would separate press employees into a unit of their own it would hold an election to determine the wishes of those concerned In the light of the collective bargaining history of Local 4 with respect to cutters and folders, one cannot conclude that the Respondent's purpose was to use the Board's machinery as an instrument with which to gain time to destroy the Unions' majority among the=press employees. Turning next to the conclusions to be drawn from Aiani's conduct, it is funda- mental that evidence of violations of Section 8 (a) (1) may, in a proper case, warrant an inference that an employer's design in questioning a union's repre- sentative status was to gain time to destroy the organization's majority I am unable to conclude that the credited evidence of Aiani's unlawful conduct evinces such a purpose. Aiani's behavior was neither the model that the Respondent's evidence pictures nor as gross as the General Counsel claims it to have been. There is a marked boundary between the conduct attributed to him by Bahno, Satterfield, and Kreuzer and that imputed to him by Husick, Lambing, Giambarberee, and Geiger. In.the main, what emerges from the credited evidence is that he expressed privileged antiunion animus to the first three, that on one occasion he inter- rogated Bahno concerning his union sympathies, that on another he asked Satter- field how he would vote in an election, and that he once visualized for Kreuzer the possibility of forming an inside "union of ourselves" (apparently a company union). Without condoning Aiani's unlawful statements, it may be pointed out that the air in the Respondent's small pressroom was filled with talk of unioniza- tion and of anticipation of an election and, in that setting, I cannot regard the credited evidence of Aiani's misconduct as sufficient evidence of a design to use the delay incident to a representation proceeding as a means of destroying the Unions' majority. - 70 Wilson-Jones Company, 75 NLRB 706, and lie May's, Inc., 81 NLRB 1374. '940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD' As will appear below, the Respondent committed some violations of the Act during the course of the strike. These will be analyzed later. It is enough to state at this point that, viewed in the context in which they occurred, I do not regard the relevant incidents as tending to establish that the Respondent acted in bad faith prior to the strike in questioning the Union's majority and in seeking a unit other than the one proposed by the Unions. Based upon the record as a whole, I am persuaded that the evidence does not preponderantly establish that the Respondent acted in bad faith in questioning the existence of the Unions' majority or in requesting a hearing on the petition for representation. Accordingly, I ^ find that in refusing to bargain with the Unions, the Respondent did not violate the Act. The context of the evidence suggests that Fetzer and Finkel, although indi- cating to Fagan that he should proceed upon the petition, left the Regional Office imbued with a purpose to compel the Respondent to bargain by substitut- ing economic pressure (a "sidewalk fight") for the Board's procedures. As Finkel put it in describing what he told the men at the October 15 meeting, "things (at the conference with Fagan) didn't go to our liking, ... and there- fore we would have to do something about it." It was also Finkel who ex- pressed the Unions' reason for insisting on a consent election when he stated at the Regional Office conference that "the management would take an unfair advantage of us . . . (because) at that time (when an election would he held) it would be the slow period and some of our people (employees) had been talking about being laid off...." As already pointed out, it was assumptions such as this, which cannot be sustained on the basis of the record, which were such potent contributors to the decision to strike. The petition for representation was' withdrawn on the day the strike began. Hetzer perhaps cast a revealing light on the underlying motivations for the strike when he asserted that the petition was withdrawn "because we didn't want to have the case in the Board any longer," since "we felt the procedure would take too long" ; and that the Unions "felt we had a chance of beating" the Respondent (gaining recognition) without an election. The right of the Unions to call the strike, and that of the em- ployees to engage in it, as a means of-securing recognition from the Respondent, is not open to question, nor is it within my province to suggest what course of conduct the Unions and the employees should have followed However, it may appropriately be noted that, upon the basis of•the evidence I can credit, the record leaves me with the conviction that no substantial rights of the Unions or the employees would have been impaired had the petition for representation been permitted to take its normal course in the event of ultimate failure to agree upon an expedited election. In the light of the evidence, I find and conclude that unfair,labor practices committed by the Respondent were not operative causes of the strike. E. Events during the strike The evidence is undisputed that the Respondent filled the positions of all 15' strikers by November 2, 1949; that the Respondent's operations continued on a normal basis thereafter ; that on March 31, 1950, counsel for the Unions wrote to the Respondent's attorneys that on behalf of the strikers, he was tendering "their unconditional offer to return to work immediately" ; and that on May 1, 1950, Doesburg responded, stating that he had not replied earlier because he had been out of town and that if the strikers made application to Stecki, their applications would "be accepted for (such) positions as are available" and would "be given first preference in the order of their application for positions for which they are qualified." THE JACKSON PRESS, INC. 941 The,General Counsel asserts that Thornton and Aiani engaged in misconduct during the strike and thereby prolonged it. In the main, the alleged incidents, consisting principally of statements attributed to Thornton, occurred after the .places of the strikers were filled, but that is of no moment, since Section 2 (3) defines an "employee" as including "any individual whose work has ceased as a consequence of . . . any current labor dispute."'i , Hetzer testified that on the first morning of the strike, he asked Thornton to "get together and settle this thing" ; and that a "hot altercation" ensued. Ac- cording to Hetzer, Thornton responded that Hetzer was a "communist," an "agitator," and a "jughead," that "there was no place in this country for fellows" like Hetzer, and that he (Thornton) "didn't want anything to do with a com- munist" such as the organizer. Hetzer asserted that he told Thornton that "that was no way to look at the thing, because sooner or later we would have to get together and settle it, anyhow." According to Hetzer, others, including Finkel, Geiger, and Tobias, were standing "a foot or so away." Although Hetzer stated that "there was considerable talk, arguing back and forth," with both talking in "a loud tone of voice," he gave no additional details of the "altercation." Hetzer also testified to a similar conversation with Thornton 4 or 5 days later, adding that some strikers, including Geiger, Tobias, and Satterfield, were "close by" and that others (Mendez, Wogtech, and O'Toole) were from 8 to 15 feet away. On that occasion, Hetzer testified, Thornton charged Hetzer with "trying to hurt him" and stated that he would get a warrant for Hetzer's arrest. Thornton's version of his conversations with Hetzer. is that "approximately two or three weeks after the strike started," the organizer began to villify and abuse him with such names as "cheap-skate," "rat," "deceiver," and "Molotov," and an allegation that he operated "a Gestapo pressroom." According to Thorn- ton, he replied in kind by calling Hetzer such names as "Tokyo Rose," "Vishinsky," and "conniver." The Company's president asserted that he never called Hetzer a "communist," but told the latter that he "acted like a communist." Thornton testified that on another occasion, while he was escorting a nonstriking employee from the plant, Hetzer called to the employee not to "listen to that guy" ; that he told the employee not to "listen" to Hetzer ; that Hetzer said, "I will break your legs, Thornton"; and that he (Thornton) asked the employee to be a witness if he swore out a warrant for Hetzer's arrest. Thornton indicated that he had other exchanges of name-calling with Hetzer from that point on ; that these usually occurred when he escorted nonstriking employees to and from work ; and that he "followed Mr. Hetzer's lead in most of the conduct." It would be an idle task to attempt to determine who began the villification between Hetzer and Thornton and who excelled at it. Based upon my observa- tion of Hetzer and Thornton, I am unable to assume that the docility which each imputed to himself on the witness stand was an accurate reflection of his conduct on the picket line. There is evidence that Hetzer harbored and expressed resent- ment against the Respondent before the strike (his remarks at the conference on October 12), and there can be little doubt that the strike had an inflammatory effect on Thornton. Legal significance should be accorded to such intemperate name-calling (concerning which both the General Counsel and the Respondent "Cf. Phelp8 Dodge Corp. v. N. L. R. B., 313 U. S 177 and N. L R. B. v. Waunibec Mills, Inc, 114 F 2d 226 (C. A. 1), where it was held that a discriminatory denial of employ- ment to an applicant violated Section 8 (a) (1) as well as Section 8 (a) (3). I can perceive no logical distinction between acts of interfeience, restraint, and coercion com- mitted against an applicant for employment and those committed against economic strikers after their places had been filled. But note Kallaher and Mee, Inc, 87 NLRB 410, where the Board reserved the question whether an employer may lawfully dis- charge economic strikers after their replacement. 942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD adduced considerable evidence) only to the extent to which it forms an integral part of conduct condemned by the Act's Hence, the significant question at this Point is whether Thornton refused, in the presence of employees, to deal with Hetzer as their representative. If Hetzer is credited, the implication of Thorn- ton's statement was that the Respondent would not, under any circumstances, bargain with Hetzer as a representative of the Unions irrespective of whether the Company was legally obligated to do so. Such a statement would be violative of Section 8 (a) (1). The weight of the evidence does not support Hetzer. Sattgrfield's testimony does not support Hetzer. Although Tobias described occasions when Thornton allegedly told. passersby and others that he would not deal with Hetzer and Finkel, his testimony was silent concerning both incidents Hetzer mentioned. Geiger asserted that on one occasion, while Thornton was talking to some non- striking employees, he overheard the Company's president tell the employees that Hetzer was a "communist" and not to "have anything to do" with such individu- als, but Geiger made no other reference to the incidents described by Hetzer. Without specifying a date; Kreuzer asserted that on one occasion, while Hetzer attempted to talk to nonstriking employees, Thornton called Hetzer a "commu- nist," but Kreuzer gave no other details of the incident. Similarly, Bahno testi- fied to epithets which he stated Thornton leveled at Hetzer. Finkel, in my judgment a more perceptive witness than Hetzer, stated that on two occasions he heard Thornton call Hetzer names, but Finkel did not quote Thornton as stating he would have nothing to do with Hetzer, although it may be noted that Finkel also testified that in both instances when he heard Thornton make uncompli- mentary remarks to Hetzer, he moved away from them. Although there is evi- dence that Thornton, under other circumstances and at a much later period (than that mentioned by Hetzer), to be described below, made statements, interlarded with abusive descriptions of Hetzer and Finkel, to the effect that he would not deal with the officials, I am unpersuaded-that in the conversations described by Hetzer, whenever they occurred, Thornton told the organizer that he would not deal with him. It is not improbable that Hetzer made some overtures to Thorn- ton early in the strike, but much of Hetzer's testimony has a conclusional trend and it is not unlikely that the organizer read into the "altercation" (which I am convinced he did not describe fully) remarks to the effect that Thornton refused to do business with him. What Thornton's response to Hetzer's overtures was I am unable to state, because I regard the versions of both men as unreliable. It is enough to point out that not a single one of the witnesses alleged by Hetzer to be present lends support to Hetzer's claims that Thornton used language to the effect that he would have nothing to do with him. Accordingly, I have reached ,the conclusion that the evidence does not preponderantly establish that Thorn- ton stated, in words or substance, on the occasions described by Hetzer, that he would have nothing to do with the organizer. .Edward Tobias, a striker, testified that while he was on the picket line on the first or second day of the strike, Thornton asked him the reasons for the walkout; that he replied (apparently in ironic vein) that Thornton was not at "a loss" for the reason, and "it was hardly the time to discuss" the matter since "our representatives had been negotiating . . . for a number of weeks" ; and that Thornton then disparaged his ability, called him a "communist," told him he belonged "in Red Russia," and stated, "You don't belong upstairs and under no circumstances will you ever come back to work for me upstairs." Other witnesses (Bahno, Bachman, Lambing, and Hetzer ), using varying descrip- °R Cf. Editorial "El Imparcial" Inc., 92 NLRB 1795. / THE JACKSON PRESS, INC. 943 Lives, but apparently referring to the same incident,i3 testified that Thornton in words or substance called Tobias a "communist" Hetzer and Finkel (who as- serted he heard only part of a conversation between Thornton and Tobias) sup- ported Tobias' claim that Thornton also stated that the employee would not be reemployed, but the other witnesses made no reference to such a statement. Thornton testified that he did not talk to Tobias "directly," and, placing the incident as occurring while he was among a group of pickets in front of the -building, that Tobias stated that the Respondent was "running a sweat shop" which was "like a Gestapo room"; that he (Thornton) remarked, "You fellows are certainly acting like communists" ; and that Tobias protested, "Don't you call me a communist," to which Thornton replied that he had not done so. Geiger asserted that about 3 weeks after the strike began, while he was on the picket line, Thornton told a policeman stationed nearby that he could not understand why Geiger was striking inasmuch as the latter had been receivin:; .$150 an hour. Geiger testified that he interposed with the remark : "Don't go handing this guy (policeman) a line. If you pay me a dollar and a half an hour I will go back to work for you" ; and that Thornton replied, "you ain't ever .going back to work for me." Hetzer, apparently testifying to the same incident, although filing the period of its occurrence about 5 to 7 weeks after the strike began, stated that he overheard part of a conversation between Thornton and Geiger in which the former told the employee, "You are never going\to work for me again." - Another striker, Arthur Geib, testified that while he was on the picket line about a month after the strike began, he heard Thornton, who pointed in the direction of the pickets, remark to a man (identified only as Lou) who was employed in the building: "I wouldn't have this riffraff in my shop. 'I would close the doors first." Thornton denied that he made the statement." As Thornton related his version of the Tobias incident, I gathered the impres- sion that he was not giving a full account of all that occurred on the occasion in question. Moreover, much of his testimony relating to conversations with strikers, as will appear below, carried an evasive note. While other elements of the testimony of both Tobias and Geiger had a conclusional flavor, and while I do not regard all significant phases of their evidence as reliable, their relevant versions of the remarks attributed by them to Thornton, as described above, had the ring of truth, and I credit them." Geib's testimony impressed me as straight- forward, and r find that Thornton made the statement Geib' attributed to him. The sense of Thornton's statements to Tobias and Geiger was that the Respond- ent would not reemploy them under any circumstances Although Thornton's 53 Hetzer placed the incident in the second week of the strike , Bahno during the first week ; Bachman either that week or the beginning of the next ; and Lambing on the first morning. I attach no particular significabce to the variances. Husick and Geiger also described incidents in which Thornton allegedly called Tobias a "communist" but I doubt that it was their intendment to describe the occasion to which Tobias testified. 74 The Respondent produced one Samuel L. Lift who is engaged in business in the same building as the Respondent. Liff denied that Thornton made the remarks attributed to the latter by Geib However, there is nothing in the record to indicate that Liff was the individual to whom Thornton addressed his remarks. The Respondent for some unexplained reason assumed that Geib's testimony identified Liff. Such an assumption is unwarranted by the evidence and, perhaps, reflects some confusion on the part of the Respondent. " I' have previously attached significance to the fact that much of Hetzer's version of some conversations he had with Thornton was uncorroborated by others alleged to be -present Tobias was corroborated by others named as present on the occasion he described. I do not in this instance attach controlling weight to the fact that not all such witnesses verify all the details of Tobias ' version. 944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD remarks to both employees were apparently responses to somewhat provocative- and seemingly sarcastic comments, I have no question that Thornton' s senti- ments derived fundamentally from the circumstance that Tobias and Geiger- were engaged in a protected concerted activity. Similarly, the statement in Geib's presence carried the meaning that he would not reemploy strikers be- cause they had engaged in the strike.7' Accordingly, I find that Thornton's statement `that he would not reemploy Tobias and Geiger, and that he "would close the doors" before he would "have this rift raff in my shop" violated Section 8 (a) (1) of the Act.77 Lambing testified that about 6 weeks after the start of the strike, pursuant to Aiani's request, he, like other striking employees, came to the pressroom to remove his clothes from a locker. According to Lambing, Aiani told him on_ that occasion that "if I took my clothes out of there instead of going to work I could consider myself finished or discharged." Aiani denied making such a statement. There was undisputed evidence that Thornton had previously issued instructions that the strikers remove their clothes from the lockers in order to- 'make locker space available. Lambing's demeanor in relating the incident was. somewhat vague and his mode of expression had an inconclusive flavor. More- over, it is difficult to reconcile Aiani's alleged statement with the policy of re- quiring the strikers to remove their clothes. Accordingly, I find and conclude that the weight of the credible evidence does not establish that Aiani made the, relevant remarks.78 There was evidence, given by both sides, that Thornton would escort non- 'striking employees to and from, the plant. The evidence also reflects efforts by pickets and Hetzer and Finkel to enlist the support of such employees, and -by Thornton to retain their adherence. On such occasions, according to Tobias, Thornton would frequently express his attitude toward the strikers to passersby and nonstriking employees. On one occasion, Tobias testified, about 10 days or 2 weeks after the strike began, an (unidentified) acquaintance of Thornton's, telling the latter that "there is a lot of dignity to a union shop" suggested to ,Thornton that he "get together and sign up" with the strikers. Thornton re- plied, according to Tobias, "Oh, no, never. Why those are just lazy kids. They don't want to work." Tobias asserted that other pickets were present, including Bachman, who "was doing the. beat" with him. Tobias also asserted that after the first 2 weeks of the strike, Thornton would be asked almost "daily" by in- dividuals (whom Tobias could not identify) about the progress of the strike and what the Respondent "proposed to do about it," and Thornton, characteriz- 7° The complaint charges in specific detail the manner in which the Respondent allegedly- violated Section 8 (a) (1). Paragraph 10, which deals with the conduct of the Respond- ent during the strike, is insufficient to support a conclusion that Thornton ( the Respondent) violated the Act by making the relevant statements respectively attributed to him by- Tobias, Geiger, and Geib. However , although the matter is not free of doubt, I have con- strued paragraph19 ( b) and 9 ( d) as sufficiently broad to support the findings made. 711 disagree with • the General Counsel 's -claim that Thornton 's characterization of Tobias as "a communist" violated the Act Editorial "El Impartial" Inc, 92 NLRB 1795. 18 According to testimony given by Bahno, Bachman, and Kreuzer, Aiani on separate stated occasions during the course of the strike proposed to them that they return to work. ,Bachman also asserted that when Aiani invited him to return , the foreman said that he- -would give him (Bachman ) more money. Aiani denied that he had asked the three to return. It is unnecessary to resolve the issue of credibility Such solicitation of the strikers is a violation of the Act only if one assumes that the Respondent was under a statutory obligation to bargain with the Unions (Roanoke Public Warehouse, 72 NLRB 1281 ). In view of the finding that the Respondent did not unlawfully refuse to bargain ,on September 20, I do not regard Aiani's alleged proposals to Bahno, Bachman, and Kreuzer, if credited , as violative of the Act. THE JACKSON PRESS, INC. 945 ing the strikers as a "bunch of kids" would respond that he intended to do noth- ing about the matter and would "never sign with them." Tobias added that Bachman and he "invariably spent considerable time on the picket line to- gether."'e Thornton denied making the statements attributed to him by Tobias. Aside from the fact that Tobias was unable to identify any nonstriker (except one mentioned in connection with an incident of no significance) or passerby, I am unable to accord substantial or significant weight to Tobias' relevant testi- mony. Bachman who, according to Tobias, "invariably" picketed with the latter, made no reference to any of the alleged incidents described above. Moreover, testimony given by Tobias at the point in question suggests the possibility that in imputing to Thornton numerous statements that he would not "sign up" with the strikers was a reflection of Tobias' construction of Thornton's attitude rather than a quotation of what Thornton actually said. Questioned whether he could identify any person to whom Thornton addressed remarks of the type indicated, Tobias asserted that such a statement was made to a nonstriker named Major. But all that Tobias quoted Thornton as telling Major on the occasion in question was, "you don't have to listen to those guys (Hetzer and Finkel), you're in a free country." 80 Significantly, no other witness testified that Thornton made statements to passersby or onlookers that he would not "sign up" with the strikers." For the reasons indicated, I have reached the conclusion that the evidence does not preponderantly establish that Tobias heard Thornton express himself to that effect to passersby or onlookers. Some 6 weeks after the strike began, Thornton and a group of strikers, while in a restaurant, engaged in a discussion of the strike and related matters. Thornton had encountered the group on the street and it had been suggested that they have coffee in a nearby restaurant. Bahno, Geib, Geiger, and Husick were among those present and gave testimony concerning the incident. Wit- nesses presented by the General Counsel testified, either in language or sub- stance, that Thornton, stating that he operated a good shop, asking them the reason for the strike; that the men expressed some dissatisfaction with Aiani, criticizing the manner in which he performed his duties ; that Thornton stated that he had been unaware of the conditions with which the men were dissatis- fied ; that he had contemplated installing hospitalization, accident insurance, and profit-sharing plans and, perhaps, the purchase of a new building to house the plant ; that if strikers returned to work they would receive such benefits 99 Tobias also testified that Thornton often told nonstrikers not to be afraid of the pickets, that "this is a free country," that "they (presumably the strikers and the Unions' representatives) never do an honest day's work," and are "communists" and "belong in Red Russia." Geiger described one incident in similar vein. Thornton substantially denied the use of such epithets. The alleged encounters with union adherents, in what- ever form they found expression, appear to have been an outgrowth of competition between pickets and Thornton for the adherence of nonstriking employees. The General Counsel places some stress upon the epithets allegedly used by Thornton. In passing it may be noted that pickets also referred to nonstrikers in uncomplimentary fashion. Without condoning the verbal zeal displayed by either side, I attach no legal importance to such picket line exchanges. 80 It may be that Tobias was confused and intended to identify Major as an individual to whom Thornton customarily addressed statements not to heed the union organizers, rather than one to whom Thornton stated that he would not "sign up" with the strikers. However, the context of the questions put to Tobias was such that it should have been apparent to him that more specific information was being sought from him concerning Thornton's alleged refusal to "sign up." 81 As described elsewhere, Geib testified to remarks Thornton addressed to a man em- ployed in the building. The statements involved were somewhat different from those de- scribed by Tobias and were not mentioned by the latter. r 946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as he would put into effect in due course; '2 that the men proposed to Thornton that he recognize and bargain with the Unions ; and that he responded that he- would not do business with Hetzer, terming him a "jughead," and that'he would not deal with Finkel because he is a "shoniker" (a derisive reference to Finkel's religious faith)." Thornton's version of the discussion had a vague and evasive cast. He agreed that he asked the men the reason for the strike and stated that they told him of their desire fog an election, to which he replied that that was what he had wanted and, if the Unions had conformed to the law, "we would-have an elec- tion." Initially denying that the men had complained about Aiam, Thornton then recalled that some complaint was voiced about the length of time Aiani took in approving work. Thornton also remembered that they spoke about inadequate locker space. Thornton stated that he "could have said something" about the possibility of buying a new-building. According to Thornton, the subject of employees' benefits arose when Geiger pointed out the provision unions made for such matters, and the Company's president expressed the hope that he would some day be able to purchase a building and install sick benefits and profit-sharing plans. At certain points in his testimony, Thornton stated that there "could have been" a discussion of "union benefits" and "sick benefits," but he later agreed that such matters had been discussed. He denied that he prom- ised to introduce such benefit plans in the future if strikers would return to work. During his intial version of the discussion , . hornton made no reference to the question whether the employees had requested him to negotiate with Hetzer and Finkel, but later in his testimony, in response to a question put to him, he denied that any of the employees had suggested that he undertake discussions "with the union officials." It is unnecessary to attempt a detailed reconciliation of the testimony bearing on the restaurant conversation, nor to resolve all conflicts in the relevant evi- dence. As noted earlier,' Thornton's testimony on the subject had an evasive quality. At points some things he-said had an implausible flavor and on occasion he appeared more concerned with parrying questions than in giving an objective account of the conversation. I credit the testimony that Thornton made deroga- tory remarks concerning Hetzer and Finkel and that he stated that he would not deal with the two officials. It is also found that Thornton said that he would not do business with Finkel because the latter is a "shoniker." The implication of Thornton's remarks is that he would not bargain with the Unions under any circumstances, so long as Hetzer and Finkel represented them in any negotia- tions. Thornton's statements that he would not deal with Hetzer and Finkel, and the reasons expressed therefor, tend to inhibit and interfere with the rights guaranteed to employees by the Act, and are, consequently, violative of Section 8 (a) (1). , Tobias testified that on one occasion, about 3 weeks after the start of the strike, one of the pickets told Thornton that the strikers were ready to return to work and proposed that the Respondent "sign up with our men" ; that Thornton replied that Hetzer was a "communist" with whom he would not do business 82 The General Counsel's evidence is somewhat obscure on the question whether Thornton proposed that the strikers return to work. Bahno quoted Thornton as stating that "if we would come back to work for him everything would be forgotten ." It is not clear from Bahno's testimony whether the term "we" referred to all the strikers . Husick testified that Thornton "couldn't promise he would take all the fellows back but there were some of the fellows he could take back." Geiger and Gelb niade no reference to a proposal by Thornton that any of the employees return to work. 82 The above summary of the principal phases of the General Counsel's version is drawn from testimony given by Bahno, Gelb, Geiger, and Husick and is a synthesis of their evidence on the subject. ' THE JACKSON PRESS, INC. 947 imder any circumstances ; and that Thornton also described Finkel as a *'shoni- ker," asserting that he (Thornton) had been "taken once by a shoniker and he wasn't going to be taken by another shoniker." Lambing, apparently describing the same incident, testified in similar vein 8' Thornton denied that he had ever expressed himself to the effect indicated. In treating other phases of testimony given by Tobias and Lambing, I have concluded that the evidence did not preponderantly support them with respect to particular incidents they respectively described. On the occasions when I did not regard their testimony as sufficient to support findings, there was no other credible evidence to give substantial corroboration to such testimony. However, credibility does not always lean in one direction, and particular evidence given by a witness is not inevitably soiled by his other testimony which is found to be unreliable. The statements in_ question attributed by Tobias and Lambing to Thornton are given corroborative support by the credited evidence of Thornton's expressions in the discussion he had in the restaurant with a number of striking employees Remarks he made on that occasion are of a piece with those imputed to him by Tobias and Lambing. Moreover, the record reflects a disposition by Thoi nton to label his adversaries in an industrial dispute as "communist." 85 Such evidence, considered with other testimony, contributes to the plausibility of Tobias' applicable testimony. I find that in substance Thornton in the presence of striking employees stated that he would not deal with Hetzer and Finkel, expressing as his reasons that Hetzer was a "communist" and Finkel a "shoniker." The implication of such statements was that Thornton would not deal with the representatives of employees, irrespective of the existence of a right of representa- tion, and such remarks therefore violated Section 8 (a) (1)." The conclusion was reached earlier in this Report that the evidence does not preponderantly establish that the Respondent acted in bad faith in questioning the Unions' majority and in seeking an enlarged unit, and it was pointed out, without setting down detailed reasons, that the Respondent's conduct during the strike, even when viewed against the background of events preceding it, did not establish that the Respondent acted in bad faith in refusing to bargain before the strike. In appraising Thornton's motivations in refusing to bargain prior to the strike, the critical question is what they were when he refused to bargain and not what they became after the strike started. Without condoning Thorn- ton's unlawful statements to strikers and others, his conduct should be viewed 8+ Lambing's description of the incident made no reference to Hetzer. 85 With respect to another phase of this proceeding, Russell Packard, counsel for the Unions, testified that some months later he, J Norman Goddess, of counsel for the Re- spondent, Finkel, and Thornton were present in the Municipal Court of Chicago in con- nection with certain charges brought by the Respondent against some of its striking employees. Packard asserted that while he was engaged in conversation with Goddess, Thornton came over and said to Goddess, "Don't talk to that goddam communist." Finkel testified to the same effect Thornton denied making the statement attributed to him Goddess (lid not testify, although present throughout the hearing According to Packard's uncontradicted testimony, Goddess told him during the hearing in this proceeding that, if called as a witness, he would corroborate Packard, but expressed the wish that he not be called. Packaid agreed not to do so. I regard Packard as a reliable witness and do not credit Thornton's denial of the incident. 86 Without specifying any period or describing the surrounding circumstances, Giambar- beree attributed to Thornton a desire "to get a few of us together again," asserting that "we" would refer Thornton to Hetzer and Finkel as "our business agents." According to Giambarberee, Thornton responded (whether more than once is not clear) that he had not dealt previously, and would not deal then, with those "shonikers" and "Jews " The quality of Giambarberee's testimony was such that I cannot overlook the possibility that he was giving expression to what he had heard other employees say rather than what he heard Thornton state. In any event, in the absence of a clear and corroborated description of surrounding circumstances, I regard Giambarberee as too unreliable a witness to base a finding on his testimony. 948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the setting in which it occurred. Motivations and the capacity for hostility are not lodged in a vacuum. They take shape with events. Relations between the Unions and the Respondent had a fluid quality, particularly after the meeting of October 12 at the Board's Regional Office. In effect, the request at that con- ference for a bearing was met with a threat of "a sidewalk fight." A few days later, with no other warning, the strike began, the Unions seeking through economic action what they decided not to secure through use of the Board's processes. That the Unions had a perfectly legal right to exert economic pressure upon the Respondent cannot, in a realistic sense, alter the fact that it was bound to have some effect on Thornton. Thus the start of the strike itself was a preface to much of the feeling which followed it. It is clear from the record as a whole, as well as the demeanor of the witnesses, that considerable bitterness and hos- tility between the disputants developed during the course of the strike, much of it focusing on repeated contests between Thornton, on the one hand, and strikers and Hetzer and Finkel, on the other, for the support of employees who had not joined the strike or those whom the Respondent employed as replacements. The behavior patterns of individuals often interlock in such situations. One, word leads to another, feeding upon latent personal prejudices until childhood traits, often assuming unlawful forms, become dominant in the conduct of adults. Once the disputants were engaged in the arena of economic pressure, their attitudes and motivations were subject to a different climate and to different operable facts. In the light of an appraisal of the whole record, as well as observation of the participants in the controversy, and without in the least condoning intemperate utterance and unlawful conduct, I am unable to conclude that Thornton's behavior during the strike is a proper measure of his motivations in questioning the Unions' claim of representation. In urging that Thornton's conduct prolonged the strike, it may be assumed that what the General Counsel has in mind is that irrespective of the causes of the strike, Thornton's unlawful behavior converted it into an unfair labor practice strike. That position bears on the right of the strikers to secure rein- statement, notwithstanding the fact that the strikers' places were filled by November 2. An employer forfeits the right to replace strikers permanently as of the date of conversion of a strike into an unfair labor practice strike.e' It may be that Thornton's.conduct prolonged the strike and at some point changed its character. But before one can reach such a conclusion, it is necessary to meet the focal question of the nature of the strike prior to November 2. The credited evidence -establishes only one violation of Section 8 (a) (1) between the start of the strike and November 2. That was Thornton's statement to Tobias that the latter would not be reemployed. Such misconduct did not convert the nature of the strike. As of November 2, the motivations for the strike, and the premises upon which it was based, were still the same as when it began. Because of the posture of the strike on that date, the Respondent, irrespective of Thornton's later misconduct, was not thereafter under a legal obligation to discharge permanent replacements to make places for strikers who applied for reinstatement. There is no evidence that there were any vacancies' in the plant 87 Old Town Shoe Company, 91 NLRB 240; Illinois Bell Telephone Company, 88 NLRB 1171. '88 There is some evidence that Thornton during the restaurant incident made some pro- posal , somewhat obscurely stated by two of the witnesses , that he would be willing to reemploy strikers. That does not establish that there were vacancies. It may merely mean that he was willing to discharge some replacements . The same may be said of the evidence that Alani expressed willingness to reemploy Bahno, Bachman , and Kreuzer ( it may be noted that the evidence was to the effect that the overture to Kreuzer was made at the start of the strike and that to Bahno and Bachman long after November 2). THE JACKSON PRESS, INC. 949 at any time after November 2. Accordingly, I find and conclude that the Re- spondent did not, in response to the application for reinstatement made on March 31, 1950,88 in behalf of the striking employees, fail and refuse to reinstate them.9°. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent, set forth in Section III, above, occurring in connection with the operations of the Respondent 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 burden- ing and obstructing commerce and the free flow of commerce. V. THE REMEDY It has-been found that -the Respondent has engaged in conduct which inter- feres with, restrains, and coerces employees in the exercise of rights guaran- teed, to them, by the Act. I shall, therefore, recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been concluded that there is insufficient evidence to establish that the Respondent attempted to bribe officials of the Unions, unlawfully refused to Bargain .with the Unions, and discriminatorily refused and failed.to rein- state the 'employees named in the complaint. Accordingly, I shall recommend that the complaint be dismissed to the extent that it alleges such unlawful conduct. Upon the basis of the foregoing findings of fact, and upon the entire record, I make the following: CONCLUSIONS of LAW 1. Franklin Union #4 and Chicago Printing Pressmen, Local #3, are labor organizations within the meaning of Section 2 (5) of the Act. 2. All of the Respondent's pressmen, apprentice pressmen, press assistants, press helpers, and apprentice press assistants, excluding supervisory employees as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. 3. Franklin Union #4 and Chicago Printing Pressmen, Local #3, were on September 20 and 22, 1949, the exclusive representatives of all the employees in the aforesaid appropriate unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. % 4. By interfering with, restraining, and coercing its employees in the exer- cise by them of the rights guaranted in Section 7 of the Act, the Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8 (a) (1) of the Act. . 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 89 The General Counsel makes no contention that Thornton's statement that he would not reemploy Tobias, although made prior to November 2, constituted a discriminatory discharge or refusal to reinstate. The General Counsel rests his claim, of reinstatement rights for Tobias, as in the case of the other strikers, upon the application of March 31, 1950 80 The Respondent contends that several of the strikers, notably Lambing, engaged in such misconduct during the strike as to disqualify them for reinstatement. In view of the conclusion concerning -reinstatement reached above, it is unnecessary to analyze the evi- dence bearing on alleged misconduct, or to consider whether any of the strikers engaged in disqualifying misbehavior. 974176-52-vol. 96-61 950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 6. The Respondent has not discriminated with.respect to the hire and tenure of employment of the employees named in Appendix A of the complaint in this proceeding, in violation of Section 8 (a) (3) of the Act. 7. The Respondent has not unlawfully refused to bargain with the Unions as the exclusive representative of the aforesaid appropriate unit, in violation of Section 8 (a) (5) of the Act. [Recommended Order omitted from publication in this volume.] TOWNSEND SASII, DOOR & LUMBER COMPANY and UNITED FOOD WORK- ERS OF AMERICA, LIU 1758, CIO, PETITIONER TOWNSEND SASH, DOOR & LUMBER COMPANY and INTERNATIONAL UNION OF UNITED BREWERY, FLOUR, CEREAL, SOFT DRINK & DISTILLERY WORKERS OF AMERICA, CIO, PETITIONER. Cases Nos. 10-RC-1436 and 10-RC-1473. October 18, 1951 Decision, Order, and Direction of Election Upon a petition duly filed, a hearing was held before Jerold B. Sindler, hearing officer. The hearing officer's rulings made at the hearing are free from prejudical error and are hereby affirmed., Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Herzog and Members Houston and Murdock]. Upon the entire record in this case, the Board finds : I At the hearing the Employer moved to dismiss the petitions in these cases on the grounds that (1) no appearance was made by the Petitioner in Case No. 10-RC-1436, and (2) no proof of compliance with Section 9 (f), (g), and (h) of the Act had been submitted at the hearing by either of the two Petitioners. The hearing officer referred this motion to the Board. As to (1), although the Petitioner in this case was duly served with notice of this hearing, it did not appear. We view the failure of the Petitioner to appear at the hearing as a disclaimer of interest in the representation of the employees of the Employer. Denver Smoked Fish Co., 78 NLRB 631 ; Hartsville Manufacturing Company, 79 NLRB 206. See also Merchants Fire Dispatch, 83 NLRB 788. The motion of the Employer to dismiss the petition in Case No. 10-RC-1436 is hereby granted. Regarding (2), the fact of compliance of a labor organization which is required to comply is a matter for administrative determination and is not litigable by the parties. Moreover, the Board is administratively satisfied that the Petitioner is in compliance. See Sunbeam Corporation, 94 NLRB 844; Swift & Company, 94 NLRB 917. Cf. N. L. R. B. v. Highland Park Manufacturing Company, 71 S. Ct. 489. The motion to dismiss the peti- tion in Case No. 10-RC-1473 is hereby denied. The Employer also objects to the hearing officer's refusal to issue a subpena for Samuel J. Smith, a representative of the Petitioner, in Case No. 10-RC-1436, contending that the hearing officer thus failed to comply with the provisions of the Act and the Board's Rules and Regulations. We find that the hearing officer erred in denying the Employer's request for the issuance of a subpena, although, for good cause, he could thereafter have revoked such a subpena, either on the motion of any of the parties at the hearing or on his own motion. Bill Heath, Inc., 89 NLRB 67; Burnup & Sims, Inc'., 95 NLRB 1130. Ilow- ever, as we have granted the Employer's motion to dismiss the petition in Case No. 10-RC-1436, wherein the testimony of the representative who signed that petition was sought to be adduced, we find that the Employer has not, in any event, been prejudiced by the refusal to issue such subpena, and that the issue raised by the request for subpena has become moot. 96 NLRB No. 134.